Gordonsville Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 563 (N.L.R.B. 1980)

GORDONSVILLE INDUSTRIES. INC
Gordonsville Industries, Inc. and Amalgamated
Clothing and Textile Workers Union, AFL-
CIO, CLC. Cases 5-CA-9050, 5-CA-9308, and
5-RC- 10242
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MI MBI RS
JENKINS AND PENEI.O
On November 8, 1979, Administrative Law
Judge Bernard Ries issued the attached Decision in
this proceeding. Thereafter, General Counsel, the
Charging Party, and Respondent filed exceptions
and supporting briefs, and Respondent filed reply
briefs to the General Counsel and the Charging
Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order," as
modified herein.
I Respondent has filed a number of procedural and evidentiary excep-
tions to the rulings of the Administrative Law Judge made during the
hearing, particularly to the quashing of its subpena served on counsel for
the General Counsel The record shows that on July 28. 1978, Respond-
ent served its subpena during the initial course of the hearing, whereupon
the Administrative Law Judge quashed the subpena substantially in its
entirety. Respondent sought to obtain statements, affidavits, and other
documents from the General Counsel's investigatory files. On September
5, 1978, Respondent filed a motion for enforcement of its subpena with
the General Counsel in Washington, D.C. which was denied on Septem-
ber 20. 1978. On August 2 1978. Respondent also filed a motion. in ac-
cordance with Sec 102.118 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, requesting that counsel for the
General Counsel be allowed to voluntarily turn over to Respondent cer-
tain items. The General Counsel denied this request on August 10, 1978.
Respondent's exceptions contain the same arguments made before the
Administrative Law Judge and the General Counsel. We find no merit to
these exceptions X.L.R.B. v Vapro Blast Manufacturng Company, 287
F.2d 402, 405-408 (7th Cir. 1961); Woodlawn Hospital v. N.L.R.B. 596
F.2d 1330 (7th Cir 1979).
a Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings.
3 The Charging Party has excepted to certain aspects of the remedy
and Order recommended by the Administrative Law Judge, and seeks
certain remedies in addition to those that we have adopted. We are in
agreement with the Administrative Law Judge that Respondent has com-
mitted serious unfair labor practices: however as Respondent does not
have a history of violations of employee rights, we shall not grant any
additional remedies Nevertheless. in view of the serious unfair labor
practices committed by Respondent, the Administrative Law Judge. in
his recommended Order, included a broad order provision as remedy In
our opinion, the egregious misconduct engaged in herein by Respondent
clearly "demonstrates] a general disregard for [its] employees' fundamen-
tal statutory rights" HclAnor t od. Inc. 242 NlRB 1357, (1979). Ac-
252 NLRB No. 54
1. The General Counsel and the Charging Party
have excepted to the Administrative Law Judge's
dismissal of the allegation that Respondent violated
Section 8(a)(l) of the Act by conducting a survey
of its employees that constituted coercive interro-
gation because it generated responses from employ-
ees regarding their union sentiments. In support of
this allegation, the General Counsel and the Charg-
ing Party relied upon the fact that the survey con-
tained several open-ended questions which a sub-
stantial number of employees responded to with an-
swers that indicated their union proclivities. Fur-
ther, the survey required the employees to fill in
their department, shift, sex, and length of service.
The Administrative Law Judge found that this evi-
dence furnished no basis for concluding that Re-
spondent engaged in unlawful interrogation be-
cause the survey did not explore employee atti-
tudes about unionization, and employees were told
that the forms would be destroyed after scoring.
We find merit to the General Counsel's and the
Charging Party's exceptions.
In conducting the survey, Respondent informed
its employees that the survey was confidential.
However, requiring employees to write in their de-
partment, age, sex, and length of time employed
destroyed whatever anonymity existed, and clearly
gave information which could serve to identify em-
ployees. 4 The mere stating that a survey is confi-
dential does not meet the Board's standards for the
valid, nondiscriminatory surveying of employees
either during a union organizing campaign and/or
after a demand for recognition has been made. 5
While it is true that the survey did not specifically
contain a question directly polling employees'
union sentiments, it is obvious in this case that the
question, "[W]hat would you like to see done to
make your company a better place to work?" had
that effect, as a number of employees responded
with answers which revealed their union senti-
ments. This is no less impermissible than if the
question had been asked directly, especially since it
occurred within the context of other violations of
Section 8(a)(1). 6 In addition, Respondent's survey
consultant testified that he was informed rather
abruptly by some of the employees in the various
survey sessions that there was a union organizing
campaign being conducted, and they questioned his
presence and indicated that they did not believe his
assurances regarding confidentiality and the ulti-
cordingly. we find. in agreement with the Administrative Law Judge,
that a broad order is warranted in this case.
Wonder MLarket. Inc . 246 NLRB No. 56 (1979)
' Strukne (Construction Co., Inc.. 165 NLRB 1062 (1967)
' Dunn Brothers. Incorporated. t/a Fisher Stove Works, 235 NLRB 1032,
1(42 (1978)
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mate destruction of the survey. Thus, there is suffi-
cient reason to think the employees held contrary
beliefs. This indicates that, given the circumstances
of this case, and contrary to the Administrative
Law Judge, the necessary confidentiality and assur-
ances against reprisals were lacking during the ad-
ministration of the survey, and that the responses
generated by some of the subjective open-ended
questions had the effect of infringing upon the em-
ployees' Section 7 rights. Therefore, we conclude
that the survey constituted an unlawful interroga-
tion of employees in violation of Section 8(a)(1) of
the Act.
2. The Charging Party excepted to the Adminis-
trative Law Judge's dismissal of the allegation that
Respondent violated Section 8(a)(l) of the Act by
creating the impression of surveillance during an
October 22, 1977, conversation between Respond-
ent's supervisor, Fernandez, and employee
Baugher. Baugher testified that during this conver-
sation he was asked "if he] knew how many
people in that department were for the Union," to
which he (Baugher) replied "no." We are in agree-
ment with the Administrative Law Judge that this
did not constitute surveillance. However, we do
find that this questioning of Baugher constituted il-
legal interrogation regarding employees' union ac-
tivity, and therefore was violative of Section
8(a)(1) of the Act. 7
3. The Administrative Law Judge found that the
Union had not been designated as bargaining repre-
sentative by a majority of Respondent's employees
on September 26, 1977, the date that the Union
made its bargaining demand and also the date when
Respondent embarked on its unlawful conduct, but
that the Union had a continuing majority beginning
on September 27, 1977. He based this finding on
his determination that of the 215 authorization
cards secured by the Union, 50 of them should not
be counted and 14 out of the 50 were invalid desig-
nations, including the cards of Carter, Marks, and
Lam. Therefore, out of a stipulated unit of 333 eli-
gible employees in the bargaining unit existing on
September 26, the Union had secured only 165
valid cards and it needed 167. Contrary to the Ad-
ministrative Law Judge, and in agreement with the
Charging Party, we find, for the reasons set forth
below, that the cards signed by Carter, Marks, and
Lam are valid designations, and we shall count
I Although the complaint alleged that Fernandez' conduct violated the
Act by creating the impression of surveillance, we are not precluded
from finding a violation under an alternate theory. It is well established
that, where, as here, the facts underlying the violation are fully devel-
oped at the hearing, an unfair labor practice finding can be based on the
issues litigated as well as those specifically alleged in the complaint. C &
E Stores, Inc.. C & E Supervalue Division, 221 NLRB 1321 (1976); Phillips
Industries, Incorporated, 172 NLRB 2119, n. 2 (1968); Hanes Hosiery, Inc.,
219 NLRB 338 (1975).
their cards in determining the Union's majority
status.
Della Carter testified that she signed her card on
September 22, 1977, and that she did not read the
card, but she knew what the card was for. On re-
cross-examination Respondent's counsel brought up
the fact that Carter's card stated she worked in
"Mill A" when in fact she worked in "Mill E."
Carter's explanation was simply that she made a
mistake as she was talking as she signed the card.
She also testified that she works the A shift, and
that there were no other mistakes on her card even
though Respondent's counsel pointed out there
were what appeared to be erasures on the card.
Upon examination by Administrative Law Judge
Ries, Carter verified that the signature on the card
was hers, and that she started working in Mill E in
May 1977. On redirect examination Carter recalled
that she had worked in Mill A during the July
plant shutdown. The Administrative Law Judge,
while crediting Carter with being an honest wit-
ness, nevertheless concluded that her card was in-
valid because she wrote Mill A instead of Mill E
on her card, and she could not account for the era-
sures. Carter's card was entirely filled out in her
own handwriting, and she verified that the signa-
ture and date were hers. It is our opinion, absent
some contradictory evidence that her card bore a
forged signature or that there was a misrepresenta-
tion made as to the purpose of the card, 8 the fact
that she could not explain why she wrote in Mill A
instead of Mill E and the erasures are not of such
significance as to invalidate her card.9 Therefore
her card will be counted toward the Union's ma-
jority.
The Administrative Law Judge found Nancy
Marks' card invalid because she gave "some very
convoluted testimony as to when she signed it and
the Regional date stamp on the back was that of
May 1978." Marks testified that she read the card;
that the signature on the card was hers; and, in re-
sponse to the Administrative Law Judge's question-
ing, that she wrote in the date of September 26,
1977. She also identified her brother-in-law as the
person who gave her the card, but she could not
remember to whom she returned the card. On voir
dire, after some initial confusion, it was finally de-
termined that Marks did not have a copy of her
card at the time she filled out the General Coun-
sel's card questionnaire,' 0 and therefore the an-
swers she gave on the questionnaire were a result
8 Keystone Pretzel Bakery, Inc., 242 NLRB 492, 494 (1979).
M cEwen Manufacturing Company and Washington Industries. Inr., 172
NLRB 990, 992 (1968).
o1 An unsworn questionnaire executed many months after the initial
card signing.
564
CGORDONSVILLE INDUSTRIES, INC
of her inability to remember specifics as to the date
she signed the card and who gave the card to her.
A review of Marks' testimony convinces us that
her testimony, even though characterized as con-
voluted by the Administrative Law Judge, should
not impugn the authenticity of her card as there
was no showing by Respondent that the signature
of Marks was induced by misrepresentation or co-
ercion or other fraudulent methods. " Further, the
evidence shows that the Union submitted its first
batch of cards to the Regional Office on September
29, 1977, and its second batch of cards were re-
ceived in the Regional Office on May 17, 1978.
Marks' card was included in the second batch. The
record does not affirmatively establish the exact
time that any card come into the possession of the
union representatives, nor is it affirmatively shown
that any card was not recieved by a union repre-
sentative on the date which appears thereon. Fur-
ther, our scrutiny of Marks' card convinces us that
all of the entries were made by her. Therefore, we
conclude that her card was timely as it satisfies all
of the other necessary criteria, and we shall count
it toward the Union's majority. '2
James Lam testified that he was aware of the
Union's organizing drive and the distribution of the
Union's blue cards. He stated that he was working
on a machine when Ernest Williams came up to
him and asked him "would he sign a union card, a
little blue card, to let the union come for a vote, so
they could have an election." Lam readily agreed
and signed the card. Lam also testified that "he did
not read the whole card because he was working
and Williams said he had to hurry up because the
foreman was coming, that it may have got him
[Williams] in hot water." Further, Lam stated that
he had previously belonged to the Carpenters local
and had signed and carried a membership card
which was punched each month when he paid his
dues.
In finding this card invalid, the Administrative
Law Judge held in effect that because Lam dis-
avowed having read the card and no other purpose
was communicated to him other than "to let the
union come for a vote" the solicitation constituted
a representation that the only purpose of the card
was to get an election. We disagree.
The evidence is clear that Lam read parts of his
card as he filled it out. Thus, the solicitor's com-
ments could not have diminished Lam's belief that
' NVL.R.B. v. Gisel Packing Co., Inc., 395 U.S 575, 584 (1969); Jeffrey
Manufacturing Division. Dreser Indusriws, Inc., 248 NLRB 33 (1980).
12 This is consistent with the Administrative Law Judge's timeliness
finding regarding employee Dickerson's card, Cato Show Printing C(o,
Inc.., 219 NLRB 739, 756 (1975) (Combes and Cory) J P Steven &S Co,
Inc. Gultitan Division. 179 NLRB 254, 271 (1969) (Floyd and Loa'er)
Fabrcoators. Incorporated. 168 NLRB 140 (1967)
he was authorizing the Union to represent him.
Lam has extensive prior knowledge and experience
as a member of the Carpenters Union. Therefore,
the totality of the circumstances convinces us that
Lam's card constituted a valid designation. 13 Ac-
cordingly, we shall count Lam's card toward the
Union's majority.
In view of our findings above, we conclude that
the Union represented a majority of Respondent's
employees on September 26, 1977, and thereaf-
ter.' 4 We will therefore find that Respondent vio-
lated Section 8(a)(5) by refusing to recognize the
Union on and after September 26, 1977.'5
AMENDED CONCUSIONS 01F LAW
1. Substitute the following for Conclusion of
Law 4:
"4. By, in September. October, November, and
December, 1977 and June 1978, coercively interro-
gating employees regarding their union sympathies
through means at a survey; conducting a survey
and in other ways expressly and impliedly promis-
ing to rectify employee grievances and to grant
benefits; coercively interrogating employees re-
garding their and other employees union senti-
ments; threatening employees with loss of benefits,
loss of jobs, blacklisting, plant closure, and a refus-
al to bargain in the event of a union election victo-
ry; restricting and harassing employees; interfering
with Board processes by attempting to influence
the testimony of employees in Board proceedings;
granting wage increases; and announcing the exist-
ence of a profit-sharing plan, Respondent violated
Section 8(a)(1) of the Act."
2. Substitute the following for Conclusion of
Law 6:
"6. By refusing, on and after September 26, 1977,
to recognize and bargain with the Union as the ex-
clusive collective-bargaining representative of the
employees in the unit described above, Respondent
violated Section 8(a)(5) and (1) of the Act."
":l CGssel Packing Co.. Inc.. supra: Levi Straus d C. 172 NLRB 732
(19(8): Medley Distilling Company, Inc., 187 NLRB 84. 85, fn. 8 (1970)
Our finding here is consistent with the Administrative Law Judge's
crediting of employee Cromer's prior knowledge and experience as a
union member, and does not represent any extension of Cumberland Shoe
Corporation, 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir 1965)
See also Tiplon Electric Company and Professional Furniture Company, 242
NLRR 202 (1979) enfd 104 LRRM 2073, 88 LC 1I2005 (8th Cir 1980).
' As of that date, the Union had obtained 168 cards in a unit of 333
employe)es; and, as of October 3, 1977. 204 cards in a unit of 326
in Trading Port, Inc., 219 NLRB 298 (1975); The Kroger Company, 228
NL.RB 149 (1977) Member Jenkins, while concurring in the result
reached herein, continues to adhere to his position as stated in Idak Cn-
valesclnt C'entrer of Fall River, Inc. d/b/a Crawford House. 238 NLRB 410
(1978) and therefoire would order Respondent to bargain with the Union
effective September 26. 1977, the date Respondent commenced its unfair
labohr practices
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Gordonsville Industries, Inc., Gordonsville, Virgin-
ia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) Coercively interrogating employees regard-
ing their union sympathies by means of a survey;
interrogating employees regarding their and other
employees' union sentiments; threatening employ-
ees for assisting or supporting the Union, or any
other labor organization, with loss of benefits, loss
of jobs, blacklisting, plant closure, or a refusal to
bargain; promising expressly or impliedly to rectify
employee grievances or to grant benefits to em-
ployees to induce them to refuse to support the
Union, or any other labor organization; restricting
or harassing employees; granting wage increases;
announcing the existence of a profit-sharing plan;
and interfering with Board processes by attempting
to influence the testimony of witnesses in Board
proceedings."
2. Substitute the following for paragraph 2(b):
"(b) Recognize and, upon request, bargain col-
lectively with the Union, as the exclusive repre-
sentative of the employees in the appropriate unit
set forth above, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WIl.l NOT refuse to recognize and bar-
gain collectively in good faith, upon request,
with Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC, as the ex-
clusive bargaining representative of all em-
ployees in the appropriate unit set forth below,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment.
WE WILL NOT discharge or otherwise dis-
criminate against employees to discourage
their membership in , or activities on behalf of,
Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, or any other labor
organization.
WE WILL NOT coercively interrogate em-
ployees regarding their or other employees'
union sentiments by means of a survey or any
other method; threaten employees for assisting
or supporting the Union, or any other labor
organization, with loss of benefits, loss of jobs,
blacklisting, plant closure, or a refusal to bar-
gain; promise expressly or impliedly to rectify
employee grievances or to grant benefits to
employees to induce them to refuse to support
the Union, or any other labor organization; re-
strict or harass employees; grant wage in-
creases; or announce the existence of a profit-
sharing plan.
WE WILL NOT interfere with Board process-
es by attempting to influence the testimony of
witnesses in Board proceedings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7
of the Act.
WE WILL recognize and, upon request, bar-
gain collectively with the Union, as the exclu-
sive bargaining representative of the employ-
ees in the appropriate unit set forth below,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment
and, if an understanding is reached, embody
such understanding in a signed agreement. The
appropriate unit is:
All production and maintenance employees
employed by us at our Gordonsville, Virgin-
ia, location, but excluding office clerical em-
ployees, guards, professional employees, and
supervisors as defined in the Act.
566
GORDONSVILLE INDUSTRIES. INC.
WE W11. offer Stephen Bolding immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or any other rights or privileges, and
WE WILl compensate him, with interest, for
any loss of pay he may have suffered because
we terminated him.
GORDONSVII.I.E INDUSTRIES, INC.
DECISION
BERNARD RIES, Administrative Law Judge: This pro-
ceeding was heard in Charlottesville, Virginia, on 24
days in July, August, September, October, and Novem-
ber, 1978. At the request of the parties, briefs were not
filed until April 1979.
Consolidated in this proceeding are two unfair labor
practice complaints and certain unresolved questions aris-
ing out of an election held among Respondent's employ-
ees in 1977. The complaint in Case 5-CA-9308 is identi-
cal in all respects to the complaint in Case 5-CA-9050
except that the former alleges, in addition to allegations
of 8(a)(l) and (3) violations, a violation of Section 8(a)(5)
and a request for the issuance of a remedial bargaining
order. The record does not clarify why this procedure
was adopted; in any event, the two complaint cases and
the representation case are now consolidated for deci-
sional purposes.
The pleadings establish that assertion of jurisdiction
over Respondent is appropriate here and that the Charg-
ing Party is a "labor organization" within the meaning of
the statute. On the basis of the entire record, the briefs,
and my recollection of the demeanor of the witnesses, I
make the following findings of fact, conclusions of law,
and recommendations.'
I. BACKGROUND EVENTS
The Union formally commenced its campaign at Re-
spondent's fabric manufacturing factory in Gordonsville,
Virginia, on September 18, 1977, when organizer Harold
Bock met with 15 employees who were to become the
first wave of authorization card solicitors. Card-signing
proceeded quickly; virtually all of the 215 cards submit-
ted in this case bear September dates. On September 23,
the Union asked Respondent, in writing, for recognition;
the request was rejected by letter of September 27. On
September 29, the Union filed a petition for an election
with Region 5 of the Board. The parties agreed to a
Stipulation for Certification Upon Consent Election, and
an election was held on December 6. The tally of ballots
showed that of 345 ballots cast, 144 were cast for the
Union, 143 against the Union, and 58 were challenged.
II. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1)
The complaint, as amended at the hearing, alleges that
Respondent's agents, on various occasions in September,
October, November, and December, 1977, and again in
June 1978, committed violations of Section 8(a)(l),
which broadly makes it unlawful for an employer "to in-
terfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7."
A. The September Survev
Some 8 days after the union campaign began, Re-
spondent conducted a survey of the work-related opin-
ions and attitudes of all its employees. The complaint al-
leges a violation of Section 8(a)(1) by "the conduct of a
consultant . . . in conducting a survey of employees and
in soliciting employee grievances in order to persuade
them not to support the Union." At the hearing, to
elaborate on the thrust of the allegation, counsel for the
General Counsel said, "I'm suggesting both that the
survey itself and the means ui!ized would be solicitation
of grievances in violation of the Act and that it would be
a means that the Company would use to learn the union
sentiments of its employees in an impermissible manner
in violation of 8(a)(1)."
Gary Miller, Respondent's acting plant manager at the
time, testified that the survey conducted on September
26 and 27 was instigated by reports of low employee
morale, and that he did not know of the existence of the
Union effort until shortly after the survey began on Sep-
tember 26, when the union's recognition request was re-
ceived. The lack of veracity of that testimony was ex-
posed by the evidence given by one former official of
Respondent and two present managers.
Francis Gehring, until January 1978 the executive vice
president of Respondent's parent corporation, Liberty
Fabrics of New York, testified that while he and Michael
Gottlieb, the president of Liberty, were in Europe in
September 1977, he received a call from Gary Miller ad-
vising of the union campaign. Miller was told to contact
Respondent's local counsel for advice. As a result of that
advice, Miller retained a Bristol, Tennessee, personnel
consulting firm called "SESCO." I found Gehring to be
a most credible witness, and I do not believe that his tes-
timony was influenced by the fact that Respondent had
discharged him and, later, his son. In addition, Gehring's
testimony was supported by that given by Production
Control Manager Oliver McKeown, and his assistant,
Raymond C. Deane, Jr., that they were quite aware of
the extensive Union solicitation before the survey began.
It is, indeed, absurd to suggest that this hasty project
was undertaken, pursuant to a trans-Atlantic telephone
call, because of some vague concern about employee
"morale." Miller's testimony that the "first day he
learned of the union campaign" was when he received
the demand letter is effectively refuted by the fact that,
on that very day, the production control managers spoke
to their clericals against the Union, as discussed infra,'
with McKeown and Deane telling Nancy McDaniel, as
they both conceded, that "[wle thought that we knew
how she felt." McKeown testified that, prior to Septem-
ber 26, there "had been rumors of union activity" in
t Certain errors in he transcript have been noted and corrected
567
DECISIONS OF NATIONAL .ABOR RELATIONS BOARD
which the name of Nancy McDaniel, as well as "quite a
few" other employees, was mentioned.2
On September 26 and 27, two employees of SESCO,
Tom Forshee and Gary Blankenbecler, conducted a
survey of employee attitudes at the plant. They used a
standard printed survey form which asked general ques-
tions pertaining to employee views about benefits and
working conditions; all but 4 of the 64 questions were to
be answered by checking "yes" or "no" boxes. Plant em-
ployees were brought into conference rooms by supervi-
sors, in groups ranging in size from about 5 to 35. The
employees were told only that the purpose of the survey
was to "get opinions," were asked to be frank, and were
advised that the survey was confidential.3 There is no
place on the form for an employee's name; it asks, how-
ever, that the employee identify his or her sex, depart-
ment, shift, and length of service.
The survey results were computer tabulated by
SESCO, with the responses of the 326 employees being
divided into 28 survey groups according to work loca-
tions and, sometimes, shift. A typical breakdown might
show, for example, that of 24 employees in a particular
group, 12 responded favorably to the question "Do the
people in your community think this is a good company
in which to work," 9 responded unfavorably, and 3 did
not respond. For purposes of overall evaluation, the 64
questions were also amalgamated into 12 general topics
(e.g., "Immediate supervisors," "Pay," "Communica-
tion"), and the group responses determined.
On October 6, Plant Manager Miller sent letters to the
participating employees, thanking them for filling out the
surveys, stating that he wished to discuss the survey re-
sults in departmental meetings the following week, and
expressing his "hope that these meetings will contribute
to our common goal of making Gordonsville Industries
the best possible place to work." Over a 3-to 4-day
period the next week, Miller conducted meetings about
the survey with groups of 10-15 employees. Employee
Stephen Bolding testified that at one such meeting,
Miller said that the Company had "flunked" the test and
had not realized the extent of the problems within the
plant. When an employee asked about a promised wage
increase, Miller "said they were working on it" and also
said that they would work on these problems now that
"they were aware of them." 4
The survey results were also used for another purpose.
Gehring testified that he met with Forshee and Blanken-
becler on October 4 to discuss their findings; the discus-
sion centered on the conclusion that "particular supervi-
2 Tom Forshee who conducted the subsequent survey, conceded that
when Miller first spoke to him (according to Forshee, in the week pre-ceding September 26), Miller mentioned being disturbed by employee
talk that "a union would be beneficial."
The form itself states that he success of the company depends upon
the attitude of the employees, and "this is the reason why your company
wants to know what you think and how you feel about your 'job.' Yourpersonal opinions and suggestions on how to make this a better and morepleasant place to work will be helpful to us in making our recommenda-
lions to your company." The form stresses that it is "confidential" and
that "YOU ARE NOr ASKED TO SIGN YOUR NAME," and it notes that theforms are taken to the offices of the consulting company immediately
and, after being scored, are destroyed.
I The General Counsel expressly stated at the hearing that this state-
ment was not alleged separately to violate the Act.
sors were identified as sources of problems to be investi-
gated." Subsequently, Gehring said, further investigation
confirmed the suspicion that David May, manager of the
elastic mill, "was responsible for a substantial negative
rating," and he was "moved out" to the West Coast. Bill
Silette, manager of the warping plant, was "perceived by
SESCO to be a more people oriented person" and was
appointed to May's position. Jim Spencer, superintendent
of lace knitting, "got a very poor rating" and was also
transferred.
The evidence shows that Respondent had never previ-
ously conducted a survey of employee attitudes toward
their working conditions, nor had it established any sys-
tematic procedure for receiving and analyzing employee
complaints.
The language of the Board in Reliance Electric Compa-
ny, Madison Plant Mechanical Drives Division, 191 NLRB
44, 46 (1971), is made to order for the present case:
Where, as here, an employer, who has not previous-
ly had a practice of soliciting employee grievances
or complaints, adopts such a course when unions
engage in organizational campaigns seeking to rep-
resent employees, we think there is a compelling in-
ference that he is implicitly promising to correct
those inequities he discovers as a result of his in-
quiries and likewise urging on his employees that
the combined program of inquiry and correction
will make union representation unnecessary.
Given my conviction that the survey was, in the General
Counsel's words, "a specific, calculated response to the
employee-union organizational campaign," there can be
little doubt that the purpose of this extraordinary and un-
precedented action was to convey to employees that the
days of benign neglect were over. "[T]he more imminent
a representational election, the greater the presumption
that management's expression of concern for employee
welfare has an impermissible motive." N.L.R.B. v. Rich's
of Plymouth, Inc., 578 F.2d 880, 883 (st Cir. 1978).
There can also be little doubt that the thought intend-
ed was the thought communicated; employees whose
opinions about their employment had never been elicited
suddenly found, 8 days after the union cards began to
appear, that their observations were prized. Their likely
belief that this was Respondent's way of promising a
fresh start could only have been confirmed thereafter by
Miller's October 6 letter to each of them (at a time
when, Respondent is willing to admit, it was fully, for-
mally, and officially on notice of the union campaign),
expressing his hope that the quickly scheduled depart-
ment meetings about the survey results "will contribute
to our common goal of making Gordonsville Industries
the best possible place to work." The subsequent transfer
of three supervisors is in accordance with the attitudes
expressed by the employees in the survey certainly
added dramatic confirmation for the affected employees,
and those aware of the circumstances, that the intent of
568
GORDONSVILLE INDUSTRIES, INC.
the survey had indeed been not only to elicit, but to
repair, grievances. '
I conclude that the purpose and effect of the survey
was to impliedly promise employees that, in the future,
Respondent intended to bend every effort to rectify their
grievances, and I further conclude that the underlying
motive for the survey was to erode employee support for
the Union. Section 8(a)(1) prohibits such behavior.
I do not believe, however, that the survey constituted
coercive "interrogation" as well. The survey form did
not explore employee attitudes about unionization; it in-
quired only into employee evaluation of working condi-
tions. Obviously, disclosure that an employee did not like
the company scarcely demonstrated that he favored the
Union. The employees were told that the forms would
be destroyed after scoring, and there is no reason to
think they held a contrary belief. I shall therefore recom-
mend dismissal of the allegation insofar as the argument
is advanced that the survey constituted unlawful intru-
sion into union sentiments. 6
B. Alleged Unlawful Interrogation on September 26
As amended at the hearing, the complaint alleges that
on September 26, Supervisor Oliver McKeown violated
the Act by "interrogating employees concerning union
activities and implying that benefits would be withheld
because of the union activity and the solicitation of
grievances."
Nancy McDaniel, a clerical employee who worked
with four other clericals in the offices occupied by Pro-
duction Control Manager McKeown and his assistant
manager, Raymond Deane, actively solicited union cards
and distributed handbills.7 On September 26, during the
employee survey discussed supra, McDaniel opted not to
fill out the form given her and, contrary to the desire of
the surveyor, took the blank form with her when she left
the room.
That same afternoon, McKeawn and Deane called for
of their office clerical employee who worked with 4
other clericals into McKeown's office, two individually
and the other two together. When McDaniel's individual
turn came, McKeown told her that they wanted to dis-
cuss the Union, and McDaniel said she would prefer to
return to her job. Deane said that he thought she knew
how he felt about a union "and there is no doubt in our
mind as to how you feel." Further discussion by
s Although the timing of these personnel actions does not appear in the
record, they quite probably occurred prior to January 1978, when Gehr-
ing, who testified about the transfers, severed his relationship with Re-
spondent
6 Dunn Brothers. Incorporated, /a Fisher Stove Works, 235 NLRB 1032
(1978), cited by the General Counsel, presents different considerations.
There, a psychologist personally interviewed employees about their atti-
ludes, subsequent to a strike and prior to an election. The relative tend-
ency of such direct examination to intimidate identifiable employees is
plainly absent in the present case, where employees anonymously filled
out forms. And cf Apple Tree Chevrolet. Inc., 237 NLRB 867 (1978),
where an employee opinion survey conducted by the same psychologist
as in Dunn Brothers was held not to be coercive interrogation because
there was no reference to union actisities.
I McDaniel is alleged to have been discriminated against by Respond-
ent's refusal to reinstate her after her discharge on October 25. The par-
ties acknowledged hat, as an office clerical employee, she was outside
the appropriate bargaining unit
McKeown about the disadvantages of the Union and Re-
spondent's past beneficence to McDaniel followed, ac-
cording to McDaniel: "[W]e had been one big happy
family and any time I wanted to come in and talk, I was
able to do that. If a union came in, I would not be able
to do that and they did not want a third party. Then he
went on to tell me that the plant had been good to me.
They had given me a leave of absence they had given no
one else. They gave me a special vacation that they gave
no one else."
Testifying about the interview, McKeown and Deane
basically confirmed McDaniel's account, except that
McKeown stressed that the special considerations given
her were only alluded to in response to her assertion that
Respondent had done nothing for the employees. Also,
while McKeown could not recall reference to a "third
party," Deane remembered "talking about having a third
party involved in the relationship .... We expressed to
her the danger or the problem there would be when
dealing with a third party, that our atmosphere that was
in our department was very easy, very lax, open-door
policy, first-name basis."
In my view, the conversation with McDaniel did not
constitute "interrogation," because no questions were
asked. I am further inclined to believe the testimony of
McKeown that he referred to the special consideration
given to McDaniel in the past only in response to her
claim that Respondent had done nothing for her.8 I also
doubt that McDaniel and the other employees felt co-
erced by being called into McKeown's office, since they
spent their working life immediately outside that office
and were frequently in the managers' offices.
The fact that a union is selected does, to some extent,
necessarily formalize the relationship between employer
and employee, usually substituting a written code of be-
havior for prior discretion and making unlawful direct
employer-employee negotiations about changes in, or de-
viations from, existing practice. There is no prohibition
against pointing out that fact. However, McDaniel testi-
fied that McKeown said that "[i]f a union came in, I
would not be able" to "come in and talk" as she had in
the past. While I do not generally find McDaniel's testi-
mony reliable, see infra, here I think that Deane's testi-
mony confirms her version ("the danger or the problem
there would be when dealing with a third party . . .
open-door policy, first-name basis"). The Board has re-
cently found unlawful, as a threat of loss of benefits, "the
message that all direct dealings between the employee
and the Respondent would be banned." Sacramento
Clinical Laboratory, Inc., 242 NLRB 944 (1979). While I
doubt that McKeown intended to violate the Act by this
remark, I conclude that he did so.
C. The Restriction of Stephen Bolding and James
McDaniel The Alleged Promise to Baolding
The complaint alleges that Respondent violated the
Act when, in the first part of October, Supervisor Yal-
I McDaniel testified that the interview lasted for more than 30 min-
utes. Her brief testimony at the hearing plainly did not capture its full
scope.
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chin Ozbey "restrict[ed] employees' movement within
the plant because of tl0 ir support of the Union."
Stephen Bolding, a maintenance mechanic, was openly
and intensely active in the Union's behalf, handbilling on
some 20 occasions. Bolding testified that his primary
work lay in repairing breakdowns in production equip-
ment, and that, absent such work, he concerned himself
with the air-conditioning system.
As a maintenance mechanic, Bolding "was authorized
to go everywhere in the plant." About October 3, Bold-
ing's foreman told him that he and fellow mechanic
James McDaniel, also a union solicitor, were not to go
into the knitting department to perform their routine air-
conditioning work-"if we had a job to do in there, he
would tell us when to do it." Several days later, Bolding
asked Yalchin Ozbey, the plant engineer and a statutory
supervisor, the reason for the new procedure. Ozbey re-
plied that he had had a complaint from Foreman Carpen-
ter that Bolding and McDaniel were keeping employees
from their work. Bolding responded that they were
doing nothing more than they had in the past, and the
"only thing that had changed was the topic of conversa-
tion that had gone from hunting and fishing and girl
friends to union talk." Ozbey replied that "he had not
known if it was true or not but he had to take some kind
of action." Bolding testified that he and McDaniel were
taken off the air-conditioning work for "approximately a
week to 10 days."
Ozbey testified that it was brought to his attention that
Bolding and McDaniel, while working on the air-condi-
tioning, "were talking to knitting production people and
taking time." He therefore assigned them to other main-
tenance projects. He further said that, during their con-
versation about this restriction, Bolding asked Ozbey if
he was being removed because he was a "union man."
Ozbey said no, but, out of "curiosity," went on to ask,
"Are you really taking the time and discussing the union
subject and he told me yes." During the period of their
removal, no one assumed their routine, 2-hour-a-day job
of recording temperature and humidity and changing
charts in the knitting area, and apparently an outside
contractor performed some work on the air-conditioning
system. On occasion in this period, however, the two
were sent into the area to perform emergency work on
air-conditioning. When the machine relocation projects
to which they had been assigned were completed, they
were reassigned to their former work on the air-condi-
tioning. When they were reassigned, Ozbey told them
"don't take your time and discuss with people."
I think the General Counsel correctly asserts that the
restriction was unlawful. Ozbey's testimony makes it
clear that Bolding and McDaniel were temporarily reas-
signed because of a complaint that they were discussing
the Union with production employees, and not because
of any exigent circumstances. Bolding's testimony that
conversations with other employees had been common-
place in the past is unrefuted. 9 Plainly, Respondent was
g The only testimony presented by Respondent on this point was given
by Supervisor Edgar Perkins, who thought, but was not sure, that he had
reported Bolding and McDaniel for excessive talking. The only way he
could distinguish these two employees from all the rest of the increased
talking which was occurring in the plant was that "they had more free-
most interested in calling a halt not just to discussions,
but to discussions about the Union; Ozbey did not settle
for a cautionary reprimand, but rather removed Bolding
and McDaniel altogether during a period probably
thought important to the union campaign, and, indeed,
arranged the air-conditioning repair work to coincide
with this removal.
This rearrangement of work location, aimed at stifling
talk about a union in circumstances in which mere idle
talk had been tolerated in the past, violates Section
8(a)(l).
It is alleged that Ozbey violated the Act by "soliciting
employee grievances by telling them they could always
come to him if they needed more money or had a prob-
lem, in order to dissuade them from supporting the
Union."
In the course of a meeting by Bolding with Ozbey and
Supervisor Brown about a work-related matter on Octo-
ber 21, requested by Bolding, Ozbey raised the question
of what unions could do for employees, and there was
some discussion of the lack of competency of the opera-
tors and of a union in general. During the discussion,
Bolding testified, Ozbey said that he had "an open door
policy and that any time we had a problem, we could
come to him and talk about it. If we did not think we
were being paid enough, we could come and talk to him
about it and see about getting more money. His door was
always open." The meeting closed with Ozbey stating
that "no matter what my feelings or views were about
the Union, that I was assured a job there at Gordonsville
Industries and I did not have anything to worry about."
In testifiying as to the October 21 conversation, Ozbey
said the "subject turned to union" and he said that he
wished to express his "personal opinion as a private citi-
zen, not as a plant engineer." He gave Bolding his gener-
al view of unions, here and abroad. Ozbey further testi-
fied that he told Bolding that he had an "open door"
policy, the same as he had told his employees, including
Bolding, in periodic meetings during his 3 years as a
manager: "Everybody is free to come and discuss with
me all their personal problems, business problems, any
problems."
The General Counsel adduced no evidence to rebut
Ozbey's testimony that he had periodically told his em-
ployees of his "open door" policy and their right to dis-
cuss "any problems" with him. That being so, I do not
view this restatement of that policy as an "implied prom-
ise to remedy grievances." It was, rather, a reiteration of
an old promise. I do not regard that as violative.
D. The Allegations Relating to Frank Baugher
The complaint alleges that Respondent violated the
Act by the conduct of Harry Fernandez, on October 22,
"in threatening employees with discharge because of
their activities on behalf of the Union," "in threatening
employees with more onerous working conditions be-
cause of their activities on behalf of the Union," and "in
creating the impression of surveillance of employees'
dom to go around in all the areas of the knitting department than the
other employees.'"
"it) (hey was uncertain whether he or Bolding broached the subject.
570
GORDONSVILLE INDUSTRIES. INC.
union activities;" and, in October and November, "in in-
terrogating employees concerning their activities on
behalf of and in support of the Union."
Employee Frank Baugher testified that he was active
in behalf of the Union, handing out leaflets along the
road to the plant, wearing union shirts and buttons, and
soliciting employees to attend meetings. He said that
during the first week of October, while conversing, for
the first time, "about the union" with Harry Fernandez
(concededly a statutory supervisor and, more specifical-
ly, Baugher's supervisor), Baugher told Fernandez that
he "had gone to the union meeting the night before and
he asked me who all was there." Baugher mentioned a
few names and Fernandez "asked what we talked about
and I said we talked about the union." Baugher could
not recall who first raised the subject of the Union in
this conversation.
Baugher further testified that on October 22, while
talking to Fernanadez in the dye office, Fernandez "told
me that all of the union leaders, the ones seen out on the
road handing out pamphlets, would be gotten rid of. He
said there was going to be a list of prounion and antiun-
ion and the undecided. And he said that the prounion
would be scratched off like this [making an 'X' gesture
with his finger]." Fernandez further said it "would be
very close to-what the Company decided who was for
the union and who was against. He said it would be very
close because he had gone through that before." Fernan-
dez also stated that Baugher "would be coming up with
a lot of mistakes, he said mistakes that nobody would be-
lieve. He said you'll be driving down the road and on
your way to work and say to yourself, damn it, I've got
to go through all this bullshit again." Fernandez went on
to say that "if they told me to get rid of you, I'd have to
do it because my job would be in danger if I didn't
.... He said that he would be willing to bet that within
three months or ninety days I would be gone." Fernan-
dez also asked Baugher "if [he] knew how many people
in that department were for the Union." When Baugher
replied in the negative, Fernandez said, "there's one,"
eventually identifying the sole union supporter as
Baugher himself.
Fernandez denied ever asking Baugher about union
meetings. He also denied any reference to getting rid of
union leaders, but he did recall snippets of conversation
which might have accounted for some of Baugher's testi-
mony. For example, he once described to Baugher an
election held at a previous employer of Fernandez, in
which the company had kept a list of prounion and an-
tiunion employees, "to give management an idea of how
this election would go." He also remembered another
talk in which he told Baugher of an earlier employment
in which he disliked the supervisor so intensely that he
dreaded the prospect of going to work; on cross-exami-
nation, however, Fernandez said this was "possibly" ut-
tered in the context of a discussion about the Union. He
asserted that "every day [Baugher] would have a ques-
tion for me" about the Union and other matters, and
they spoke "many times" on the subject of the Union.
Fernandez was an emphatic, almost theatrical witness
on direct examination, but his cogency lost force on
cross. I thought Baugher a very honest witness and I do
not believe that Baugher constructed the vivid October
22 conversation out of whole cloth or distorted it in any
significant way. Accordingly, I credit the testimony of
Baugher.
I do not find that the conversation during the first
week of October constituted unlawful interrogation.
Since Baugher could not recall who raised the subject of
the union meeting, it may well have been Baugher. If it
was Baugher, he was obviously ready and willing to dis-
cuss the subject with Fernandez. Since Baugher would
have plainly invited them, questions by Fernandez, in re-
sponse to Baugher's possible introduction of the subject,
were only natural and could hardly have been consid-
ered by Baugher a menacing employer interest in union
activities.
In the October 22 conversation, however, Fernandez
violated Section 8(a)(l) by threatening that the union
leaders "would be gotten rid of," that Baugher would
find himself "coming up with a lot of mistakes." and that
in 3 months, Baugher "would be gone." Contrary to the
complaint, I do not find in Fernandez' remarks any im-
pression of surveillance of Baugher's activities. Baugher
had made his position on the Union publicly known and
had previously discussed his union activity with Fernan-
dez; when Fernandez identified Baugher as the only de-
partmental union supporter, that association of Baugher
and the Union could hardly have been thought by
Baugher to have been derived from "surveillance."
The General Counsel amended the complaint at the
hearing to allege that Respondent had violated Section
8(a)( ) "by implying that personal property of employees
had been damaged by the Union." Baugher testified that
in a conversation "about the union" with Charles
Arruda, superintendent of dyeing, on the day before the
December 6 election, Arruda said that "he didn't think
that acid had been poured on anyone's car before the
Union tried to get in . . . and he said he had a good job,
good family, nice home and he didn't want his house
burned down and he didn't want to have to leave the
state of Virginia." When Baugher said that he did not
think the Union was responsible for the damage inflicted,
Arruda said "that was the way the union worked."
Arruda did not testify. I do not view the remarks
made by him to Baugher as unlawful intimidation. Testi-
mony subsequently given on Respondent's behalf estab-
lishes that vandalism had occurred. Arruda's stated belief
that the Union had caused or been responsible for it was
simply "the expressing of ... opinion . . . contain[ing]
no threat of reprisal or force," which Section 8(c) pro-
tects. Employer antiunion campaigns often include gratu-
itous references to union violence, and such comments
are normally held to be within the limits of fair com-
ment. I recommend dismissal of this allegation.
E. The Allegations of Unlawful Conduct Addressed to
Betty Figgins
The complaint alleges several instances of threats, and
one promise of benefit, directed by Foreman Woody
Carpenter toward employee Bettty Figgins.
Figgins, who distributed union literature inside and
outside the plant, testified that on October 26, her fore-
571
DE-CISIONS OF NATIONAL LABOR RELATIONS BOARD
man, Woody Carpenter, told her that two employees had
been discharged on the preceding day; when Figgins
sought their identity, Carpenter said she would find out.
As he started to walk away, Carpenter turned and "said
if this union is voted in, the plant would shut down."
Around November 3, Carpenter, after asking Figgins if
she had received a company letter about strikes, told her
that if the employees struck, they would receive sparse
strike benefits and Respondent would "just hire some-
body'else and give them our jobs." When Figgins denied
the Company's right to do so, Carpenter said "something
about economic or noneconomic strikers and whatever it
takes, that they could do that, just hire a person perma-
nently and give them our jobs and they don't have to
take us back." He further noted that the Union "wasn't
any good, that the only good union was the Steelwork-
ers or a railroad union or the kind that A & P and
Safeway have.""
On November 4, Carpenter "started talking to me
about people losing their jobs. And he said that whether
the union came in or not, it was a lot of people going to
be fired. And I said you can't fire anybody without a
reason and he said that wouldn't be hard to find."
On November 16, Carpenter came to Figgins' work
station and "told me that he was going to talk some
sense into my husband. And he said if both of us was
going to be for the Union, why didn't we just keep quiet
and go ahead and vote, that way it would be better for
Bill." When Figgins asked if her husband's job was in
jeopardy, Carpenter replied, "You'll find out."
Carpenter continued by saying that another employee's
wife had been "fired because she had talked to somebody
about trying to get a union in there." 12 When Figgins
said the employees had no benefits, Carpenter stated that
"they was working on some, that they were working on
a retirement plan." Figgins asked when the employees
would receive the benefit, noting that it would not likely
be given on the scheduled election date. Carpenter re-
plied, "[N]o, but we can give it to you the day before
that." Carpenter went on to say that "when the union
came in, the company wasn't going to give us anything
so what was we going to do, go on strike."
"[A] few weeks before" the December 6 election, Car-
penter told Figgins that if the Union won, the employees
would have to strike because "the company wouldn't
give us anything else." He went on to threaten that Re-
spondent "could just shut down and move away or an-
other country [sic] and leave us here with nothing and
nobody else would hire us because they would know we
had something to do with the Union."
At some time prior to the hearing, Betty Figgins was
promoted to lead person position.
I I At the hearing, the General Counsel took the position that this
matter related only to par. 6(d) of the complaint, which alleges violations
by telling employees that "even if the Union won the election, the Em-
ployer could refuse to offer anything during contract negotiations and
employees would be forced to strike."
12 The General Counsel's brief asserts that the words "al Doubleday"
should follow the word "fired " My notes do not indicate that this omis-
sion occurred and I therefore deny the motion to amend the transcript
The circumstances indicate, however, that Carpenter was not speaking of
a discharge by Respondent.
Woody Carpenter, a poor witness, generally could not
"remember" any such conversations with Figgins, be-
cause he could not recall "that far back," and there was
"conversation going on everywhere." He stated, howev-
er, that "[i]t's a possibility" he may have expressed an
opinion that the plant would close, in response to ques-
tions posed by employees, and that he "could have" dis-
cussed other matters alleged by Figgins. On the basis of
the convincing demeanor of Figgins and her detailed tes-
timony, weighed against the unimpressive testimony and
half-admissions made by Carpenter, I credit Figgins.
The remarks uttered by Carpenter on October 26 and
"a few weeks" before the election, to the effect that Re-
spondent would or could shut down, violated Section
8(a)(1). The reported conversation of November 3, as ex-
pressly limited by the General Counsel's representation
at the hearing of the pertinent allegation, does not sup-
port that allegation. Carpenter's November 4 threat that
"a lot of people [were] going to be fired" was violative,
as was the suggestion on November 16 that Figgins' hus-
band might lose his job. In that same conversation, Car-
penter further gave voice to unlawful remarks by stating
that "when the Union came in, the company wasn't
going to give us anything," and that Respondent was
"working on a retirement plan" for the employees. The
statements, a "few weeks" before the election, that the
employees "would go out on strike because the company
wouldn't give us anything else," and that the Company
"could just shut down and move away," were equally
violative. I do not construe the comment made in the
final reported conversation to be a separate act of threat-
ening to blacklist; "nobody else would hire us because
they would know we had something to do with the
Union" is a prediction based on probable local attitude,
not a threat to cause that attitude.
F. Conduct Relating to William Figgins
William Figgins was an active solicitor and handbiller
for the Union. The complaint makes allegations of un-
lawful conduct with respect to him.
On or about October 17, while Figgins and employee
Dickerson were working on a machine, Foreman Woody
Carpenter approached and told Figgins that he "ought to
get out of the union and not get involved any more than
what I already had." In the course of conversation, Car-
penter said "there was about fifteen people including
[Figgins] who would be fired," and further stated that,
because of "a little black book" management was keep-
ing about the employees, they would not "be able to find
a job anywhere in Orange County." Figgins replied that
he was not worried because he could move away; Car-
penter responded, "[Y]ou're going to have to go a long
ways because you won't get a job around here any-
where. He said none of them will." Carpenter went on
to speak of Figgins "los[ing] my house and everything."
Carpenter completely denied that any such conversa-
tion occurred. I have discredited Carpenter above, and
here, as well. I prefer the testimony of William Figgins,
a plainly reliable witness.
The threat of discharge leveled at Figgins and others
violated the Act. Further, and unlike the case of Betty
572
GORDONSVILLE INDUSTRIES, INC
Figgins, Carpenter's statement that Respondent was
maintaining "a little black book" on the employees,
which would prevent them from obtaining other jobs,
clearly constituted an unlawful threat of blacklisting.
The complaint alleges that prior to the election, Super-
visor Edgar Perkins engaged in unlawful harassment of
Figgins, "by his conspicuous observation of [Figgins']
work performance," in violation of Section 8(a)(l); and
that around November 15, Perkins told Figgins that Re-
spondent would offer the employees nothing during con-
tract negotiations and would force a strike.
Figgins testified that the tedious nature of his work as
a mechanic in the knitting department had necessitated,
during his prior 2 years of service as a mechanic, occa-
sional informal breaks in the routine, in which he would
have coffee, go to the restroom, or chat with other em-
ployees. These work interruptions were tolerated by Su-
pervisor Perkins "up to about three or four weeks before
the election," when Perkins began "to follow me and tell
me to get back to work. If I was talking to somebody, he
would get on me." On "several" occasions when Figgins
was in the bathroom, Perkins would look in the door
and, if Figgins was speaking to someone, would tell him
to return to the machine he was repairing. After the
election, however, Perkins' acceptance of such behavior
"gradually . . . went back to normal."
During this period, Perkins would hand out antiunion
literature to the mechanics, and would always insist that
Figgins read his copy then and there, although he would
not impose the same requirement on the other mechan-
ics. On one occasion, about November 16, when Figgins
responded to a piece of literature by asserting that the
Union would be beneficial to the employees, Perkins said
that if it was up to Executive Vice President Gehring,
"We wouldn't get anything anyhow."
On or about November 18, while Figgins was engaged
in conversation with two other employees about work
matters, Perkins called him over and told him to "quit
harassing people." When Figgins asked whom he had
been harassing, Perkins said, "I'll ell you that when I
follow you."
Figgins conceded that he had been "personal friends"
with Perkins for the past few years, that he and Perkins
spoke of the union movement many times, and that on
these occasions he expressed his own opinion.
Perkins testified that after September, "people seemed
to want to talk more than they did work," that part of
his job involved "watching" employee working habits,
and that he did not watch Figgins more than any other
employee. He said that he stopped employees from con-
gregating in the restroom before, during, and after the
preelection period. He testified that his procedure in
handing out company literature varied; sometimes he
'would wait while an employee read the paper to see if
there were any questions, sometimes he would leave and
then return.
Perkins denied attributing any mindset to Gehring. As
to the incident in which he allegedly told Figgins to stop
"harassing" people, Perkins said that he had received a
"statement," perhaps from Phillip Skipper, a foreman,
that Figgins had been "out of his work area and was har-
assing people, trying to persuade them one way or the
other out of his work area." Although unsure what the
goal of the "persuasion" was, "it could have been" about
the Union. He called Figgins aside, told him of the com-
plaint, and asked him to stay in his work area. Perkins
conceded that the antiunion handouts he made to his
setup mechanics, approaching a level of every other day
as the election drew near, consumed an average of 20-30
minutes, in total, of their worktime on each occasion.
Figgins was an impressive witness; Perkins was not.
Based on Figgins' testimony that his social intercourse
with other employees, previously accepted, did not in-
crease during the preelection period, and his testimony
that Perkins nonetheless began to chide him for conduct
tolerated prior thereto, one must infer that the harass-
ment was occasioned by Figgins' known support of the
Union. :' Perkins' professed concern for a drop in pro-
duction in the winter of 1977 (to an extent unknown to
him) is somewhat belied by the time deliberately con-
sumed in handing out antiunion literature to the mechan-
ics every other day prior to the election. Riding herd on
an employee in this manner because of his union sympa-
thies violates the Act.
I think the reference to Frank Gehring-that "if it was
up to Frank Gehring, we wouldn't get anything
anyhow"-presents a more difficult issue. The General
Counsel argues that this is a "flat-out renunciation of any
and all bargaining." A stark declaration of the futility of
bargaining would be, I agree, violative, but the statement
attributed to Perkins seems, as Respondent argues, am-
biguous. Gehring was thought of by Figgins as the
"plant manager;" 4 in that view, he was not likely to
make final decisions about contract offers. A normal
reading of the remark ("if it was up to Frank Gehring")
suggests not only that it might not be up to the "plant
manger," but also, as Respondent contends, that other re-
sponsible members of management might have contrary
views. The attendant uncertainties lead me to believe
that no violation should be found here.
G. Statements Made to Thomas Dillon
At the hearing, the complaint was amended to allege
that Respondent violated the Act on or about November
23, 1977, by "telling employees that conditions would
improve if they rejected the Union."
Employee Thomas Dillon testified that he was among
a group of employees addressed on the day before
Thanksgiving by President Michael Gottlieb, Executive
Vice President Gehring, and Personnel Director Jim
Lcudon. They announced that they were there "to feel
out any problems that we had," stated that they were
not there to make promises, and then asked for questions.
After the meeting ended, Dillon and two other employ-
ees continued to talk to Gehring, rehashing grievances
brought up at the meeting, and eventually Gehring's
"voice got kind of low and he said listen, give us another
chance, that's all we need. We can straighten these
I:' This occurred long after the period during which Figgins solicited
cards, which he concededly did on the production flor on a number of
occasions in September
'' As discussed. infra, confusion abounded during this period about the
authority vested in the various managers
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
things out on our own and you people can do this just as
well in six months as you can now."
Also as amended at the hearing, the complaint charges
that Respondent violated Section 8(a)(l) on or about No-
vember 29 "by disparaging the Union and by promising
employees better working conditions in order to dissuade
them from supporting the Union."
Dillon testified that on November 29, President Gott-
lieb came to Dillon to give him an answer to a question
raised by Dillon at the November 23 meeting. After dis-
cussing Dillon's complaint, Dillon said he "had been
catching a lot of flak and crap from these jobs and after
the Union got in, I didn't think I would have to any-
more." Gottlieb answered heatedly that "the only thing
the Union would do was f- us and take our money."
Gottlieb then "calmed down and apologized for the
remark and said that he shouldn't have made the remark
and that he was getting excited and off the subject." The
discussion resumed and subsequently the following oc-
curred:
He said that if the Union came in there would be
trouble and then he said do you want a promise. He
said I can't make you a promise and he said but
hell, I'm going to do it anyway. He said we can get
things straight ourselves, just give us the opportuni-
ty. We don't need anything else to do it.
Gehring did not testify about the November 23 meet-
ing with Dillon. He did say, with respect to a series of
meetings held with plant employees in November, that
management officials did not make any promises at the
meetings themselves (Dillon agreed) because they had
been advised that "we couldn't promise or threaten."
While Gehring, who testified on behalf of the General
Counsel, also said he did not meet "individually" with
employees until December 5, as hereafter discussed, the
Dillon encounter was the aftermath of a group meeting,
and two other employees were present.
Gottlieb admitted that, on November 29, he "blew up"
at Dillon's rosy vision of the Union's promise. He attrib-
uted this to irritation stemming from threatening phone
calls recently received by him and his wife (which, I
find, likely occurred). He said that he told Dillon that,
procedurally, the presence of a union would cause "trou-
ble" because of the necessity of going through a shop
committee to get things accomplished, and that he used
the word "promise" innocuously, only in the sense of
"predict" ("I can promise you that relative to getting
these changes done that you'd like to get done, you're
going to have as much trouble with a union here as
without a union here.") t 5
Dillon was an excellent witness. His testimony that
Gehring asked for 6 months in order to "straighten these
things out on our own" appears to be a promise of bene-
fits for repudiating the Union, prohibited by Section
8(a)(l). While Respondent argues that the usage "can
straighten" rather than "will straighten" implies that no
"promise" was made, the request that Dillon "give us an-
I ' Respondent moves to insert in Gottlieb's testimony the statement
that Dillon "as trying to bail me." Neither my notes nor my recollec-
lion support such an amendment of the transcript.
other chance" plainly implies that Respondent was
vowing to right the grievances which had brought the
Union movement to the fore.
Fayette Cotton Mill, 245 NLRB No. 64 (1979), raises a
serious question as to whether disparagement of a union
can be a separate violation. In any event, Gottlieb's im-
mediate and effusive apology for his angry remark on
November 29 removed any sting the outburst may have
carried. I would not find an independent violation on
these facts, particularly since the breach would be bor-
derline at best, carrying little or no connotation that the
auditor was in jeopardy.
I was impressed by Dillon, and I think it unlikely that
Dillon concocted the claim that Gottlieb told him, on
November 29, " can't make you a promise . . . but hell,
I'm going to do it anyway .... [W]e can get things
straight ourselves, just give us the opportunity." This ex-
press promise to improve working conditions in ex-
change for a vote against the Union is, of course, viola-
tive.
H. The Alleged Conferral of a Profit-Sharing Plan
The complaint, as amended, charges that Respondent
violated the Act by "conferring" a profit-sharing plan
upon the employees on December 5.
On the day before the election, several of Respond-
ent's highest-ranking representatives, including President
Gottlicb and Executive Vice President Gehring, met in-
dividually with employees and handed them statements
informing them of amounts which had assertedly accrued
to their accounts in a profit-sharing plan. It is clear from
the record that the employees had never previously been
notified of the existence of the plan, much less its de-
tails. t 6
Because there will be frequent reference to him hereaf-
ter, I shall discuss at this juncture the role of Tom For-
shee at the plant after September 26, as well as the rela-
tive authority of the various plant officials.
Tom Forshee was one of the employees of SESCO
who, as earlier stated, was detailed by that firm to help
conduct the employee survey made at Gordonsville on
September 26-27. He continued thereafter to maintain a
connection with Respondent, to assist in guiding Re-
spondent through the shoals of the union campaign, and,
although Forshee was only at the plant periodically, he
assumed considerable authority over personnel matters.
While the evidence is confusing, it appears that in
around mid-October, Gary Miller, who had been acting
as plant manager for a while, lost personnel responsibil-
ities and was more-or-less confined to overseeing the
production aspect. The record shows, however, that,
even into November, many employees and some supervi-
sors continued to regard Miller as the plant manager, and
he occasionally so acted. Executive Vice President Gehr-
ing assumed the role of acting plant manager, but he
maintained little or no authority over personnel and em-
l6 Foreman Woody Carpenter testified that when employees would
question him about the existence of a "retirement" plan, he "could have
said" that "everyone in the plant had the same retirement plan, we was
told. Nobody knew anything about it I didn't know anything about it. It
hadn't been finalized yetr"
574
GORDONSVII LE INDUSTRIES, INC
ployee relations matters, which were controlled by For-
shee, who "reported directly" to Gottlieb. Gottlieb testi-
fied that, beginning in October, he took a more active in-
terest in the plant and spent an average of 3 days a week
in Virginia.
Forshee and Gottlieb testified that the election-eve no-
tification to employees was provoked by union propa-
ganda that no retirement plan existed, a piece of misin-
formation which they thought required rebuttal. The al-
legedly provocative union leaflet, distributed on Decem-
ber 2 or 3, depicted a graveyard, with accompanying
text describing a pension plan then in effect at Liberty
Fabrics "according to the pension formula on file with
the Department of Labor by our company." The mes-
sage of the leaflet was that an employee who had started
work in 1960 and was employed for 3() years would re-
ceive a very small pension, as compared to the more
generous entitlement of the president and executive vice
president of Liberty, and that an employee who com-
menced work after 1972 would receive no pension at all.
The plan to which the Union was referring was appar-
ently a fixed contribution pension plan which had been
in effect for several years and which, as discussed below,
was "frozen" in 1976 because Respondent felt that con-
tinuing with a fixed contribution plan could cause it to
"go broke." 7 Accordingly, in November 1976, Re-
spondent adopted a retirement plan based on profit-shar-
ing. The Union apparently had not known of this devel-
opment in preparing the "graveyard" leaflet.
In order to respond to the graveyard leaflet, Gottlieb
et alia, personally distributed to all the employees form
statements, appropriately filled in, reading as follows:
Dear
On December 31, 1976, the company made a contri-
bution to your individual retirement account in the
amount of--- . Contributions by the company to
your account in future years will be based on the
profitability of the company. The next contribution
to your account will be made at the end of this
year. 8
In construing Section 8(a)(l), the Supreme Court has
stated, in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405,
409 (1964):
We have no doubt that [Section 8(a)(1)] prohibits
not only intrusive threats and promises but also con-
duct immediately favorable to employees which is
undertaken with the express purpose of impinging
upon their freedom of choice for or against union-
ization and is reasonably calculated to have that
effect .... The danger inherent in well-timed in-
" It appears to me that the General Counsel's generally excellent brief
errs here in asserting that "only managerial employees" had participated
in the pension plan. I read Gehring's testimony, on which the General
Counsel relies. assiating just the opposite. Gehring said that prior to the
enactment of ERISA in 1974, he plan had applied only to managers, but
it was thereafter amended Io cover rank-and-file employees The union
leaflet plainly indicates that at least some employees were covered b the
plan, according to the documents evidently obtained by the Union from
the Department of Labor.
i8 Betty Figgins testified that the amount entered on the form given
her was 142.57.
creases in benefits is the suggestion of a fist inside
the velvet glove. Employees are not likely to miss
the inference that the source of the benefits now
conferred is also the source from which future
benefits must flow and which may dry up if it is not
obliged.
It hardly needs saying that the announcement of a new
benefit as substantial as a profit-sharing plan on the liter-
al eve of an election s invites close and serious scrutiny
as to whether the announcement was made "with the ex-
press purpose of impinging upon [employee] freedom of
choice." The Board has consistently held that the grant-
ing of increases prior to an election raises a "presumption
of impropriety which can be rebutted only by an affirma-
tive showing that the benefit was governed by factors
other than the impending election." Idaho Candy Conpa-
lly, 218 NLRB 352, 355 (1975): Schwab Foods. Inc.. d/b/a
Scott.s IG. Foodliner, 223 NLRB 394. 406 (1976); see
V\ L.R.B. v. Stvletek. Division of Pandel-Bradford, Inc.,
520 F.2d 275, 280 (st Cir. 1975). The cases hold, in
short, that the showing of "express purpose" required by
the Supreme Court is so inherent in the grant of preelec-
tion benefits that it is fair to infer an improper motivation
behind such a grant absent a satisfactory explanation for
its sudden bestowal.
One avenue of employer exoneration in the past has
been a demonstration that the suspect benefit had been
conceived and implemented prior to the union's arrival,
and that the preelection announcement simply made
knowln to employees a predetermined and existing bene-
fit, legitimately processed and unveiled in accordance
with the dictates of business constraints, not union con-
siderations. Field Container Corporation, 178 NLRB 536
(1969); Domino of California, Inc., 205 NLRB 1083
(1973); ,Mr. Fine, Inc., 212 NLRB 399, 402 (1974). To
qualify for this exception, however, employers must es-
tablish that the benefits were "pre-determined" in the
sense that "they were already existing or that the em-
ployers had made a binding commitment to put the bene-
fits into effect regardless of the outcome of the election."
N'.L.R.B. v. Arrow Elastic Corporation, 573 F.2d 702, 705
(Ist Cir. 1978).
Thus, in Arrow, the employer was found to have vio-
lated the Act by announcing to employees that a pension
plan was to be added to the existing profit-sharing pro-
gram. The fact that Respondent had undertaken develop-
ment of such a program long prior to the union effort
and had even informally announced to employees, before
the campaign, that there "would be" a pension plan, was
held to be no defense, since the plan had not been for-
mally approved by the Arrow board of directors until
after the election: "until the plan was signed, Arrow was
free to abandon its program at any time or to alter the
provisions of it." Ibid. It may be argued, on this reason-
ing, that the gravamen of the offense was less the an-
nouncement or grant of a benefit than a misrepresenta-
tion that such a benefit had been granted. The effect on
" The announcement actually extended into election da), since Re-
,pondenlt began;l passing out the statements on the morning of December 5
and did nilt complete the task until 2 30 a m on December
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election of such a misrepresentation would, of
course, be as substantial as the announcement of a true
and fixed benefit.
That the genesis of the announced benefit may be
faultless, however, does not necessarily end the inquiry.
"Predetermination alone is not determinative, the timing
of the announcement must also be considered." Arrow
Elastic Corporation, supra, 573 F.2d at 706; "Wage in-
creases and associated benefits may well be warranted
for business reasons; still the Board is under no duty to
permit them to be husbanded until right before an elec-
tion and sprung on the employees in a manner calculated
to influence the employees' choice." N.L.R.B. v. Styletek,
supra, 520 F.2d at 280.
Respondent argues (1) that the profit-sharing plan was
predetermined, fixed, and free of union-related taint; and
(2) that the announcement of the plan was a legitimate
response to the graveyard leaflet. In my view, the an-
nouncement was improper under the cited authorities,
for the reasons given below.
Discussion is complicated by both a serious paucity of
evidence clarifying the origin, development, and imple-
mentation of the plan, and by Respondent's troubling tes-
timony concerning these matters. There are only three
documents in evidence bearing upon the plan at all: two
are copies of Respondent's annual reports for 1976 and
1977; the third, introduced by the General Counsel, is a
letter sent by Gottlieb to all employees after the election
which contains a few assertions about the status of the
profit-sharing plan at that time.
The 1976 annual report briefly states that Respondent
has a "non-contributory pension plan for its eligible em-
ployees who meet the minimum service and age require-
ments" and that, in 1976, Respondent amended the pen-
sion plan and "adopted a non-contributory profit sharing
plan for the same employees." The report further states,
"The Company may amend, modify or terminate either
or both of the plans, in whole or in part, at any time."
President Gottlieb testified that in 1976 Respondent
"approved and passed the profit-sharing plan and agreed
that the pension plan could not go on into the future be-
cause it had been mutilated during the bad years of '71
and "72." Oddly, the 1976 report, dated February 1977,
makes no reference to this termination of the pension
plan. The report for 1977, dated March 1978, does. It
states, in part:
The Company's Non-Contributory Profit-Sharing
Plan covers all employees meeting the eligibility re-
quirements. The Company may amend, modify or
terminate the Plan, in whole or in part, at any time.
Contributions to the Plan are discretionary and
based on current and accumulated profits but may
not be less than 5% of pre-tax book income, as de-
fined in the Plan. The policy of the Company is to
fund contributions so determined. Because of the es-
tablishment of the Profit-Sharing Plan, the Compa-
ny's Non-Contributory Pension Plan, which cov-
ered the same employees, has been frozen, effective
December 1, 1976, by discontinuing the accrual of
future benefits to participants after such date.
The remaining relevant document in this record is a
letter, signed by Gottlieb, mailed to all employees some-
time after February 1978. It informed them that Re-
spondent's board of directors had approved "on Novem-
ber 19, 1976 the introduction of a profit sharing plan
starting with the year 1976;" that "[t]he plan was submit-
ted to the Internal Revenue Service on December 30,
1977;" that "[o]n February 27, 1978, the Internal Reve-
nue Service acknowledged receipt of our plan;" that
"[w]e are now waiting for a qualified letter of determina-
tion from the Internal Revenue Service;" and that when
the letter of determination was received, a formal sum-
mary of the plan's provisions would be forwarded to the
employees. In the interim, and in anticipation of receipt
of the letter of determination, Respondent enclosed with
each letter "individual profit-sharing plan certificates"
showing the amount of contributions made to the ac-
count of each employee in 1976 and 1977, and indicating
the "cumulative account balance . . . at December 31,
1977, and how much of that amount is vested, i.e. your
money."
The record is singularly devoid of the sort of basic
documentation one might have expected regarding the
creation and development of this plan. Despite a refer-
ence at the hearing to my assumption that such evidence
would be presented (and a rejoinder by counsel for Re-
spondent that it "certainly could" be), there are no min-
utes showing the action taken by the board of directors
on November 19, 1976, respecting "the introduction of a
profit sharing plan," no evidence of the "contribution to
your individual retirement account" made on December
31, 1976, no copy of a plan or trust agreement, none of
the materials which surely would have been generated
by adoption of such a program. The claim in the Decem-
ber 5 letters, and Gottlieb's testimony, that moneys had
been actually "contributed" on December 31, 1976, is
hard to accept in view of Gottlieb's confusing testimony
about Respondent's calculations of amounts due employ-
ees under the plan "formula." Thus, on a single page of
the transcript, he said that "the information regarding
the amount of money in each employee's account
became available" only "[v]ery close to the election,"
but then immediately said that "the calculation [was]
completed" in "June, no, May." Neither date, however,
would have permitted the asserted "contribution to your
individual retirement account in the amount of $-
on December 31, 1976.
Under the teaching of Arrow and other cases, an em-
ployer may not assert that his employees enjoy a benefit
unless the benefit is in esse. I am inclined to think that as
of December 5, 1977, there was some sort of profit-shar-
ing plan in some stage of development, based on the
statement in the 1976 annual report that "[d]uring 1976,
the Company . . . adopted a non-contributory profit
sharing plan," Respondent has not demonstrated, howev-
er, that the "adoption" constituted a legal commitment in
any sense; in the words of the Arrow court, "until the
plan was signed, Arrow was free to abandon its program
at any time or alter the provisions of it." It is a fair infer-
ence, in fact, that the plan was still in evolution on De-
cember 5, 1977, considering that, as Gottlieb's post-
576
GORDONSVILLE INDUSTRIES. INC.
election letter to the employees states, the plan was not
even submitted to the Internal Revenue Service until De-
cember 30, 1977. The record is silent as to the lengthy
delay between "adoption" of the plan on November 19,
1976, and its submission to IRS more than a year later.
Moreover, as the General Counsel points out, the
Board has held by implication that announcement of a
benefit plan which requires IRS approval constitutes be-
stowal of a nonexisting benefit when that approval has
not, in fact, been received. Thus, in Domino of California.
Inc., supra, 205 NLRB 1083, the Board noted, in finding
lawful the announcement of a profit-sharing plan made
after the employer had received notification of IRS ap-
proval, "It was clear at that time that employee rights
under the plan had vested and were no longer defeasible
upon the contingency that the plan did not qualify for
tax-exempt status." Accord: Field Container Corporation.
supra: Mr. Fine, Inc., supra. Announcement to employees
of a benefit whose vitality depends upon subsequent gov-
ernment action, without any intimation of that necessary
prerequisite, plainly misrepresents the character of the
"benefit." 2 0
Gottlieb testified that "[o]ur taste would have been to
have given them the whole plan and explained every-
thing at one time." However, because counsel advised in
September or October that announcing the plan "would
have been a benefit and an unfair labor practice," it was
decided that there would be no announcement. But when
the Union circulated the graveyard leaflet "which pic-
tured me as some kind of ogre trampling on the people,"
counsel approved telling the employees of the amount of
money in their accounts--"just give them that one fact."
The argument that Respondent was simply responding
to the graveyard leaflet does not entirely ring true. The
issue of a retirement program had surfaced several times
earlier in the campaign. It may be, particularly in view
of the magnitude of the undertaking involved in inform-
20 The December 5 statements handed to the employees were mislead-
ing in other ways, so far as the record shows. As previously noted, Gott-
lieb's testimony makes it appear highly improbable that, as the form
stated, [o]n December 31, 1976, the company made a contribution to
your individual retirement account in the amount of $-----." The final
sentence of the statement, "The next contribution to your account will be
made at the end of this year," connotes a finality to both the plan and the
process which the status of the plan and the 1977 annual report refute
Thus, the plan had not yet received approval from IRS: absent such ap-
proval, the employees would never enjoy the benefits of the plan, no
matter how many contributions were made to their accounts. The em-
ployees were not told that, as the annual report states, "The Company
may amend, modify or terminate the Plan. in whole or in part, at any
time."
The annual report states, "Contributions to the Plan are discretionary
and based on current and accumulated profits but may not be less than
5% of pre-tax book income. as defined in the Plan." The reference to
"discretionary" is puzzling, but the second clause suggests that the entire
sentence means, as Gottlieb testified, that contribution of "5% of pre-tax
book income, as defined in the Plan" is mandatory and any amount above
5% is discretionary. However, the sentence immediately following raises
a doubt: "The policy of the Company is to fund contributions so deter-
mined." One is moved to ask why, if contributions "may not be less than
5% of pre-tax book income,'" the Company fell free to declare a mere
"policy" of funding contributions to the plan. As the Court noted in
Arrow. supra, "The particulars of a pension plan . . must be understood
and studied to determine its value . The May 2 speech by Kingsbury
did not give any more detailed information about it It was an unspecified
promise of benefits to which the company had not yet made a formal.
legal commitment '" 573 F2d at 706
ing some 350 employees about the plan, that the decision
to so inform them was made and being implemented
prior to the graveyard leaflet, and that the latter was a
mere fortuity. 2 On the whole, however, I am inclined
to believe that there probably would have been no refer-
ence to the profit-sharing plan absent the graveyard leaf-
let, particularly because Gehring's testimony so indicates.
Nonetheless, by responding to the leaflet as it did, it is
clear that Respondent engaged in "conduct immediately
favorable to employees which is undertaken with the ex-
press purpose of impinging upon their freedom of choice
for or against unionization and is reasonably calculated
to have that effect." ,.L.R.B. v. Exchange Parts Co.,
supra, 375 U.S. at 409. Graveyard leaflet or no, Respond-
ent chose to notify employees, at the 11th hour before
the election, to their undoubted surprise, that they were
the beneficiaries of an employer largesse previously un-
known to them.
It must be supposed that to an ordinary employee the
apparition of the company president handing him a state-
ment, on the night before the election, containing the
news that "the company" had deposited funds in an ac-
count for him the previous year and would do so again
in the future, must have seemed nothing less than Olym-
pian. This dramatic demonstration of "the company's"
ultimate control over benefits was "reasonably calculat-
ed" to vividly remind employees of that control. Re-
spondent had, as Gottlieb testified, deliberately chosen in
past months to refrain from mentioning this unsettled
benefit, and for good reason-the plan not having been
approved by IRS, an announcement that an uncondition-
al benefit had accrued would indeed have been an unfair
labor practice. To make that announcement on Decem-
ber 5, when the benefits were no more concrete than in
October, was not the less unlawful simply because the
Union had made a telling point in its propaganda.
This case is somewhat unusual in that here, unlike the
run of other cases, it is conceded that the announcement
of the plan was intended to influence the voters. "It is
obvious that the closer a wage benefit comes to the day
of the election, the harder it will be for the union to
answer, and the greater the danger that the benefit will
be manipulated to sway the election." N.L.R.B. v. Style-
tek, supra, 520 F.2d at 281. Those "dangers" were obvi-
ous in this situation; Respondent brushed them aside and
forged ahead, trumpeting as a fixed benefit a profit-shar-
ing plan which was infected with uncertainty. The effect
of that conduct on the election could hardly have been
misconstrued by Respondent. 22
2i The testimony indicates that the graveyard leaflet was circulated
around December 2 or 3; the statements handed out on December 5 are
dated "December 3."
22 Application of the test described by the Administrative Law Judge
in Arrow Elastic Corporation, 230 NLRB 110. 113 (1977), would leave no
doubt that the timing was impermissible: "It remains the further burden
of the employer to show that its announcement was reasonably timed as a
sequential step in. and a byproduct of, a chronology of conception, re-
finement, preparation and adoption so as to lead one reasonably to con-
clude that the announcement would have been forthcoming at the time
made even if there were no union campaign " This test may not he in-
variable. Compare Domino of Californiao. Inc.. supra, 205 NLRB at 1083.
fn 3, where the Board validated the announcement of a benefit despite
Coninued
577
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. The Wage Increase of January 1, 1978
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) by granting its hourly employees a 35-cent-
per-hour wage increase effective January 1, 1978. The in-
crease was announced to the employees on December
20, 1977, 2 weeks after the election. The asserted pur-
pose was, in the words of the complaint, "to encourage
[the employees] not to support the Union."
The tally of ballots in the December 6 election left the
question of representation unresolved. The count of
votes showed a horserace: 144 for the Union and 143
against, with 58 challenged ballots. In addition, both Re-
spondent and the Union, by December 13, had filed ob-
jections to the election.
The Board, with court approval, has held that a pre-
sumption of unlawful interference attaches even to the
grant of postelection benefits when the possibility exists
that a rerun election may be held. Gruber's Super Market,
Inc., 201 NLRB 612 (1973), enfd. 501 F.2d 697, 702-703
(7th Cir. 1974); Ralph Printing & Lithographing Co., 158
NLRB 1353, 1354, fn. 3 (1966); Triangle Plastics, Inc., 166
NLRB 768, 774-775 (1967). It is therefore the Board's
position that, in the present circumstances, an employer
must shoulder the burden of demonstrating that the deci-
sion to grant a wage increase so soon after a hotly con-
tested and unresolved election was a legitimate business
decision, uninfluenced by the pendency of the represen-
tation question. This standard, often difficult to apply, is
aided by the Board's doctrine that the employer may es-
tablish the legitimacy of his motivation by showing that
he would have granted the benefit even if the union had
not been on the scene; if he fails in that effort, the infer-
ence must be that the decision was affected by the pres-
ence of the union and by a desire to influence the vote in
the potential second election. The Great Atlantic & Pacif-
ic Tea Co., 166 NLRB 27, 29, fn. 1 (1967).
Contradictory testimony explaining Respondent's deci-
sion to grant the increase was given by Forshee and
Gottlieb. Prior to discussing that testimony, some back-
ground is necessary.
The record evidence on Respondent's past pay prac-
tices is not extensive. In a stipulation relating to those
practices during the period from January 1, 1975, until
November 1978, the parties agree that the only "general
across the board wage increases" made between January
1975 and December 1977 were in July 1975 and July
1976, each consisting of 25 cents per hour. The testimo-
ny of Forshee also shows that Respondent had a prac-
tice, both before July 1977 and thereafter, of reviewing
the performance of employees every 90 days and award-
ing acceptable employees "automatic" increases of 25
cents per hour, within, however, the existing pay scales.
This latter procedure was not as bountiful as it sounds.
Respondent maintained a wage structure of nine labor
the fact that its timing was not "completely unrelated to the presence of
the Union." There could be circumstances in which an employer might
have a new benefit firmly in place prior to an election and might an-
nounce it earlier than he otherwise would have done for the purpose of
apprising the employees of his generosity; it would seem that he would
be privileged to do so, although an unexplained delay until just prior to
the election might well call the announcement into question as the kind
of "husbanding" designed to impinge upon employee choice
grades, into which more than 100 job classifications were
slotted. The General Counsel's Exhibit 283 shows that
the climb from the bottom to the top of each grade was
not a long ascent. Thus, the differential between the
minimum and maximum pay for a grade 3 worker was 33
cents; for a grade 7 employee, 31 cents. Accordingly,
when a new grade 3 worker received a 25-cent raise
after his first 90-day review (which the evidence showed
to be "automatic" in amount), he would be entitled, at
best, to 8 cents as a result of the next review, and none
thereafter; the only way he could improve his individual
lot from that point on, absent a general wage increase
would be to receive a promotion to a classification in
labor grade 4.
The resultant bunching, at the top of the grades, of
new and old employees, and other considerations, led
Respondent in July 1977 to abandon its (at least) 2-year-
old practice of granting a 25-cent July general wage in-
crease and to institute a new system devised by then-
Plant Manager Miller. The system consisted of immedi-
ate provision of a longevity pay factor of 1 cent per hour
per year worked, for employees with 5 or more years of
tenure; an increase of 4 percent of the top of the scale in
each labor grade; and a procedure for reviewing each
employee at 90 days and 180 days after his entry into a
labor grade, and every 6 months thereafter. Unlike past
practice, however, according to a memorandum written
by Miller, "the automatic 25 / hour increases" would
no longer apply in these periodic reviews, and employees
would receive anywhere from "0 to 25t" as a result of
such reviews, depending on their performance.
Forshee testified that the longevity pay increment was
put into effect in July and continued thereafter. He fur-
ther said that the 4-percent top-of-scale adjustment was
"an additional increase" which "did not in any way in-
terrupt the ninety day program that was already in
effect." The 4-percent increase was implemented within
2 months: "Some time in September, all increases and
performance evaluations had been completed and the pa-
perwork processed and the appropriate increase from
zero to four percent had been processed for all employ-
ees some time in September." In a "particular area of the
plant, everyone got four percent. In another area, some
got none, others got put on probation and so on." For-
shee said that the Miller plan continued to apply after
July except that the discretionary 0-25-cent within-grade
raise coupled with a 6-month review was never institut-
ed: "[T]here was never a change from what had existed
in the past .... [F]or the most part, the automatic 25¢
an hour increase continued because there was no com-
puter change made." 2 3
I do not find persuasive management's effort to justify
the 35-cent December increase; the explanation of the
decisionmaking process raises serious problems at every
turn.
The discussions about an increase were assertedly pro-
voked by management awareness of an imminent in-
crease in the Federal minimum wage to $2.65 on January
2:I Although Forshee ultimately so testified, earlier testimony of his
seems contradictory
578
GORDONSVIII.E INDUSTRIES. INC.
1, 1978. 2 4 Forshee testified that Respondent had "tradi-
tionally maintained" an entry level "in excess of the
minimum wage," the differential prior to the January
1978 change being $2.50 as against the $2.30 minimum,
and it seemed appropriate to continue that relationship
by raising the entry level by the 35-cent increase in the
minimum wage. He noted that Gottlieb "emphatically
communicated" to him that he did not wish to acquire
the image of an employer who only paid minimum
wages.
Gottlieb's testimony added a new element in this re-
spect. He said that it was necessary to maintain at least
the 20-cent margin over the minimum wage because Re-
spondent was having difficulty "get[ting] good people at
20c above it .... We surely got good people but we
didn't get enough." Forshee had not testified that there
had been any problems about attracting new employees
at the $2.50 rate, and Miller's June 13 memorandum set-
ting out his proposed wage system was diametrically
contradictory to Gottlieb on this point:
I can find no supporting facts that indicate our
hiring rate is excessively low. There is the possibil-
ity that we may attract more people, more easily
with a higher starting rate, but in general we do not
have long standing openings at entry level. We
have usually had a ready supply of available entry
level applicants and more recent efforts at a
changed image and techniques in the personnel area
has [sic] further improved the availability of entry
level applicants.
Thus, insofar as Gottlieb testified, unlike Forshee, and
contrary to Miller's memorandum (the continued validity
of which between June and December is not impeached
by anything more probative than Gottlieb's testimony),
that there had been problems in attracting worthwhile
employees at even the 20-cent differential, the testimony
raises a suspicion about the legitimacy of this component
of the decision, particularly in the absence of any effort
by Respondent, prior to the advent of the Union, to meet
this perceived problem by increasing the entry level rate
at an earlier time.
Just how "traditional" it was for Respondent to main-
tain an entry level as high as 20 cents above the mini-
mum wage is debatable. Respondent made no proffer of
evidence to establish its history in that regard. I have at-
tempted to deduce the pattern, if any, from the stipula-
tion, but depending upon its proper construction, the
stipulation may be in error or incomplete. 2 5 It would, at
24 The parties have stipulated that the minimum wage increased as fol-
lows: on January 1, 1975, from $2.00 o 2 10; on January 1. 1976, o
S2 30 on January I, 1978, to 2.65, on January , 1979, to 2 90
25 We know that as of December 31, 1977, the entry level was 2.50
and the minimum wage 2.30. We have not been told how the entry level
was modified to meet prior increases in the minimum wage The stipula-
tion states that aside from the 25-cent increases in July 1975 and July
1976, and two increases in 1978. there were "no other general across the
board increases given to hourly paid employees . . during the period
January 1, 1975 to date." If the quoted material applied literally to the
entry level, it would mean, working backward from the 2.50 wage being
paid in December 1977, that it as not until July 1975 that the entry
level was raised from 2.00 to 2.25 but at that time, a 1S210 minimum
wage had already been in effect for 6 months I therefore assume that
the least, have been useful for Respondent to have dem-
onstrated the "history" of which Forshee spoke.
The General Counsel argues that Respondent did not
need to increase the entry level to $2.85 because, as Mill-
er's memorandum indicated, it had a ready supply of ap-
plicants at $2.50. The General Counsel recognizes, of
course, that a raise to $2.65 was mandatory, but suggests
that more was unnecessary, especially since the 90-day
review, with the automatic 25-cent increase, would very
shortly have achieved for new employees a rate of $2.90.
There is something to be said for this argument, but I
think it ignores the fact that Respondent had chosen a
different tack prior to the union campaign, having set an
entry rate of 20 cents over the minimum wage. Respond-
ent having made that judgment in a neutral period, I
would hesitate to quarrel with a similar judgment made
after the organizing began. My problem with this subpart
of the issue is, as indicated, that Gottlieb testified that the
entry level increase was necessitated by a hiring problem
to which Forshee did not advert 26 and which Miller's
memorandum refuted.
Forshee and Gottlieb testified that, once having con-
cluded that the entry level should be raised from $2.50 to
$2.85, it was further thought necessary to increase all
employees by 35 cents in order to avoid a serious "com-
pression" effect on the higher grades which would result
from narrowing the differences between the pay
ranges. 2 The magnitude of the decision to pay everyone
an extra 35 cents was considerable. Paying 350 employ-
ees 35 cents more per hour amounts, on the basis of a 40-
hour week and a 50-week year, to $245,000 per year.
I find this "compression-avoidance" contention consid-
erably improbable. The so-called "compression" basically
existed even before January 1978, when a trainee, hired
at $2.50, became a $2.75 wage-earner by virtue of his
"automatic" 25-cent raise after only 3 months. The
record does not show the average amount of hiring at
Respondent's plant, but it would seem that allowing a
relatively small tail to wag a quarter-million-dollar dog
was extravagant stuff indeed.
Furthermore, although this problem had necessarily
arisen in the past, with other minimum wage increases,
there is no evidence that any "compression" concern in-
duced a similar reaction at those times. As indicated
above, the record makes it appear most likely that the
entry level was separately adjusted on past occasions of
minimum wage increase. When that federal standard was
increased, for example, from $2.10 to $2.30 on January 1,
1976, a concern about the compression effect would have
resulted in a general wage increase of at least 20 cents,
or some other figure. But the stipulation recites only a
25- cent increase in July 1975 and another in July of the
next year; no across-the-board raise occurred in January
1976. This fact leads to a conclusion that, in the past,
telescoping of the wage scale as a result of minimum
some other provision was made in the past for raising the entry level to
conform to federal requirements.
`6 Indeed, Forshee said that Goltlieb's "concern" with respect to the
entry level wage was wilh his image in the community and elsewhere
21 It may be deduced from G.C. Exh. 283 that. as of December 1977.
the entry employee earned $2.50 and the highest paid hourly employee in
the plant earned S4.89
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases was never considered a problem of such
proportions as to justify a general raise.28
Forshee advanced still another reason for the decision
to make the 35-cent increase. Forshee testified that he
examined Respondent's wage records together with cost-
of-living data and found that Respondent's wages had
lagged behind prices. After studying the figures, he cal-
culated that "with the 35 per hour, it would almost be
exactly even with the cost of living for that period." The
June 13, 1977, Miller memorandum took a different view
of Respondent's past wage experience, noting that while
the average rate of inflation for the preceding 8 years
had been 6.4 percent, "[flor the past few years, we have
maintained an annual [wage] increase that approximated
7%." Foreshee testified, however, that his study led him
to believe that the 4-percent discretionary raise imple-
mented in September "was not an accurate reflection of
the rate at which the cost of living had been increasing,"
and that the 35-cent figure was required to keep pace
with inflation.
Forshee did not furnish at hearing the figures on
which he based his calculations. Given the impact of the
Miller plan instituted in July, however, it would seem
that the 35-cent January increase was extraordinarily
generous by Respondent's prior standards.
The two prior increases, in July 1975 and July 1976,
had been 25 cents per hour. With the implementation of
the Miller plan in July 1977, there were two quick
payoffs. First, because of the longevity increment, all
employees with 5 years or more of seniority began to
earn at least 5 cents more an hour; depending on tenure,
employees were increased, e.g., 5 or 10 or 14 or 16 cents
per hour, in accordance with their total years of employ-
ment. 2 9
Second, the discretionary 4-percent increase completed
by September also yielded a considerable raise for many
employees.30 Although there is no clear documentary
evidence on the subject, Forshee made it plain enough
that, by September, many employees had received a full
4-percent raise, and others somewhere between 0 and 4
percent.
Thus, as of September, a hypothetical grade 5 employ-
ee 3 ' with 10 years employment would have received a
10-cent-per-hour longevity increase plus, if he was given
the full benefit of the 4-percent raise, another 15-cent
raise,32 for a total of 25 cents per hour. Some employees
28 The General counsel points out that granting a flat increase to em-
ployees earning varying amounts has a compression effect of its own,
since lower rated employees thereby are awarded higher percentage in-
creases. Miller's memorandum explaining the new pay system instituted
in July 1977 pointed out that it was designed to "reduce the problems
associated with flat rate additions across the top of scales; we should use
a percentage at top of scale for the increases."
29 Gottlieb testified that the facility had opened in 1960 or 1961. Re-
cords in evidence show a considerable number of rank-and-file employees
whose employment began in the 1960's.
30 While only the top of the grades were raised by 4 percent, it is rea-
sonable to infer, from Miller's memorandum, from the narrowness of the
range in each pay grade and from the preexisting 90-day review proce-
dure with its "automatic" 25-cent raises, that most of the employees were
at the top of their grades in December 1977.
31 Miller's memorandum states that "the bulk of employees and pro-
ductive skills ([fall] in mid-range labor grades of 4 and 5.
32 G.C. Exh. 283 shows the top of labor grade 5, after the January 1,
1978, increase, as $4.15. Deducting the 35-cent increase yields $3.80. In
received less, of course, but others received even more.
It may be reasonably inferred that, by September, a sub-
stantial segment of the work force had received increases
almost equaling, and exceeding the 25-cent increase
given in the past 2 years. For Respondent, in December,
to add to those recent increases still another 35 cents to
cover the cost of living displays a remarkably heightened
sensitivity to employee needs.33
Forshee and Gottlieb advanced one more considera-
tion in their decision-the anticipated location in the area
of a company named Klockner Penta-Plast. The two
spoke of the firm having hired away a few of Respond-
ent's skilled employees; neither witness could name the
employees. There was testimonial concern expressed that
the plant would outbid Respondent for new employees,
but Gottlieb had no information about the wage rates
which the firm (which had not yet opened as of the end
of the hearing in November 1978) was intending to pay.
There was no reason for Respondent to believe that the
arbitrary 35-cent raise would be effective to stop any
leakage of old employees or loss of applicants, once the
plastic company opened, and I question that businessmen
give money to employees on the basis of such an insub-
stantial speculation.
In response to the question, "To your knowledge, did
the employees have any expectation of a wage increase
in the fall of '77?" Forshee said, "Not to my knowl-
edge." It would seem most likely that the two recent
paycheck increases in July and September for many of
the employees made the December announcement of a
35-cent increase, almost half again as much as they had
received in either 1975 or 1976, a remarkable surprise.
Coming on the heels of the unresolved election, this
almost unseemly display of generosity must have been a
potent reminder to the employees of the source from
which all good things flow. While it may be contended
that postelection benefits should be scrutinized with
more care than p;eelection grants, it should be noted that
the final result of the December 6 election was any-
body's guess. The Union was ahead by one vote, with 58
challenges to be resolved. Not only the Union, but Re-
spondent as well, had filed objections to the election
which, regardless of the final tally after resolution of the
ballots, might have required a second election. The fore-
going considerations leave little question in my mind that
the carefully contrived Miller plan would have been al-
lowed to work out its course and the employees would
never have received the 35-cent raise in January had the
Union not showed up in September. I find, therefore, a
violation as alleged.
J. The June 28, 1978, Letter to Employees
The complaint, as amended during the hearing,
charges violative conduct on or about June 28, 1978, "by
order to arrive at a $3.80 figure by adding 4 percent, the pre-4-percent
figure would have been $3.65.
a Forshee testified that, at meetings with employees in November, ex-
pressions of dissatisfaction with the new Miller system had been vented.
That may have been so. It is nonetheless inescapably true that Forshee
and Gottlieb were aware that many employees had received a substantial
benefit from the introduction of that pay plan.
580
GORDONSVILLE INDUSTRIES, INC.
sending to all employees a letter implying that their sign-
ing of authorization cards was for an election only."
On the date alleged, one day prior to a 25-cent wage
increase announced on June 29, as discussed hereinafter,
and 3-1/2 weeks before this hearing began, President
Gottlieb sent letters to all employees to "advise you of
the status of the Union charges against your company."
The letter first recites some of the charges of improper
conduct by Respondent: "By giving you a wage increase
of 35¢ an hour last January; By talking to you about the
Union; By terminating Nancy McDaniel and Steve Bold-
ing; and by making a survey of your needs and desires."
The letter then protests the Company's innocence of mis-
conduct and goes on to state that "the Union demands
because of these issues that we be required to bargain
with them even though you may have voted NO
UNION." The letter continues:
We think that if you signed the Union Authoriza-
tion Card you were only asking for an election,
with the right to vote YES or NO UNION. I am
sure you did not expect a Union without an election
to determine your choice.
The Union or the Labor Board may require that
you attend a hearing in order to question you re-
garding the above issues. You may even be subpoe-
naed to appear at the hearing. If this happens we
know you will respond honestly and responsibly.
We will keep you advised of further events as
they occur in this situation.
Gottlieb testified that he and Forshee felt that "we
should communicate something to the employees about
what the hearings were all about and what was going to
be done and what the charges were basically." Either
Forshee or Respondent's labor counsel drafted the letter.
Gottlieb said that the reference to the understanding of
employees as to the significance of the cards was based
on statements made to him by employees during the
campaign; he was evasive and uncertain on this matter
under further examination, and finally conceded that the
idea for the letter came from Forshee.
Respondent's brief states, "The purpose of the letter,
taken on its face, is three-fold: (1) to bring the employees
up to date on N.L.R.B. proceedings, and to advise them
of the issues; (2) to indicate that they might be required
to testify; and (3) to request that they testify 'honestly
and responsibly."' Counsel neglects to note a fourth pur-
pose, plainly the central one: to notify the would-be wit-
nesses that "We think that if you signed the Union Au-
thorization Card you were only asking for an election,
with the right to vote YES or NO UNION. I am sure
that you did not expect a Union without an election to
determine your choice."
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
601-610 (1969), the Supreme Court approved the Board
doctrine that authorization cards would be considered
valid indicators of union support for purposes of issuing
a bargaining order unless the authorizing language of the
card was "deliberately canceled" by a solicitor who rep-
resented to a card-signer that the purpose of the card
was solely for an election. The June 28 letter does not
expressly carry the employees that far; it speaks of their
intent, and not specifically of representations made to
them. But it comes pretty close to the Gissel exception; it
would take an employee of no great wit to translate
Gottlieb's expression of confidence that the card-signer
"did not expect a Union without an election" into testi-
mony that he was led into that expectation by the solici-
tor.
Purpose (1) given by Respondent, above, was a mar-
ginally plausible reason for sending a letter to the em-
ployees about the upcoming proceeding, although it is
thin; since nothing immediately hinged on the hearing,
such as the deferral of a wage increase, there was cer-
tainly no pressing reason to send any kind of informa-
tional letter. But there appears to have been absolutely
no legitimate purpose served by the explication of what
Respondent believed the employees were thinking in
signing the cards.
I can conceive of only an illicit purpose-to plant a
seed in the minds of employee-witnesses as to the charac-
ter of the testimony which they were expected to give
under Respondent's watchful eye at the hearing. The em-
ployee is entreated to testify not only "honestly," but
also "responsibly." The last is an interesting choice of
words, coming as it does in the context of references to
subjects meaningful to an employee's livelihood: a recent
wage increase termination; and employee "needs and de-
sires." It is also of interest that on the very next day,
June 29, Gottlieb sent yet another letter to the hourly
employees announcing another general wage increase of
25 cents per hour. The General Counsel points out that
Respondent did not explain at the hearing the coinciden-
tal timing of the two letters, and persuasively argues that
"the implication that the two letters were intended to be
linked together is supported by the fact that the 1978
wage increase was not to become effective until after the
summer shutdown, rather than at the time of the June 29
wage increase announcement."
In Gissel Packing, 395 U.S. at 608, the Court observed
that "employees are more likely than not, many months
after a card drive and in response to questions by compa-
ny counsel, to give testimony damaging to the union,
particularly where company officials have previously
threatened reprisals for union activity in violation of
[Section] 8(a)(1)." 1 think that Respondent intended by
the June 28 letter to quicken that probability, relying for
coercive effect on its prior unfair practices; the contextu-
al suggestion of the letter itself; the clear import, most
likely apparent to employees, of the reason for the letter
in the first place; and the backup impact of the June 29
wage announcement. This deliberate attempt to influence
employee testimony was violative of Section 8(a)(1), a
conclusion mandated by the Board's recent decision on
similar facts in J. P. Stevens & Co., Inc., 244 NLRB 407,
408 (1979).
K. The Wage Increase Announcement of June 29,
1978
During the hearing, the complaint was amended to
allege that Respondent violated the Act on or about June
29, 1978, "by granting all hourly employees a 25-cent per
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hour wage increase in order to encourage them not to
support the Union."
As stated above, by letter dated June 29, Gottlieb an-
nounced a general increase of 25 cents per hour for all
hourly employees, to take effect at the end of the vaca-
tion shutdown.
Forshee testified to several reasons for this increase.
First. he said that the 4-percent increase in September
1977 "had not been successful" and management be-
lieved that reversion to the "historical sequence of giving
25¢ each July" was in order. This belief was enforced, as
July approached, by an awareness that the employees ex-
pected to return to the system of receiving a July in-
crease. Finally, Respondent realized that the minimum
wage would again increase by 25¢ in January 1979.
Asked why the early anticipation of the 1979 minimum
wage rise, Forshee said, "Well, the main consideration
was that we did not know at that point in time what the
reaction to the 35¢ an hour increase would have." Gott-
lieb gave testimony similar to Forshee's, but added other
factors- "we were still not getting people" and "we
have to keep the people even with inflation."
Forshee's reliance on the fact that the September 1977
4-percent increase "had not been successful" erases histo-
ry; the intervening 35-cent increase in December was
supposed to have cured Miller's September folly. Gott-
lieb's continued concern with "not getting people" is out
of step with Forshee's failure to mention any such cir-
cumstance. The increase announced in June 1978, togeth-
er with the earlier increase effective in January 1978, to-
gether with the longevity pay of July 1977, together
with the amounts awarded under the 4- percent discre-
tionary increase in September 1977, might have given the
hypothetical grade 5 employee of 10 years' tenure a
raise, within a -year period, of about 85 cents an hour,
as compared with his prior annual increases of a total of
50 cents from July 1975 to July 1976. 1 do not believe
that this unprecedented magnanimity would have found
expression in the absence of the Union. Moreover, the
timing of the announcement, so pointedly proximate to
the June 28 effort to influence testimony at the hearing,
can only be thought to have had an independent purpose
of achieving that objective.
I conclude that the grant of the wage increase on June
29, 1978, violated the Act.
1I. ihll AI ..LGI) 8(a)(3) VIOI.ATIONS
A. The Refusal To Reinstate Nancy McDaniel
On October 25, 1977, employee Nancy McDaniel was
discharged for refusing to perform a certain duty. The
complaint does not allege that the discharge was viola-
tive of Section 8(a)(3). It does claim, however, that Re-
spondent's refusal to reemploy McDaniel the following
day, and thereafter, was unlawfully motivated.
As earlier stated, McDaniel was a known supporter of
the Union. On October 19, while handbilling at the gate,
McDaniel spotted a former employee named Hawley,
who appeared to be drunk. Later that evening, she called
Foreman Delmar Thomas and "discussed Mr. Hawley,"
to what end the record does not show. On the morning
of October 25, Gary Miller called McDaniel into his
office and, with Thomas and Pat McKeown present, told
her he "wanted me to restrict my union organizing on
the outside and he would do what he could to control it
on the inside." He then went on to accuse her of calling
Thomas and questioning "the conduct and ability of a su-
pervisor." McDaniel was told to return to her desk, and
she did so.34
McKeown, in whose offices McDaniel worked, short-
15y thereafter told McDaniel to take charge of the switch-
board from 10 o'clock to noon. She and other clericals
had been trained to substitute for the switchboard opera-
tor, but she had never previously been ordered to per-
form the work for as much as 2 hours. She pointed out
to McKeown that she was busy with her normal work,
and a heated argument ensued, with McKeown telling
her twice to "go on the board or go home." Finally,
McDaniel said, "[I]f you are firing me, put it in writing,"
and McKeown walked away.
One-half hour later, about 10:30, McKeown called in
McDaniel and, telling her she had had time to consider
the matter, again gave her an ultimatum to work the
switchboard or go home. She insisted that "with the
shipments I have got to do, I can't go on the board."
McKeown said, "Nancy, why do you have to be so
damn hardheaded." McKeown then phoned Miller, and
McKeown, McDaniel, and Assistant production Control
Manager Deane trooped into Miller's office, where
McKeown told her that he had punched her timecard
and that she was to leave the plant. McDaniel protested
the tampering with her timecard. Miller then assured her
that her card had not been punched and said he wanted
her to return to her desk, sit down, and not "do any
work because you will not be paid for it." McDaniel im-
plied that she would continue to work.
She returned to her desk and resumed her work.
About 11 a.m., McKeown called her into his office and
gave her a letter with her timecard attached, saying,
"Nancy, this is the letter that you asked for." The letter
read:
Dear Nancy:
You have failed to accept a legitimate work as-
signment and have asked to be discharged rather
than perform a job for which you are qualified and
which you have done in the past.
We are complying with your request and you are
hereby discharged. If in the future you decide that
you can comply with legitimate work requests, such
as working on the switchboard, let us know and we
will consider converting the discharge into a sus-
pension.
':4 The complaint alleges, as a separate violation of Sec. 8(a)(l), that
Miller iolated the Act on October 25 by "telling employees that hey
should restric their union activities outside the plani" Respondent
moves to correct the transcript at p. 1244. line 7, so that "restrict my
organizing on the outside" would read "to the outside." My notes show
that the transcript is accurate, and the motion is therefore denied.
McDaniel's testimony about this incident is uncontradicted and I credit it
lihe ban n her "union organizing on the oultside" was palpably unlawful.
and I o find
582
GORDONSVILLE INDUSTRIES. INC.
After reading the letter, McDaniel said that she could
not accept it, but that if McKeown would "change it, I
will accept it." Her objection to the letter was its claim
that she had "asked" to be discharged. She returned to
her desk and again started working. Soon thereafter, she
took a short break and tried, unsuccessfully, to call the
union office. She then returned to her desk and worked
until lunchtime. During lunch, she called a union orga-
nizer, who told her to accept the letter and leave the
plant. She went to McKeown, got the letter, and depart-
ed. McDaniel denied that she was asked to leave the
plant between her original receipt of the letter and her
eventual departure.
As a result of McDaniel's refusal to work on the
switchboard, employee Linda Cannon, who presumably
also had other duties, was required to spend an addition-
al 2 hours at the job, in addition to the 2 hours she had
spent on the board from 8 to 10 a.m.
The following morning, McDaniel went to the plant
and asked to see McKeown. She was eventually ushered
into the personnel office, where McKeown, Miller, and
Deane were present. McDaniel handed McKeown the
following letter:
Dear Pat:
RE: Your letter dated October 25, 1977.
I would like to state that I did not ask to be dis-
charged.
Now and in the future I will comply with legiti-
mate work requests, such as working the switch-
board. However, I do not feel that I am qualified to
run the switchboard for the length of time request-
ed which are busy hours. If you feel I am qualified
I will to the best of my ability operate the switch-
board.
She stated that she wished to return to work. Miller
said, "Nancy, you do understand we want you to come
back to work and do your work and to relieve the
switchboard when necessary." After some discussion
about the first paragraph of her letter, according to
McDaniel, Miller repeated that "[w]e want you to come
back to work." He told her, however, that he would call
her at home the next day. She said that she would be out
on personal business on that day, October 27, and Miller
then said she would be called on Friday. In fact, howev-
er, McKeown called on Thursday evening and said that
Respondent had decided not to take her back, also in-
forming her that she would receive a letter of explana-
tion.
By certified mail, McDaniel received the following
message from McKeown:
Dear Nancy:
This is to advise that after review of the entire inci-
dent of Tuesday, October 25, it will be impossible
to continue v'our employment with Gordonsville In-
dustries. Your actions after being advised of your
discharge preclude the possibility of converting
your discharge into a suspension.
McKeown presented the primary testimony for Re-
spondent on the events giving rise to the decision to
leave McDaniel unemployed. He said that when he pre-
sented the discharge letter to her at 11 a.m. on October
25. she became "rather loud," saying that the letter was
not properly phrased and she would not sign or accept
it. McKeown said she was told that she did not have to
sign it, that she was terminated, and she should leave. In-
stead, she said she was returning to her desk to work.
McKeown called after her, saying she should leave the
plant. When McDaniel sat down at her desk and started
"shuffling papers," McKeown consulted Miller and
asked that she be removed. Miller said that he would see
if he could get a warrant.
Assistant Manager Deane, a convincing witness, testi-
fied that during the lunch period on October 25,
McKeown told him that McDaniel had refused the letter
and "had refused to leave the plant, and that a warrant
had been issued to have her removed from the premises.
He further testified that when McDaniel sought rein-
statement the next day, he and McKeown told Miller
that they thought she should not be allowed to return,
since her refusal to leave had created a disruptive "at-
mosphere . . . even to the point where law enforcement
officers had to be summoned to have her removed."
Miller "felt a little bit both ways, but he really hadn't de-
cided."
Tom Forshee testified that he was in Louisville when
he was informed of McDaniel's refusal to perform
switchboard work. He thought that she should be dis-
charged, but, recognizing the "legal overtones," recom-
mended that Miller contact Respondent's labor counsel.
The record shows that the October 25 letter was pre-
pared by counsel. When Forshee, who thereafter came
to the plant, was informed about McDaniel's request for
reinstatement, he discussed the matter with McKeown
and Miller. McKeown took the position that McDaniel
should not be reinstated; Miller was unsure, one reason
being his concern about "a potential unfair labor practice
charge." Forshee supported McKeown because of
McDaniel's "very obvious insubordination and disruptive
influence within the office area and secondly a refusal to
leave the premises after being advised of the termina-
tion." He conveyed this opinion by telephone to Presi-
dent Gottlieb, who concurred.
The issue presented is a narrow one: did Respondent,
after lawfully discharging McDaniel on October 25, vio-
late the Act by taking her union affiliation into account
in considering whether to accept her application for rein-
statement?
The General Counsel makes an unusual argument. He
concedes that Respondent "had absolute justification for
unconditionally terminating" McDaniel as of the time
she received the discharge letter at II a.m. on October
25. But, the General Counsel argues, because of her
known union activity and the legal implications of a dis-
charge, Respondent "extended a qualified letter to her,"
which stated that it would "consider" converting the dis-
charge into a suspension should she declare that she
would comply with future legitimate work assignments;
according to the General Counsel, "the question of her
X583
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eventual reinstatement was from this point indelibly cast
in terms of her union membership and activity." Thereaf-
ter, when Forshee made the ultimate decision against re-
instatement, it was freighted with union animus. In other
words, at the time of discharge, McDaniel's association
with the Union worked in her behalf; at the time of the
refusal to reinstate her, 3 days later, it worked against
her.
The claim that discipline invoked against union sup-
porters in the course of a campaign was discriminatory
can often be difficult to resolve, especially where the em-
ployee's union support was notorious. The problem is
that management is dealing with a known time bomb.
Sometimes it will choose deliberately to detonate it, re-
gardless of the legal consequences; sometimes it will ap-
proach with great caution; in either case, the employer's
cognition of the potential unfair labor practice charge, as
well as the benefits to be reaped by successfully punish-
ing a union activist, introduce obscuring artificial con-
straints and considerations into the decision. The prob-
lem is complicated here by the presence of Forshee,
hired to manage the antiunion campaign. Every decision
made by him was made with an eye to the legal conse-
quences and, therefore, to the union activity of Respond-
ent's employees; this, however, could be good or bad for
the employee.
It appears to me that the letter of discharge, holding
out hope of reinstatement, was prompted by caution, and
the General Counsel agrees. As his brief states, Respond-
ent "had every right to fire her, unconditionally, on Oc-
tober 25." The decision to tell McDaniel that it would
"consider" converting the discharge into a suspension
upon her promise that she would comply with future
work assignments was a limb upon which Respondent
did not have to climb, and I think that if McDaniel had
accepted the discharge letter quietly and made the re-
quired promise unconditionally the following day, a deci-
sion by Forshee to refuse to reinstate her might well
have been viewed as an overzealous exercise of his ap-
pointed function to run an effective antiunion campaign.
But McDaniel chose not to follow such a course of
action.
The General Counsel's threshold position is that
McDaniel engaged in no conduct at or after the time
when she was first handed the discharge letter which
would have made her claim to reinstatement more ten-
uous. But Respondent argues that after receiving the 11
a.m. discharge letter, McDaniel made herself even more
persona non grata, both by refusing to accept that letter
and refusing to leave the office as instructed by
McKeown, and that such behavior justifiably obliterated
any consideration for reinstatement held out by the
letter. Here we have a testimonial conflict, which I re-
solve in Respondent's favor.
McDaniel testified that McKeown did not tell her to
leave the premises after she refused to accept the letter.
McKeown, however, said that he twice told her to leave
the office after her refusal, and that she instead defied his
order by returning to work. She sat at her desk and, in
McKeown's word, began "shuffling" papers. McKeown
then asked Miller to have her removed, and Miller said
he would try to get a warrant.
If Respondent did attempt to have McDaniel removed
by the police, that would obviously tend to support the
testimony that McDaniel had refused to leave the prem-
ises. Perhaps because it was a detail lost in a sea of de-
tails, Respondent did not call Miller to testify that he
had summoned the police, but Renee Atkins, a coworker
of McDaniel's who appeared for Respondent, testified
that she saw "officers of the law" on the premises on
October 25. Furthermore, McDaniel, asked if she knew
anything about a warrant being sworn out to remove her
from the plant, said, "I do now. I did not know at the
time, no. I never knew until the 28th day of November."
The record does not show what brought the warrant to
her attention on November 28, but it was obviously in a
context which could not be said to be related to the
unfair labor practice case, since the charge relating to
McDaniel was not filed until December 5.
I am inclined to believe that the police were indeed
called, as a result of McDaniel's refusal to leave after
being handed the discharge letter. That McKeown
would have told her to leave would hardly be a surpris-
ing course for him to take; McDaniel testified that twice
on October 25 before she was fired, McKeown had told
her to "work or go home;" he would very likely have
told her to "go home" after discharging her.3 5
This post 11 a.m. insubordination, coupled with
McDaniel's demand for a modification of the wording of
the discharge letter, and on the heels of the work assign-
ment refusal which legitimately led to that letter, would
be patent and unassailable justification for an employer
to reach a negative result in deliberating its offer to
"consider" converting the discharge into a lesser penalty.
It is true that Respondent equivocated for a while, even
after the second act of insubordination. The reason is
plain enough: Miller's concern about an unfair labor
practice charge being filed. But I believe that the testi-
mony of McKeown and Deane that they thought
McDaniel's entire course of conduct should preclude the
proffered consideration, and Forshee's decision to accept
that advice, rests on reasoning much too substantial for
the Board to disregard. 3 6
5 McKeown's version is also confirmed by the testimony of Renee
Atkins. She testified that she heard McDaniel say to McKeGwn, after re-
ceiving the letter, [Y]ou can't make me leave . I refuse to leave." She
also, as stated, subsequently saw "officers of the law on the premises." I
found Atkins to be a credible witness despite her characterization of
McKeown's voice as "very low" during the argument with McDaniel
contrary to his own testimony that he was "loud;" Atkins conceded that
the "details aren't too clear." She may indeed only have been comparing
the voices of the two; she referred to McDaniel's tone of voice as being
"so loud." Atkins was no longer employed by Respondent at the time of
hearing (she had worked there for less than a year) and had no apparent
reason for fabricating testimony
The testimony of Sally Perkins, a "very close friend" and coworker of
McDaniel's, was not that helpful to the General Counsel She apparently
was not in a position to hear the II a.m. termination interview, since she
testified that after McDaniel left McKeown's office, McDaniel felt it nec-
essary to report the content of the exchange to Perkins: "S]he says you
won't believe what I just got and I said what. She said I just got a letter
saying that I asked to be fired."
36 1 note that even McDaniel's October 26 application for reinstate-
ment was somewhat grudging and not calculated to win Respondent's
heart: "However, I do not feel that I am qualified to run the switchboard
for the length of time requested which are busy hours."
584
GORDONSVILLE INDUSTRIES, INC.
In my view, had McDaniel behaved with some realis-
tic sense of her jeopardy after being handed the dis-
charge letter at 11 a.m.. she might have obviated a per-
manent loss of employment. 37 But she continued to
engage in the very pattern of behavior which caused her
downfall in the first place, and I cannot say that Re-
spondent's decision that her "actions after being advised
of [her] discharge preclude the possibility of converting
[her] discharge into a suspension" would have been dif-
ferent if another, nonunion, employee had been involved;
indeed, it appears that the delay in reaching that decision
was occasioned only by the fear of consequences stem-
ming from McDaniel's support for the Union. I recom-
mend that the allegation as to McDaniel's failure to
obtain reinstatement be dismissed.
B. The Discharge of Stephen Bolding
The complaint alleges that Stephen Bolding was discri-
minatorily discharged on November 8, 1977.
Bolding was hired as a mechanic in June 1976. Person-
nel records in evidence show that his immediate supervi-
sor thought highly of him and his potential. Bolding, as
previously noted, was a noted and active union adherent.
On October 21, he wrote a letter to Gary Miller defend-
ing the Union against an allegation made by Miller in an
earlier distribution to employees, and clearly identified
himself as a union supporter, a fact already made appar-
ent by his frequent handbilling.
While entering the plant on the morning of November
8, Bolding saw some antiunion material posted at two lo-
cations, and he removed several posters from the wall.
James McDaniel informed him that employee Ed Shel-
ton was putting up the posters throughout the plant.
Bolding then ran into Foreman Brown and employee
Shelton, and asked the latter whether he was responsible
for the posters. When Shelton said he was, Bolding, as
he testified, "took him by the shoulders and shook him a
little bit and asked him to quit putting them up and in-
formed him that as fast as he put them up, James and I
would take them down." He stated that he was "almost
laughing" as he did this, and the others responded in like
vein.3 8
Intending to proceed to work at another building,
Bolding was signing out on an employee register at
about 8:30 a.m. when he noticed maintenance employee
Russell Wingfield nearby. According to Bolding, he
"grabbed [Wingfield] by the shoulders and asked him
who was putting up the antiunion literature and before
he could answer, I said I know who it is. It is Ed Shel-
ton. And he confirmed it." Bolding says that he then dis-
cussed with Wingfield whether he was eligible to vote in
the election, and that there was some further conversa-
tion about one of Bolding's duties which Wingfield had
assumed during Bolding's vacation. Bolding testified that
3' There is nothing about McDaniel's record which suggests that Re-
spondent was parting with an employee whose performance was highly
prized. An employee review dated July 18, 1977, gave her a score of 61
out of 100 points, with McKeown commenting, "Attitude & attendance
both below standard, but knows job and does correctly."
a3 Respondent's brief states that Shelton "weighs approximately 300
pounds." While this is dehors the record evidence, it would suggest that
Bolding was in a whimsical mood, at least at the time he encountered
Shelton
when he grabbed Wingfield, he gave him three or four
fast but gentle shakes, and his courtroom reconstruction
of the physical action was mild-mannered and friendly.3 9
He further stated that employees customarily teased
Wingfield, and that their relationship was "very cordial."
Bolding then went about his work. Around 12:15, he
was called to Miller's office. In the presence of plant en-
gineer Ozbey, Miller, referring to a piece of paper, asked
Bolding if it was true that he had assaulted and threat-
ened Wingfield. When Bolding denied any such conduct,
Miller said he had a witness, but refused to disclose the
name of the witness and also refused Bolding's request to
see Mr. Wingfield." Miller asked Bolding to resign.
When Bolding said he would not, Miller discharged him.
Bolding asked for a letter of discharge.
While Bolding was collecting his personal belongings,
Foreman Brown handed him a letter from Miller which
briefly stated that he was being discharged and that
"[t]he reasons for this termination have been reviewed
with you." Wanting something more explicit, Bolding re-
turned to Miller's office. Miller told him that the reasons
for termination had been discussed and that he should
"leave the property." As he left, Foreman Brown offered
to give him a good reference.
Later that day, Bolding saw employee Kenneth Deca-
tur. Bolding asked if Decatur, the only other employee
who worked in the area in which he had encountered
Wingfield, knew who the company witness was. Decatur
said "it was him," but "he had told Gary Miller nothing
that could have hurt me in any way and that he was
sorry."
Russell Wingfield gave a markedly different account
of the events of November 8. He said that Bolding, look-
ing "kind of red in the face" came up to him, grabbed
him by his shirt collar, and asked him if he had torn
down any signs, to which Wingfield replied, "No, I
don't tear any down and I don't put any up." That, ac-
cording to Wingfield, was the end of the conversation.
He said he was not frightened by the physical gesture.
About 30 minutes later, said Wingfield, Bolding ap-
proached him again and said, "Somebody will get hurt
and I mean hurt."
Wingfield contacted his superior, Garland Marks, who
told him to write a note to Miller and to Ozbey. A copy
of the Ozbey note in evidence reads:
I was next to Boiler door as you go to office, and
Stephen Bolding grab me in the collar, said did you
put that sign up. 40 I said I do not put signs up, and
I do not take any down. When he came back he
told me that somebody was going to get hurt, and I
mean hurt.
Wingfield testified that he carried the note to Miller,
who read it simply asked "Is that what happened?" and
received an affirmative reply. Wingfield then returned to
his post. He confirmed that he had previously enjoyed a
39 Bolding is a tall man in his 20's; Wingfield is a smaller man, in his
60's
40 At the hearing. Wingfield stated that he was in error here: what he
meant as "did you tear that sign down."
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good relationship with Bolding, and ultimately agreed
that other employees had on occasion physically teased
him, although in earlier testimony he had denied that he
had ever been touched by employees in the course of
horseplay. 4 1
Garland Marks, foreman of maintenance and security,
testified that Wingfield had told him that Bolding
"grabbed him in the collar and shook him" and subse-
quently threatened that if Wingfield "pulled down an-
other sign something was going to happen to him bad."
Wingfield was "almost crying and shaking, and he was
upset, real upset." Marks left, after telling Wingfield to
report the incident to Ozbey. Marks met Ozbey in the
hall, related the story, and then went to Miller's office to
repeat it. Tom Forshee was in Miller's office at the time.
Marks at some point asked Decatur what had happened;
Decatur said he "had seen [Bolding] grab him, he said I
didn't know what was going on," but he "thought they
was playing or something of the sort."
Kenneth Decatur testified for the General Counsel
that he was present on November 8 in the area with
Bolding and Wingfield; he remembered Bolding saying
something about taking a sign down; he recalled Bolding
being "close to" Wingfield's "shoulder," but did not
recall any contact in the "shirt collar area;" he seemed
sure that Bolding had raised only one arm; and he
thought of the incident as "horseplay." About 30 or 45
minutes later, when Decatur saw Wingfield in the secu-
rity office, Wingfield was "mad" and said that if Bolding
"threatened him again and grabbed him in the collar, he
was going to hurt him."
Ozbey then called Decatur to a front office to ask
what had happened and he said he considered "it was
horseplay." Wingfield was present-he "was hot, Russell
was mad." When asked by Ozbey if he saw Bolding
"threaten Russell or hurt him and grab him," Decatur
said he had not. An hour or so later, Decatur was called
to Miller's office and was asked about the incident. De-
catur "told him as close as I can remember the same
thing as I told Mr. Ozbey." He also wrote out for Miller
the following statement:
I saw Steven & Russell doing what I thought was
playing. Steven reached for Russell somewhere near
collar or upen [sic] chest. I didn't see contact, and
passed it off for a joke.
The area was noisy, Decatur was involved in running
boiler samples and he heard little or nothing of what was
said during the encounter between Bolding and Wing-
field.
Two statements composed by Bolding on November 8,
the day of discharge subsequently given to the Union,
are at some variance with his testimony at the hearing.
While Bolding testified that he had asked Wingfield who
had put up the antiunion posters and then had supplied
the answer himself before Wingfield could respond, one
of the statements instead says that Bolding had asked
4 His explanation of the discrepancy-that he had thought the earlier
questioning related to other horseplay "while this [November 8 incident]
was going on"-is, in context, a distortion of the unmistakable general
thrust of the prior questions
Wingfield if he had been responsible, to which Wing-
field, "said, 'No!' that Ed Shelton had put it up." Al-
though Bolding testified that thereafter he had calmly
raised with Wingfield the subjects of Wingfield's eligibil-
ity to vote in the election and whether Wingfield had
been compensated for recently performing one of Bold-
ing's duties, the statement does not refer to the latter
topic of conversation.
Bolding's November 8 account of the discharge inter-
view has Miller saying, "You know we've had a car get
acid on it and sugar put into a gas tank while it was in
the parking lot," but Bolding did not mention this
remark in his testimony. Of more potential significance is
the fact that the November 8 statement did not mention
that Bolding asked for, and was denied, an opportunity
to talk to Wingfield. But moderating these variances is
some evidence that Bolding's inconsistencies may not in-
dicate fabrication. Although Bolding's November 8 state-
ment refers to Miller saying to Bolding "I have a wit-
ness," it omits stating that Bolding asked for, and was re-
fused, the name of the witness. Nonetheless, at the hear-
ing Ozbey supported Bolding's testimony that this in fact
occurred.
Tom Forshee testified that the decision to fire Bolding
was his. He was in Miller's office when Marks, "very
upset," reported the Wingfield incident. He heard the
same story from Ozbey. He asked Miller what the past
practice had been in dealing with such behavior, and was
told that similar miscreants had been terminated. He saw
the signed statements of Wingfield and Decatur. He de-
cided that Bolding should be discharged because:
[I]t had got to the point where enough was enough.
It was just an increasing type of activity of this
nature that had reached a proportion where it
shouldn't have been tolerated further.
The foregoing reference is to a series of events subse-
quent to the union demand, and partially documented in
the record, in which there had been considerable appar-
ent vandalism, theft, and sabotage involving company
machinery and property, including throwing of acid,
etc.; the vandalism of a half-dozen employee auto-
mobiles; and the mistreatment of two employees, one of
whom had requested that she be reassigned from a shift
because of "the harassment that she was receiving from
pro-union supporters."
Forshee did not meet with Wingfield, Bolding, or De-
catur before deciding to fire Bolding. He testified that
the decision was made before Miller met with Bolding,
and the "purpose of the meeting between Miller and
Bolding [was] to advise him of his termination." He also
said that the information given to Marks and Ozbey by
Decatur appeared to be inconsistent with the written
statement made by Decatur, but he weighed this in the
light of the fact that Decatur had "made the comment to
Mr. Miller I don't want to get anyone in trouble. I don't
want to get anyone fired."
The evidence against Respondent on this count in-
cludes no smoking pistol; nonetheless, I am convinced
that had it not been for Bolding's union activities, and, as
586
GORDONSVILLE INDUSTRIES, INC.
well, the union activity in general, Bolding would very
probably not have been discharged.
Bolding's case, like McDaniel's, is complicated by the
constraining factor that the discipline was being adminis-
tered to a known union supporter and is aggravated by
the fact that the decision was made by outsider Forshee,
without any recommendations even being made, accord-
ing to their testimony, by Miller, Ozbey, and Marks. Al-
though Forshee said that his duties included reviewing
all proposed discipline and discharges to assure consist-
ency and propriety, he could recall no instances other
than the Bolding and McDaniel terminations where he
made "the actual decision." Thus, the question of wheth-
er Bolding should be fired was bucked up to Forshee, a
stranger to plant disciplinary practices and to the persons
involved, and introduced an element of remoteness not
normally present in the plant disciplinary process.
Forshee openly conceded that it had been "communi-
cated [to him] relatively early that Bolding was in-
volved" in the campaign. The question presented is
whether Bolding's involvement, or the campaign itself,
resulted in denial to Bolding of the kind of consideration
that nonunion employees, in a nonunion setting, might
have received. I think the answer is in the affirmative.
Viewed objectively, there was rather plainly a rush to
judgment in the decision to terminate Bolding. Docu-
ments presented from Respondent's files relating to disci-
pline indicate that supervisors making discharge and dis-
cipline decisions in the past normally had interviewed
the participants in alleged misconduct. 42 It seems virtual-
ly certain that, in a less controversial setting, Bolding
would have received similar treatment. The fact is that
not one member of management asked Bolding for his
version of the November 8 events. The very first time
Bolding was confronted was some 4 hours after his en-
counter with Wingfield, when Miller met with him only,
as Forshee put it, "to advise him of his termination."
The disciplinary files in evidence reflect a more delib-
erate approach to other instances of alleged misconduct,
showing that Respondent's supervisors normally consid-
ered all factors, including the record and the potential of
the charged employee. It seems clear that, in ordinary
circumstances, Bolding would have received more equi-
table treatment and consideration than that afforded him
on November 8. Bolding is an unusually pleasant, clean-
cut, and intelligent young man. His employee evaluations
were excellent. Plant engineer Ozbey called him a "very
ambitious person." Foreman Marks said that he was sur-
prised . . . so bad" by Wingfield's report because Bold-
ing was the "[n]icest mannered man you want to see. I
didn't ever have a problem with him until "this problem
right here," Obviously a valuable employee, Bolding
nonetheless received extremely short shrift in the "inves-
tigation" of his alleged offense not even being afforded
the opportunity of presenting to management his version
of the issue, in obvious departure from Respondent's cus-
tomary procedure.
The desire not to investigate is particularly noticeable
because of the circumstances of the case. The note writ-
ten by Wingfield to Miller, describing the events, was
42 See GC Exhs. 272. 273, 274. and Resp Exh 20
stark and shorn of detail, but, according to Wingfield,
when Miller called him in for an interview, all that
Miller asked, referring to the note, was "Is that what
happened?" Had Miller exhibited more interest in the in-
cident, he could have learned from Wingfield that, as the
latter testified at the hearing, he had not been frightened
by the physical touching (if that had been all, "I would
not have said anything"), he did not view the statement
about someone getting "hurt" as being directed at him,
and he had gotten along "fine" with Bolding prior to this
incident.43
Furthermore, Forshee's haste to render an adverse
judgment against Bolding led him to disregard a piece of
evidence which, under ordinary circumstances, would
most likely have provoked more inquiry. As set out, For-
shee, who made the decision, did not personally inter-
view Wingfield, Decatur, or Bolding. His knowledge of
the events was, he testified, based on the second-hand ac-
counts given him by Marks and Ozbey, neither of whom
had interviewed Bolding, and on the statements written
by Wingfield and Decatur. But Decatur's statement
raised a red flag: it said that Decatur thought Wingfield
and Bolding were "playing," and Decatur had "passed it
off for a joke." At the hearing, Forshee stated that this
stance was inconsistent with what Decatur had told
Marks and Ozbey, and that he had attributed this change
of position to Decatur's statement to Miller that he did
not "want to get anyone in trouble."
Asked at the hearing whether he had made such a
remark, Decatur said, "I don't know if I made that state-
ment or not .... I don't remember making that state-
ment to Mr. Miller." But Decatur also testified that he
told Miller, and Miller was not called upon to deny it,
that he thought the contact had just been "horseplay."
There is, furthermore, a serious question whether For-
shee could have relied on an allegedly different version
by Decatur which was purportedly relayed to Forshee
by Marks; although Marks gave inconsistent testimony
about whether he spoke to Decatur before or after he
gave a report of the incident to Miller and Forshee, at
one point he testified clearly that he did not interview
Decatur until he had returned from reporting to the two
managers. 44 Moreover, Marks' testimony as to what De-
43 Resolution of the allegation presented does not require a decision as
to precisely what occurred between Bolding and Wingfield As discussed
above. Wingfield testified that Bolding grabbed him by the collar and
later returned to speak of someone getting "hurt." Bolding testified, on
the other hand, that he grabbed Wingfield in a jocular manner and did
not say anything to him subsequently. While Bolding was an extremely
impressive individual, there is no basis in the record for believing that
Wingfield would have fabricated or exaggerated his version, although I
do note that Wingfield, on the payroll since January 1961, had been a
foreman at one time. I have no doubt that Wingfield was truly provoked
by Bolding; Decatur, the General Counsel's witness, said that Wingfield
was "hot" and "mad" while the matter was being reported to manage-
ment. Nonetheless. Wingfield's genuine ire may well have been a mis-
guided overreaction to some clumsy, innocent approaches made by Bold-
ing I reject out of hand that a man like Bolding offered or intended to
offer a serious threat or harm to the older, smaller. Wingfield, a man
who apparently served as a butt of employee practical joking
4 As stated in the testimony:
Q So you didn't talk to Decatur until after you came hack from
talking to Mr Miller"
A No.
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
catur did tell him is consistent with Decatur's version.
Marks said that Decatur told him that he "thought they
were playing."
Ozbey, the other conduit from Decatur on which For-
shee purportedly relied, testified that when he inter-
viewed Decatur, the latter "really impressed me that it
was serious situation with Russell" Wingfield and Steve
Bolding "at the time." Decatur testified, however, that
he had told Ozbey that it seemed like "horseplay" to
him. It would appear to me that Decatur was giving the
more likely account since, at Ozbey's instance, he
promptly wrote up the memorandum set out above, stat-
ing that he thought it was "playing" and "a joke."4 5 I
cannot conceive that Decatur would have told Ozbey
that it seemed a "serious" encounter to him and then, di-
rected by Ozbey to memorialize his statement, so com-
pletely have reversed himself. Furthermore, Ozbey could
not recall giving a report to Forshee about the Bolding
incident on November 8.
Thus, to the extent that Forshee attempted to brush
aside the discomfiting Decatur memorandum by relying
on purportedly contrary versions given by Decatur to
Marks and Ozbey and relayed to Forshee, the effort
meets considerable obstacles. In any event, the very ex-
istence of such a memorandum, in a situation in which
nuance and detail so obviously could be of significance,
naturally called out for further inquiry, but none was
made. It is striking to read Forshee's testimony that,
when Marks first told him and Miller of the incident, he
directed Marks to return to the participants "and devel-
op as much information as he could relative to the inci-
dent," and then to realize that no one even spoke to
Bolding or sought to more definitively clarify Decatur's
evidence. It is difficult, on these facts, to avoid the infer-
ence that Forshee was donning blinders, hoping that he
could substantiate a case against Bolding rather than
afford him the kind of consideration which had obtained
in the plant prior thereto. "A failure to investigate the in-
cidents upon which the employer relies as grounds for
discharge may reflect an employer's discriminatory moti-
vation." W. W. Grainger, Inc. v. N.L.R.B., 582 F.2d
1118, 1121 (7th Cir. 1978), citing N.L.R.B. v. Gerald G.
Gogin d/b/a Gogin Trucking, 575 F.2d 596, 602 (7th
Cir.).
Not only do the disciplinary files in evidence bespeak
a brand of procedural fairness not applied to Bolding,
but they also suggest that the conduct of which Bolding
was found guilty would not usually, taking all circum-
stances into account, have resulted in permanent termina-
tion. Bolding was thought to have grabbed another em-
ployee by the collar and later uttered an unspecified
threat against "somebody." The records admitted at
hearing disclose no precisely parallel situation. While it
seems clear that Respondent has consistently cracked
down on "fighting," a "grab" is not necessarily a fight;
as Marks, the foreman of maintenence and security, testi-
fied, he does not bother to file reports "lots of times, you
45 Although Wingfield believed that it was Marks who told him to
write out a statement for Miller. Marks said he had not given such an
instruction. I believe that it was Ozbey who told both Wingfield and De-
catur to prepare the statements, as Ozbey indicated at the hearing.
take a couple of men out there throwing an arm or a
shoulder or just grabbing each other, petty stuff."
The pattern of discipline revealed by the evidence dis-
plays a general flexibility over the years even as to em-
ployees who had participated in a fight. Thus, in March
1970, employee Bell was fired for fighting, with the pro-
viso that Respondent "would consider for reemployment
at some future date;" Bell was rehired in July, the super-
visor noting that he "had a long talk with this man and
he is ready to come back to work and do a good job for
us." Bolding was given no second chance. In 1972, em-
ployee Riner, in a prolonged incident which moved from
room to room, "grabbed David May at the collar of his
shirt," "pushed D. May against the table," and "struck
D. May in the mouth." Riner was offered a job on the
night shift "because of his long service instead of firing
him." While other employees have been flatly terminated
for fighting either the incident has been egregious or ref-
erence has been made to aggravating circumstances ("her
lateness and absenteeism is a problem," "has been a trou-
blemaker in the past;" employee "appeared to be drunk
on the job"). Against this background, it is difficult to
believe that an obviously useful and respected employee
like Bolding would have been terminated permanently in
other circumstances in which Respondent in good faith
believed him guilty of the charges made by Wingfield.
The injudicious haste with which Bolding was expelled
suggests an ulterior motive.
That even Forshee thought that the assertions made by
Wingfield might not ordinarily be enough is indicated by
his testimony that discharge was dictated because:
[I]t had got to the point where enough was enough.
It was just an increasing type of activity of this
nature that had reached a proportion where it
shouldn't have been tolerated further.
Forshee referred here to the evidence of harassment
and vandalism by unknown persons whom he assumed to
be supporters of the Union. His statement says to me that
Bolding was terminated not so much for abstractly im-
proper employee behavior as for conduct that represent-
ed the "type of activity" which Forshee had thus far
been helpless to retaliate against. The implication is that
Forshee needed a target for reprisal and that if the con-
tretemps between Bolding and Wingfield had concerned
some private matter, Bolding would have received a dif-
ferent sort of consideration. In my view, a discharge de-
cision so grounded, without more, would be violative,
since it would inject into the deliberation about the liabil-
ity and punishment of a union supporter the suspected
sins of other union supporters.
Aside from that theory of the case, however, which
the General Counsel does not advance, I am persuaded
that the evidence reasonably supports the inference that
Respondent was so anxious to find Bolding guilty of the
conduct charged against him that, contrary to its routine
practice, it strained to avoid any possibility of exculpat-
ing him or reducing his punishment. I can only conclude
that it did so because of what appeared to be a fortunate
opportunity to eliminate a front-line union adherent. I
further believe that had Respondent not perceived Bold-
588
GORDONSVILLE INDUSTRIES, INC.
ing as an enemy, rather than a valued employee, he
likely would be employed by Respondent today. This is
"discrimination . . . to . . . discourage membership" in a
union, as proscribed by Section 8(a)(3).
IV. 'tHE AlL.E(iF.D 8(a)(5) VIOI.ATION
The complaint alleges that by its refusal to honor the
Union's September 23 demand for recognition, Respond-
ent violated Section 8(a)(5), and that, because Respond-
ent's commission of unfair labor practices rendered un-
likely the possibility of holding a fair election, the appro-
priate remedy for those unfair labor practices is an order
which requires Respondent to bargain with the Union.
.L.R.B. v. Gissel Packing Co., supra, 395 U.S. at 610-
613, authorizes the entry of such an order in appropriate
circumstances.
A. The Composition of the Unit: the Challenged
Ballots
Prerequisite to issuance of a bargaining order is a find-
ing that the Union represented a majority of employees
in an appropriate bargaining unit "at one point," Gissel,
supra, 395 U.S. at 614. 4 6 The answer agrees with the
complaint that an appropriate unit consists of:
All production and maintenance employees em-
ployed by Respondent at its Gordonsville, Virginia,
location, but excluding office clerical employees,
guards, professional employees, and supervisors as
defined in the Act.
Whether, as the complaint also asserts, the Union has,
since September 23, 1977, by virtue of authorization
cards secured by the Union from employees, been desig-
nated by a majority of employees in that unit as their
collective-bargaining representative, is seriously disputed
by Respondent.
The first dimension to be determined is the size of the
appropriate bargaining unit at relevant times. The Gener-
al Counsel considers September 26 as the first "critical
date," characterizing it is the day on which Respondent
refused to agree to recognize the Union. The letter refus-
ing recognition was dated September 27; nonetheless, it
would appear, from Trading Port, Inc., 219 NLRB 298,
301 (1975), that a bargaining obligation could begin as of
September when the Union had made its demand and
when Respondent, by its employee survey, "embarked
on a clear course of unlawful conduct." See First Lake-
wood Associates, Limited Partnership, et al., 231 NLRB
463, 464, 475 (1977). It is further appropriate to consider
the Union's demand and Respondent's refusal as "con-
tinuing," thus permitting consideration of those authori-
zation cards signed on and after September 26 (with, of
course, adjustment for changes in the composition of the
unit), Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223
NLRB 394, 413. Because of limitations of the evidence
presented, the General Counsel, "for ease of proof,"
would terminate the continuance of the demand on Oc-
tober 16.
4' The Board has so construed Gisrel and the Act. United Dairy Farm-
ers Cooperaiv Asociation, 242 NLRB 1026 (1979)
The parties have stipulated to several lists of employ-
ees who were concededly in the appropriate unit from
September 19 to October 16, totaling 315 on September
2647 and declining to 305 by October 16. The only other
potentially includable employees for this period are 18
employees who were on the payroll in the relevant
period and thereafter, who voted in the December 6
election, but whose eligibility as members of the bargain-
ing unit is controverted.
As indicated light-years earlier in this Decision, the
Regional Director consolidated for hearing with these
complaint cases certain issues arising out of the election,
including the resolution of challenges to votes cast in the
December election by 25 persons. One of those votes
was cast by Stephen Bolding; since I have concluded
that he was unlawfully discharged, his ballot should be
opened and counted. Atlantic Foundry and Patter Corpo-
ration, 192 NLRB 745, 749 (1971). At the hearing, the
parties agreed that six of the challenges, including that
made to the ballot cast by Nancy McDaniel, should be
sustained. That leaves for determination the eligibility of
18 voters. Since all 18 were on the payroll in September
and October, their status also affects the size of the bar-
gaining unit at that time. Accordingly, in order to re-
solve the threshold question of the size of the unit, it
seems logical to discuss the challenged ballots at this
point.
The General Counsel's brief takes the inviting course
of disposing of all 18 challenges in a sentence: "For the
purposes of argument, the General Counsel contends that
all those employees whose community of interests was
litigated in the Charging Party's challenge case are ineli-
gible." Of course, the status of these 18 individuals, as
explained above, is material not only to "the Charging
Party's challenge case," but also to the 8(a)(5) case. Re-
spondent's brief is almost as succinct on these issues, con-
tending that 15 of the challenges should be overruled,
but conceding that I challenge, to the ballot of Patricia
Hess, is valid. Although Respondent's brief fails to state
a position on the ballots of Marilyn Dowdy and Regina
Meeks, I will assume that it supports opening and count-
ing them.
The Charging Party, which filed the challenges to 17
of the 18 remaining ballots, 4 8 has addressed the issues at
some length on brief. The considerable amount of testi-
mony taken on the subject of unit placement will, regret-
tably, require substantial summarization.
I. Ray Carpenter, Jr.
Ray Carpenter, Jr., has been employed by Respondent
since 1961, in later years as an expert mechanic. As a
result of the mutual interest by Respondent and the local
school system in such a project, a vocational education
program for industrial knitting was established, by agree-
ment between the system and Respondent, for the school
year beginning late August 1977, and Carpenter was as-
4 The total 298 as shown on G.C Exh 287 plus 17 (including William
Carter, see note at bottom of GC Eh. 288) as derived from G C Exh
288
'4 The other challenge was filed by he Board's agent because the em-
plo.ee's name was not on the eligibility list
589
DECISIONS OF NATIONAL LABlOR RELATIONS BOARD
signed to teach the course. He signed a standard teaching
contract with the system in the amount of $10,287 for a
10-month period and, around the same time reached
agreement with Respondent for continued partial em-
ployment with it at the rate of $3,713 annually.
Carpenter and Respondent reached an understanding
that during the school year, he is required to spend at
least 10 hours per month working for Respondent, and
to work full-time for Respondent during the school
summer vacation. Carpenter testified that during the
winter of 1977-78, he spent his monthly time at Re-
spondent's facility primarily in consulting about items re-
lating to his school work, but also in troubleshooting ma-
chinery problems. During the summer of 1978, he was,
as agreed, at the plant for 40 hours a week on what ap-
pears to have been a freelancing basis which allowed his
skills to be used to their best advantage. His seniority, in-
surance entitlements, and other employment benefits
were maintained throughout, and he has continued to
appear on Respondent's payroll.
Carpenter's ties to the bargaining unit are, I believe,
sufficiently strong to warrant his inclusion. During the
winter, he consistently spends at least 10 hours a month
at the plant; during the summer months, he is present at
the plant for 40 hours a week. Despite his somewhat un-
usual status, I would conclude that Carpenter, a veteran
employee, has maintained a continuing and ongoing rela-
tionship with the bargaining unit and has a sufficient
community of interests and identification with the other
production employees to share in deciding whether or
not they should be represented by a union. He is at least,
as Respondent argues, "a regular seasonal employee with
an expectation of continued employment." See Trans
World Airlines, Inc., 211 NLRB 733, 734-735 (1974).4 "
I do not find any substantial basis for excluding Car-
penter on the alternatively proffered ground that he "has
the authority to effectively recommend the hiring of pro-
duction employees." His testimony indicates that Re-
spondent has agreed to give a trial job to any of Carpen-
ter's students who apply for work and, at best, he has
volunteered advice to Respondent about the kind of
work for which a student would be best suited.
I would, therefore, consider Carpenter to be a unit em-
ployee both in September and December 1977. His ballot
should be opened and counted.
2. Alton Thomas
Alton Thomas, who was a "mechanic supervisor" until
1973, was assigned then as an "R & D Mechanic" 5 to
the research and development area, at an increase in pay.
He works there now under Jim Spencer, who is "in
charge of it," and with two mechanics named Carpenter
and Peregoy (the latter still learning the trade).
Thomas' testimony shows that he engages in physical
labor, setting up new patterns and working out problems
in old ones. While he probably gives instructions to Car-
49 I do not doubt that if the arrangement with the school system
should come to an end. Carpenter would return to full-time employment
with Respondent
0 C.P. Exh. 14
penter and Peregoy (his "helpers"), his testimony estab-
lishes that Spencer makes the crucial decisions.5 '
Other testimony as to the special status of Thomas-
that he is salaried and does not punch the timeclock,5 2
that he receives an hour for lunch, that he sporadically
answers inquiries or receives instruction from his former
supervisor in New York when Spencer is absent-does
not suffice to establish that he is a statutory, supervisor. ':
While the record shows, as Charging Party points out, a
substantial disparity between the wages earned by
Thomas and Peregoy in 1977 ($15,300 and $7,700),54
there is simply no basis in the other evidence more di-
rectly relating to supervisory authority for a conclusion
that Thomas possesses such authority. Davison-Paxon, a
Division of R. H. Macy and Company, Inc., 180 NLRB
470, 471, fi. 4 (1969). Similarly, his special status as an
expert experimental worker, and the privileges accorded
him, are not so striking as to require a conclusion that
his community of interests with other employees is negli-
gible.
Accordingly, I would conclude that Thomas should be
counted within the bargaining unit for 8(a)(5) purposes,
and that his ballot should be opened and counted.
3. Ellen Atkins, Annette Rogers, Patricia Hess, and
Wanda Fotusky
The unit description agreed upon prior to the election,
and echoed in the complaint, specifically excludes "office
clerical employees." The disputed placement issues left
to be resolved primarily involve Charging Party's con-
tention that the employees should be considered "office
clericals" and Respondent's competing claim that they
are "plant clericals."
Historically, the Board has taken the position that
while "office clericals" should normally be excluded
from production units, Swifi & Company, 119 NLRB
1556, 1558 (1958), workers who perform clerical duties
in close association with the production process are in-
cluded in production units, usually under the rubric of
"plant clericals." Goodman Mfg. Co., 58 NLRB 531, 533
(1944). The Court of Appeals for the Ninth Circuit re-
cently opined, "The line between plant and office cleri-
cal is faint; sometimes it disappears." Pacific Southwest
Airlines v. N.L.R.B., 587 F.2d 1032, 1041 (9th Cir. 1978).
It might be added, after a review of some of the cases,
that the determination is occasionally as much visceral as
cerebal, with the guiding criterion, of necessity, being no
more specific than that set out by the Board in The F. &
M. Schaefer Brewing Co., 198 NLRB 323, 326 (1972):
"Clerical employees may be included in a unit of produc-
5' The fact that Carpenter considers himself "in charge" of Carpenter
and Peregoy on the rare occasions that Spencer is not in the plant is of
little consequence.
52 The fact that employees are salaried is not necessarily a material dis-
tinction between them and hourly paid production employees. Libbey
Glass Division. Owvens-lllinois. Inc., 211 NLRB 939, 940-941 (1974).
: The testimony discloses that Thomas and Peregoy have only four
common hours of working time Thomas works from 6 am to 4 p m.,
Peregoy from 12 p.m. to 10 p m
14 Thomas, in 1977. was 42 years old and had worked for Respondent
since 1963; Peregoy was 21 years old and had orked for Respondent
since 1976
590
GORDONSVILL E INDUSTRIES, INC.
tion and maintenance employees where they enjoy inter-
ests and working conditions similar to those of produc-
tion and maintenance employees.5'
Respondent's facilities consist of three plants (Mills A,
E, and W); the largest plant, and the one in which all the
remaining disputed employees save one are located, is
Mill A. Within the four walls of Mill A are located pro-
duction and maintenance employees and clerical emplo-
ees, all on ground level with the exception of certain em-
ployees officed in a mezzanine-like structure deep within
the mill, as hereafter, discussed.
The general offices of the plant are located next to the
front entrance of Mill A. although the record says little
about them. We do know that the production control of-
fices, in which Nancy McDaniel used to work with four
other clericals, are situated there: we also know that
those five employees have been stipulated by the parties
to be "office clericals." There is also an "IBM computer
room" in Mill A. Gary Miller referred to people "in-
volved in accounting, general administrative functions,
data processing and those people involved in general
management." Bolding testified that some 8-10 secretari-
al workers are located in the front offices. The employ-
ees who remain in dispute work in offices and rooms
scattered throughout what can be thought of as the pro-
duction areas of the plants.
It is a recurring theme of the Charging Party's brief
that because the production control clericals are agreed
to be office clericals; because there is some occasional
contact and similarity in working conditions between
these employees and the remaining disputed employees;
and because some of the contested employees exercise
secretarial or filing skills, the latter should more appro-
priately be grouped with the excluded production con-
trol employees than with the bargaining unit employees.
Boeing Vertol Company, 233 NLRB 866 (1977), cited in
support, found certain employees to be office, not plant,
clericals, but only on a showing that they "share[d] a
strong community of interests" with other employees
stipulated to be office clericals. Speaking generally, no
such "strong" relationship between the production con-
trol employees and those hereafter discussed has been
demonstrated here.
Certain ingredients predominate in Board decisions
finding employees to be plant, rather than office, cleri-
cals, despite the existence of factors which might point
the other way. The indispensable and conclusive element
is that the asserted plant clericals "perform functions
closely allied to the production process or to the daily
operations of the production facilities at which they
work." Fisher Controls Company, 192 NLRB 514 (1971).
Normally, plant clericals spend all or most of their
working time in the plant production area. Normally,
they are involved in the production process itself: for ex-
ample, an employee who works in the production area
requisitioning parts needed by production employees is a
plant clerical; an employee who fills out forms in the
billing department located in the administrative offices is
.S Compare Pacific Sourhwe*t i.4rlne, upra at 1040 "in reviewing the
Board's determination, e focus the issue more preciselt by simply
asking: Do these employees share a ufficient community of interest .ilh
production w orkers to justif a ingle unit?"
an office clerical. See Raytee Company, 228 NLRB 646,
647 (1977). The fact that clerical employees exercise sec-
retarial skills and are classified as "secretaries," "stenog-
raphers," or "clerk-typists." is no obstacle to finding
them to be plant clericals, given other factors which tie
them to the production process and other production
employees. Swift & Company .supra, 119 NLRB at 1567;
We'perlrhauser Company, 173 NLRB 1170, 1171, fn. 8
(1968). For other cases which have general application
to one or more of the employees hereafter discussed, see
iking of Minneapolis, Divisionr of The Telex Corporation,
171 NLRB 1155, 1160 (1968): John S. Barnes Corporation,
180 NLRB 911, 931 (1970); United States Postal Serice,
200 NLRB 1143, 1146-47 (1972): United Telephone Com-
paniy of Ohio, 205 NLRB 664, 665 (1973); AIL, a Division
of Cutler-Hammer, Inc.. 214 NLRB 203, 204, 208 (1974);
The Baptist Memorial ttospital, 225 NLRB 1165, 1167 68
(1976); C & T Manufacturing Company, 233 NLRB 1430,
1439 (1977).
The contested employees described hereafter received
the same fringe benefits and were on the same pay
schedule as the production employees; as far as the
record shows, the only distinctive working condition for
some of them as opposed to the production employees,
invol ed their lunch periods and rest breaks, as noted
below.
Ellen Atkins, Patricia Hess, Annette Rogers, and
Wanda Fotusky worked in a closed second-floor struc-
ture built over the dyer's office in the dyehouse area, lo-
cated near the back wall of Mill A and a few hundred
feet from the front offices. The superintendent of dyeing
and finishing, Charles Arruda, was located in the same
area, as were other "management people." The office
was open from 6 a.m. to 10 p.m., to coincide with two
shifts, and the four employees worked different shifts.
They punched the timeclock.
Atkins spent 2 days a week typing and filing for
Arruda, and the other 3 days in making batch cards,
filing folders, and doing whatever typing was required
by Arruda or other management officials. It would
appear that, generally speaking, the primary function of
the four employees was making up batch cards, which
contained the formula for the dye to be put in a given
order. Once batch cards were made up, they would be
taken downstairs to the dye office or dropped in a chute
into that office.
A December 12, 1977, memorandum from Arruda to
the personnel office requesting a reclassification of
Atkins from Clerical A to Secretary Junior, states that
she "is currently doing the duties of a secretary," noting
that she "takes frequent shorthand, does typing, sorts
through my mail, handles confidential information and
takes care of my personnel files." The latter references
were, Atkins testified, to her duties of typing for Arruda
memorandums dealing with employee disciplinary prob-
lems, once or twice every 2 weeks.
Although Atkins would leave her office three or four
times a day to go to the front offices, to the quality con-
trol area, or elsewhere in the plant, she went onto the
dyehouse floor only "maybe once or twice a week" for 5
minutes per visit, perhaps to talk to an employee about a
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
batch card. Apparently, in making these visits, she spoke
primarily to the batching foreman. She was in occasional
telephonic communication with other areas, normally
speaking to a management representative. Unlike the
production employees, Atkins was allowed a full hour
for lunch, and, also distinctively, was permitted to take
her two 10-minute breaks when she wished.5 6
Patricia Hess spent her time making up batch cards for
the dyers and doing some filing. She left the upstairs
office only to go to the downstairs office of the dyers to
do filing and, once a day, to go to the front office to
pick up mail. She took a 20-minute dinner break in the
dyehouse office when convenient, 57 and had one un-
scheduled 10-minute rest break. Hess, who had begun
work for Respondent only in June 1977, testified that she
did not "know any of the people on the floor."
On November 3, 1977, Hess presented Arruda with a
letter stating that she would be "leaving as of November
18 to assume position of a new job." She began to work
for her new employer on November 18, but, having
"volunteered to stay until the new girl was trained,"
Hess also continued to work 3 hours a day for Respond-
ent; after Wanda Fotusky had completed the training of
the replacement, Hess finally terminated, around mid-De-
cember.
Wanda Fotusky testified that she is the "senior cleri-
cal" in the dyehouse office, under the supervision of
Arruda. In the office she calculates dye formulas accord-
ing to the weight of the lot involved, files formula cards,
answers the phone, assigns numbers to new colors, and
processes rejections. She leaves the office perhaps twice
a day to obtain samples, and four or five times a day to
give messages to employees. She takes a 20-minute lunch
and two 10-minute breaks.
The Charging Party attempted, inter alia, to demon-
strate that Fotusky is a statutory supervisor, and, in
doing so, introduced some documents signed by her. Fo-
tusky's name appears on employee evaluations which
state that they are "to be completed by foreman on any
change of rate." The forms contain a paragraph of sub-
jective and conclusionary comments about the employee,
as well as a numerical rating of the employee on each of
10 attributes. Fotusky's name is signed under the heading
"Approvals" and next to the blank marked "Foreman;"
subsequent signatures include that of Arruda and the
plant manager. Fotusky testified that she fills out these
forms because Arruda asks her to; she works a split shift
and therefore knows the rated employees better than he
does. She also stated that she does not fill these out rou-
tinely, but only when Arruda hands her a form.
Fotusky's signature also appears, in a box marked "Su-
pervisor/Foreman," on a leave of absence request filed
by an employee in August 1977. She explained that
Arruda asks her "to train girls or go over things with
them," and "this was the only place there was to sign."
She also noted that Arruda had her sign the form "be-
56 According to Miller, nonclerical, nonmaintenance. and nonsupervi-
sory employees receive either 20 or 30 minutes for lunch and do not
leave the plant. Nancy McDaniel testified that the maintenance shop me-
chanics receive "a half an hour or hour, whichever they want to take"
57 Hess was on a 2-10 p m. shift.
cause I would be taking over more or less all of her
duties while she was off."
Fotusky also signed some records of phoned-in absen-
tee reports in a space denoted "Supervisor's Signature,"
but other testimony by Wanda Lamb makes it appear, as
Fotusky testified, that any employee who takes such a
call would employ a similar procedure.
The record is relatively silent as to Annette Rogers.
Atkins testified that Rogers prepared "submits"-patches
of dyed material-and took them to the quality control
area, made up batch cards, filed, and answered the tele-
phone.
It seems clear that Atkins, Fotusky, Hess, and Rogers
fall within the mainstream of the Board's plant clerical
classification. They work in a production area and, al-
though they do not seem to have substantial contact with
other production employees, they contribute directly and
meaningfully to the production process by making up the
batch cards. Atkins testified that their location in the
production area was "important" because of the frequent
immediacy of the need for the batch cards, in which
minutes could make a difference. They are under the su-
pervision of Arruda, who also supervises unit employees.
Atkins is more of an office clerical than the others, but
not enough, I think, to warrant treating her differently.
The Charging Party contends that she is a confidential
employee because she occasionally typed memoranda
about "disciplinary problems of employees" and did
some filing in employee personnel files; the evidence on
this point, however, is too unspecific to permit a finding
that Atkins "assist[ed] in a confidential capacity to per-
sons who formulate, determine, and effectuate manage-
ment policies in the field of labor relations," The B. F.
Goodrich Company, 115 NLRB 722, 724 (1956). There no
showing that the memoranda or the materials filed were
intended to be confidential or, indeed, that superintend-
ent Arruda exercised any of the enumerated functions. 58
The Board has held, for instance, that the mere typing of
material relating to grievances is insufficient to render an
employee confidential. Weyerhaeuser Company, 173
NLRB 1170, 1173 (1968); ITT Grinnell Corporation, 212
NLRB 734 (1974). It has recently stated that an employ-
ee's "access to confidential information, some of it relat-
ing to labor relations, or her having typed the above-de-
scribed [evaluations of employees, etc.] documents," did
not a confidential employee make. Los Angeles New Hos-
pital, 244 NLRB 960 (1979). Furthermore, unless the
duties of an employee are concerned with labor relations
at a level higher than departmental, a fact not established
here, the Board will not consider the employee to be a
confidential. Swift & Company, supra, 119 NLRB at 1567.
Nor do I agree with the argument that Fotusky was a
supervisor of the other three clericals. Her hours, for one
thing, did not correspond to theirs. I glean from the
record that she was an experienced employee (13 years
as of 1978) who gave routine guidance and set routine
priorities for the younger employees. The evidence most
5" I do not believe that Arruda's conclusionary description of Atkins'
duties in his December 1977 memorandum attempting to secure a promo-
tion for Atkins adequately establishes that she was a confidential employ-
ee within the Board's definition
592
GORDONSVILLE INDUSTRIES, INC.
suggestive of supervisory authority within the meaning
of Section 2(11) were the evaluations on employee rate
changes signed by Fotusky at Arruda's occasional re-
quest, but I think the fact that she only made them out
when asked indicates that Arruda looked to her familiar-
ity with the employees for assistance rather than as a
recognition of her status.
Hess, as Respondent concedes, was not entitled to vote
in the election. On the foregoing findings, however, she
should be counted as a unit member in September and
October. The other three employees were members of
the unit then, and, as well, their ballots cast in December
should be opened and counted.
4. Carol Bennett
Carol Bennett is the only lab technician in the dye-
house area on the second floor, located near the office in
which the dye house clericals work.
At the relevant times, the only other employee in the
lab was Ben Bruner, the lab supervisor, who trained Ben-
nett to perform her duties of mixing dyes and sample
dyeing new colors. Her job takes her to the production
area "every day" to cut samples and get chemicals and
dyes, located in different storage areas. Bennett's time in
the laboratory amounts to about 80 percent, and other
"people" come in occasionally. She gets 20 minutes for
lunch, which she takes when convenient and which she
usually spends in the dyehouse office with "the clerical
girls," and she takes her breaks (which may range up to
2 hours, depending on her work) in the lab. During the
relevant period, she spent an hour or two per week oper-
ating the mill switchboard. Bennett punches out for
lunch only if she leaves the plant; if she does not do so, a
matter of discretion, she is paid overtime, unlike regular
production employees.
Certain characteristics of her work routine ally Ben-
nett with the office clericals and others do not. Howev-
er, because of the manual nature of her work and the
fact that she spends the equivalent of I full day per week
on the production floor in various areas of the plant, I
find it difficult to consider her an "office clerical." I con-
clude that she should be placed in the bargaining unit
and that her ballot should be opened and counted.
5. Beverly Robertson, Patricia Knowles, and Linda
Perkins
Robertson, Knowles, and Perkins perform clerical
work in the quality control area. The department is an
isolated area in the rear of the plant, surrounded by walls
which also enclose the adjacent testing department.
The immediate supervisor of the 3 employees is
Dennis Tomlinson. 59 Robertson spends "at least 90 per-
cent" of her time in the office area, primarily engaged in
typing letters, reports, and memoranda, including em-
ployee "disciplinary reports," for Tomlinson and for sal-
aried personnel located in the nearby research and devel-
opment trailer; answering the phone; and filling out pro-
59 While Robertson testified that Tomlinson "doesn't supervise any
other areas" but her own. Sherry Hall, a testroom employee discussed
infra, testified that Tomlinson is "oser the test room area" but not "over
any other area" that she knows of
duction reports. Her time away from the office is, in
part, spent in collecting mail from the front office in the
morning, and distributing it to her own area, to the
people in the trailer, and to personnel in the sample de-
partment; the latter takes "just a couple minutes." She
also occasionally (some weeks, every day) walks to the
greige lace warehouse area to see whether certain goods
have arrived and, in doing so, may speak to the ware-
house supervisor or an employee, for periods ranging
from a few seconds to 15-20 minutes. She also does busi-
ness with the front office.
Robertson, Perkins, and Knowles are in communica-
tion with the challenged employees in the adjacent test-
ing room (Smith, Dowdy, Hall, and Durrer), who are in
the area of the former employees "all the time," looking
for folders and such; Robertson also goes into the testing
room on various missions, and orders supplies for that
room. During the relevant periods, Robertson worked on
the switchboard on a prearranged basis.
Robertson, Knowles, and Perkins are allowed 60 min-
utes for lunch; when they choose not to leave the plant,
they eat in their office rather than the canteen used by
production employees. They have 2 scheduled 10-minute
breaks.
Knowles is in charge of the "finishing desk," checking
against standards the finish on orders. While she occa-
sionally leaves her desk to help look for lost goods or to
go to the front office to deliver copies, she stays in the
quality control office "at least 90 percent, if not more"
of her time. When goods have been tested, Knowles,
using folders received from the testing room, "writes up
an evaluation sheet and . . . put[s] certain results and all
the information about the dye order that New York
needs to know." With this evaluation, she dispatches a
sample of goods to New York for comment. Knowles
also does filing.
Perkins is in charge of the "color desk," comparing
shades of color to standards. She "does a lot of her work
over the phone," speaking with other people in the plant
or in New York. If a color is off, Perkins writes a rejec-
tion slip which goes to data systems. Perkins also attends
meetings with managerial personnel about rejected fab-
rics and occasionally goes to the dye house to place
orders in a basket or to locate a missing standard. Per-
kins sends cards to New York and to customers, and also
files.
Although their duties vary somewhat, as a whole it
seems to me that these three employees should be con-
sidered essentially production clericals. They work in the
production area and are in contact with employees found
here to be production employees. Their primary func-
tions clearly contribute directly to the production proc-
ess. I would include them in the unit and also count their
ballots. Risdon Manufacturing Company, Inc., 195 NLRB
579, 581 (1972).
6. Sherry Hall, Virginia Durrer, Frances Smith, and
Marilyn Dowdy
Four more employees work in the quality control area,
in the testing room adjacent to the office in which Rob-
ertson, Knowles, and Perkins are located. Hall, Durrer,
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith, and Dowdy perform testing of various kinds of
fabrics, such as measuring width, counting stitches, wash
testing, hand stretching, "I-P 4" testing (cutting two
loops, sewing them together and stretching them on a
machine), and drop testing (which also involves cutting a
loop in fabric and testing it on a machine). Materials for
testing are received in the testing room through a small
window. Two of the employees who work from 8 a.m.
to 5 p.m. receive an hour for lunch; the other two,
whose hours are 6 a.m. to 2 p.m., have a 20-minute
lunch. Hall testified that the four of them probably do
not leave the testing room on business more than once a
month.
Mobil Chemical Company, 70 LRRM 1187, a decision
by a Regional Director, tends to support the Charging
Party's contention that these testers should not be includ-
ed in the bargaining unit; there, however, the quality
control technicians resembled laboratory technicians
whom the parties had agreed to exclude from the unit.
Here, the testers have little contact with, and little simi-
larity to, the office clerical employees. They perform
simple, easily learned manual functions. They could not
readily be deemed "office clericals." So far as I can see,
there is materially little difference between these quality
control employees and those included in the production
and maintenance unit in Ambrosia Chocolate Division of
W. R. Grace & Company, 202 NLRB 788 (1973). In view
of their many similarities to production workers, I would
consider it appropriate to include them in the unit and to
count their ballots.
7. Wanda Lamb, Brenda Still, and Regina Meeks
Wanda Lamb and Brenda Still work in a small group
of offices off the knitting production floor together with
three "supervisors" Spencer, the knitting superintendent,
Hawkins, his assistant, and Skipper, engaged in quality
control. Lamb, classified as a "Clerical Senior" until
around November, when she became a "Secretary
Junior," is occupied with typing and filing reports and
memorandums for the manager (including employee dis-
ciplinary reports), with preparing defect reports, and
with stamping production tickets with a rubber stamp.
The latter function takes Lamb onto the production floor
for 30-60 minutes a day, during which time she places
labels and the production tickets on machines. Lamb
goes to the front offices to "make copies, distribute mail,
take something to the personnel department," and will
occasionally go to the quality control department to
make copies and take samples to be tested. For a total of
about 3 weeks during two periods a year, she and Still
work on the production floor, inventorying the contents
of the machines by themselves.
Lamb also fills out absence forms each day, having
been given the name of the absentee and the assigned
reason for absence by the three knitting shift foremen.
Further, she does undefined "work" for the three fore-
men and the beaming supervisor: "anything [they] would
need. She and Still work from 8 until 5, and take 30 min-
utes for lunch; Lamb usually leaves the plant to have
lunch, Still does not. Neither takes breaks away from
their desks, and apparently have no scheduled breaks.
Lamb and Still substituted at the switchboard during the
material times. Lamb knows the production employees
on the knitting floor by name and talks to them during
the day.
According to Lamb, Still (either a "Clerical B" or a
"Clerical Senior") does "some" typing, including person-
nel memos, but her primary function seems to be making
up production summaries and, like Lamb, stamping pro-
duction tickets. Still may also place orders by phone for
items with Mill W, although the record is unclear as to
when Still assumed that function.
Lamb testified that Regina Meeks (perhaps a "Clerical
Senior") performs "generally the same work" at nearby
Mill E as Lamb performs at Mill A; Lamb has helped
Meeks with her work periodically.
For reasons previously given, it seems to me that the
three employees, who are located in the production area,
who work with production employees, and some of
whose work functions are directly integrated into the
production process, are plant clericals within the intend-
ment of prior cases, I would consider them to be unit
employees in September and would count their Decem-
ber ballots.
8. Alice Hensley
Far back in Mill A, near the yarn storage area, Alice
Hensley (a "Clerical Senior"), and the yarn purchaser,
Jimmy Moswer, worked together in the yarn control
office.6 0 Hensley did paper work in connection with the
requisitioning and receipt of yarn. She also typed orders,
reports, and memos for Moswer, sometimes taking short-
hand, and she had phone conversations with sellers of
yarn. She was required to go into the yarn rooms of Mill
A and Mill W, when yarn employees are positioned, to
check cases of yarn, looking elsewhere for them if she
could not locate them there; this was sporadic, some-
times taking 30 minutes a day, sometimes not necessary
for a week. Hensley occasionally worked with knitting
office employees to ascertain the location of warps, or
asked a foreman to do so. She spent 30-60 minutes a day
taking reports to the front office and running copies
there. On occasion, when a loading employee was
absent, she would go to the loading dock to ascertain the
contents of a truck, and would ask the knitting foreman
to assign an employee to unload. She also, periodically,
ran a machine that makes a "stocking," and sometimes
took the stocking to the dyehouse lab for testing. Hens-
ley takes 1 hour for lunch, which she has at home, and
takes no breaks as such.
In view of the close relationship of Hensley to other
production employees, her frequent contact with them as
compared to other kinds of employees, her isolation from
such other employees, and her occasional use of a ma-
chine, I find it difficult to distinguish her from employee
Coia, whose "stock control" functions constituted her a
"plant clerical" in Esten Dyeing & Finishing Co., Inc., 219
NLRB 286, 287 (1975), or employee Bryant, whose simi-
lar duties resulted in a similar finding in Wilson Wholesale
Meat Company, Inc., 209 NLRB 222, 223 (1974). 1 would
o" Her office has since been moved, and air-conditioning units put in
its original place
594
GORI)ONSVILLE INDUSTRIES. INC
therefore include her in the unit in September and count
her December ballot.
In summary, I would include Bolding and the 18 em-
ployees discussed above in the unit for purposes of calcu-
lating the size of the unit in September and October, and
I would open and count all the ballots cast by them in
the December 6 election except the one cast by Hess.
B. The MajoritY Slatus of the ULnion
The General Counsel and the Charging Party rely
upon authorization cards signed by employees to demon-
strate that the Union represented a majority of the em-
ployees in the bargaining unit "at some point" on or
after September 26. While the purpose of the cards is
clear on their face, there was considerable litigation, of
the usual sort, about their validity.fi
The substantive challenge most often made to the va-
lidity of the cards concerned representations made to
signing employees by solicitors as to the use to which
the cards would be put, with Respondent attempting to
show that employees were misled into believing that the
cards would simply be used to secure an election. With
respect to attempts to so discredit cards, the Supreme
Court and the Board have sanctioned a stiff test-a card
will not be invalidated simply because, for some reason,
the employee believed that its only purpose was to
obtain an election; unambiguous cards will be vitiated
only when an employee has been deceived, by words
adequate to the purpose, into thinking that a card is
something less than it purports to be. In NL.R.B. v.
Gissel Packing Co.. supra, 395 U.S. at 606-607, the Court
said:
[W]e think it sufficient to point out that employees
should be bound by the clear language of what they
sign unless that language is deliberately and clearly
canceled by a union adherent with words calculated
to direct the signer to disregard and forget the lan-
guage above his signature.
In so holding, the Court brushed aside the assertedly
invalidating impact of representations, made "jointly or
singly," "(1) that the card would be used to get an elec-
tion (2) that [the employee] had the right to vote either
way, even though he signed the card (3) that the card
would be kept secret and not shown to anybody except
to the Board in order to get an election." 395 U.S. at
584, fn. 5. The second kind of representation would, I
think, lend itself to an especially forceful argument that
the employee might have been substantially misled; to
tell an employee that he had the "right to vote either
way, even though he signed the card," strongly implies
both that there would be an election and that the em-
ployee was making no commitment by signing the card.
The fact that the Court considered this sort of statement
ineffective to nullify a card thus indicates the weight to
be given to the Court's words that the employees
'6 The card reads, "I hereby accept membership in the Amalgamated
Clothing and Textile Workers Union of my own free will and do hereby
designate said Amalgamated Clothing and Textile Union as my repre-
sentalive for the purposes of collectlive bargaining in respect to rates of
pay, wages, hours of employment or other conditions of employment."
"should be bound" by the language of the card unless it
is "deliberately and clearly canceled." 62
The Board has continued to apply a standard that
statements relating to the likelihood of an election are
not incompatible with an underlying belief by the card-
signer that he is authorizing a union to represent him.
Essex Wire Corporation, 188 NLRB 397, 415 (1971) (em-
ployee asked "what it meant if she signed" and was told
"it was so that they could vote on the Union later on.
this was just to bring it to a vote."); Hedstrom Company
u Subsidiary of Brown Group. Inc, 223 NLRB 1409,
1410-11 (1976) (employee told that other employees
"wanted to see if they could get the Union up for a
vote" and "if there was enough of a percentage. then it
would come up for a vote."); Keystone Pretzel Bakery,
Inc., 242 NLRB 492 (union agent said cards would be
used "for the purpose of bringing a federal election into
the plant, and through this process . . . become the bar-
gaining agent"). The courts have generally agreed with
this approach: "But where the cards are, as here, unam-
biguous on their face, the circumstances must show
clearly and convincingly that they were secured through
coercion or misrepresentation before they may be disre-
garded." J. P. Stevens & Company. Inc., Gulistan Division
v. L.R.B., 441 F.2d 514, 523 (5th Cir. 1971).
It seems probable that an unarticulated factor in such
decisions is an appreciation of the solemnity which
would likely attend the signing by an average employee
of a card which makes him, as this one does, a
"member" of a union. 6' Another element to be consid-
ered in judging testimony that an employee was misled
was alluded to by the Supreme Court in Gissel Packing,
395 U.S. at 608: "We also accept the observation that
employees are more likely than not, many months after a
card drive and in response to questions by company
counsel, to give testimony damaging to the union, par-
ticularly where company officials have previously threat-
ened reprisals for union activity in violation of Section
8(a)(1)." That employees might be so inclined is especial-
ly indicated in this case, prompted as the employees
would have been by the June 28 letters from President
Gottlieb regarding their prospective testimony.
Most of the testimony relating to references to an elec-
tion by card solicitors passes the Gissel test. I feel con-
strained to point out, however, that the Union, in my
opinion, was unwittingly responsible for a good deal of
unnecessary litigation and potential deception by origi-
nally referring to the possibility of an election. Thus, or-
ganizer Harold Bock testified that at the first formal
meeting on September 18, he told the assembled employ-
ees that the cards were authorizations and that, when a
majority was secured, the Union would ask the Compa-
ny for recognition; failing the grant of recognition, the
6'I base undertaken the analysis made below with an eye to the
Court's caveat that "trial examiners should not neglect their obligation to
ensure employee free choice by a too easy mechanical application of the
[rule that cards will be counted unless the employee is told that the card
will only be used for the purpose of obtaining an election] "395 U.S at
607-608
"' The testimony of Shirley Winkey bears wianess to this: "Everybody
was talking about it. You couldn't help it. eerybody was wondering
who as going It) sign the card and all "
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union intended to petition for an election. On balance,
the likelihood for confusion arising from even the men-
tion of an election to a group of untrained volunteer so-
licitors, who then repeat these references to other em-
ployees, is so great as to outweigh the informational
value of such an allusion. It is simpler, and sufficient, to
advise would-be solicitors that the card is an authoriza-
tion card, and to let the matter go at that. Plainly, Bock's
attempt to explain the ramifications of the procedures
available for securing recognition caused some confusion
in his core group, which became amplified further down
the line.
Aside from the claim that some employees were told
that the cards had only an election purpose, Respondent
argued other purported defects at the hearing, and refers
fleetingly to some again in its brief. It is asserted, summa-
rily, that 12 identified cards "may be invalid because of
supervisory taint." I agree with the General Counsel and
the Charging Party that Respondent has failed to estab-
lish that any of the solicitors asserted by Respondent at
the hearing to be statutory supervisors actually occupied
that status. Four of the alleged supervisors-James John-
son, Barry Pritchett, Helen Weakley, and Patricia
Suter-attempted to vote in the December 6 election and
were challenged by Board agents, since their names did
not appear on the eligibility list. The Regional Director's
report on objections states, as to these 4, and 35 other,
challenges made by the Board agents, "By letter dated
December 15, 1977, the Petitioner agreed to sustain the
Board Agents' challenges for the purpose of reaching a
determinative election here." The report goes on to say
that the Employer takes the position that 33 of the chal-
lenged voters (including the 4 referred to above) are su-
pervisors within the meaning of the Act, and that since
"neither the Employer nor the Petitioner contend that
the 33 leadmen or foremen enumerated by the Employer
are eligible voters, and there is no evidence that sustain-
ing the challenges to these ballots would be contrary to
the Act," these 33 challenges would be upheld.
Such an administrative disposition of the challenged
ballots does not have any effect on the question, in this
complaint case, of whether the four individuals are su-
pervisors whose solicitation of cards may have invalidat-
ed those designations. Demonstrating that these employ-
ees in fact are supervisory employees was Respondent's
burden, and such evidence as there is on the supervisor
status of the leadmen is insufficient to the task. The
Charging Party's agreement in the representation case to
sustain the Board agents' challenges "for the purpose of
reaching a determinative election" may well have been
reached in the pragmatic belief that a majority of the
challenged group voted against the Union; the agree-
ment, in any event, did not preclude the General Coun-
sel from requiring Respondent to shoulder its normal
burden. 64
e4 At any rate, not many employees had some connection with the
four alleged supervisors in the matter of card-signing. James Johnson,
called by one employee a "supervisor." by others a "foreman," and by
another a "leadman," did not testify. There was little testimony about
Johnson's duties. Emily Winkey, a supervisor, said that Johnson was a
"foreman" in "charge of' the estimated 8-10 people "under him": he
"made sure they knew what their duties were and how to perform their
duties." As she described his work functions, they seemed the essence of
It would be a fearsome and pointless task to analyze
each and every one of the 215 cards admitted in evi-
dence. I shall discuss below only those which appear to
merit discussion. Failure to refer to cards as to which
only one witness testified means that I have accepted
that witness' testimony after considering any suspicious
or unusual circumstances in the testimony of the witness.
Failure to refer to cards as to which two witnesses have
given conflicting testimony means that even if I were to
give credence to the employee proffered for the purpose
of proving a misrepresentation, his or her testimony
would not, under the principles previously cited, cause
invalidation of the card.
On some of the cards, dates were entered by other
persons. These cards bear a stamp of the Board Regional
Office on their reverse sides. Organizer Bock testified
that the cards collected as of September 27 were sent to
the Board on that date, along with the petition for an
election. The Board stamp shows that cards were re-
ceived on September 29. The Board holds that such a
leadman duties. Employee Carl Chandler testified that "Jimmy Johnson"
"gave" him his card, but offered no other testimony about the transac-
tion. Lewis Davis also received his card from Johnson, who said only,
"Here's a union card if you want it." Carl Washington, whose card I am
rejecting for another reason, testified that he received his card from
Johnson after asking him for one; Washington did not work on Johnson's
shift Clarence Sparks, whose card Johnson did not solicit, saw Johnson
at "a couple" of union meetings at which Johnson was silent. The Board
has held that where a "minor supervisor" "passed on" some cards, the
conduct was insufficient to vitiate the cards. Aero Corporatrion, 149 NLRB
1283, 1286 (1964), Engineers & Fabricators, Inc., 156 NLRB 919, 943
(1966). See also N'L.R.B. v WKRG-TV, Inc.. 470 F.2d 1302, 1315 (5th
Cir. 1973), holding that "[so long as nothing in the words, deeds, or at-
mosphere of the alleged solicitation contains the seeds of potential repris-
al. punishment or intimidation, the involvement of the supervisors does
not rise to to the level of supervisory solicitation that we condemned in
[a prior case]."
Barry Pritchett was involved in the solicitation of 3 cards. Lorraine
Cox said that Pritchett, a "leadman," told her that cards were being
passed out, and she obtained one from another employee Pritchett solic-
ited Michael Bell, a longtime friend; Bell did not know what Pritchett's
job was. Aura Anderson got his card from Pritchett, who worked in a
different building and who, so far as Anderson knew, just "ran a ma-
chine "
Patricia Suter was involved in the solicitation of cards from five em-
ployees. Suter, who described herself as a "leadperson and a lace inspec-
tor," gave the following testimony, and no more, as to the nature of her
job: to "guide the people in my department, see that thqwork gets in and
the work now gets out, and everybody is doing their job." There are 7
people in her department. Three of the five employees solicited by Suter
testified that they did not recall whether they knew that Suter was a
leadperson at the time of the solicitation. Suter's description of her duties
does not indicate more than that she belonged to that group of "straw
bosses, leadmen, set-up men, and other minor supervisory employees"
which Congress did not intend to exclude from the Act, N.L.R.B. v. Se-
curity Guard Service, Inc., 384 F.2d 143, 147 (5th Cir 1967), quoting from
S. Rep. No. 105, 80th Cong., Ist Sess. 4 (1947), nor do I detect that she
was viewed by employees as an agent of Respondent whose influence
was considered significant.
Finally, Helen Weakley, who passed out cards to two employees, de-
scribed her job as follows: "I'm a lead warper, I run three machines, I
have three people depending on me each day to advise them what to do
on the job." She told the two employees to whom she handed cards that
"if they liked to, they could sign." As with Suter, there is insufficient in-
dication that the employees could reasonably have felt coerced by Weak-
ley's approach to them.
In sum, the evidence at best shows that the alleged supervisors "direct
to some extent the activities of other employees in their department," au-
thority found insufficient to constitute as supervisors the "working fore-
men" referred to in Davison-Paxon, 180 NLRB 470, 471. fn 4.
596
GORDONSVILLE INDUSTRIES, INC.
stamp, without more, establishes that the card was signed
prior to the date indicated by the stamp. J. P. Stevens &
Co., Inc., Gulistan Division, 179 NLRB 254, 278 (1972). 1
shall, of course, apply that rule in this case. 65
Mary Carter did not date her card (G.C. Exh. 33),
which bears a date of September 19, but the Regional
Office stamp of September 29 indicates that it was signed
before September 29, and, as the General Counsel urges
about a number of such cards, I will count it as such.
For the same reason, I reach the same conclusion as to
the cards executed by Jerry S. Chandler (G.C. Exh. 36),
Michael Mitchell (G.C. Exh. 40 ), Dewey Shifflett (G.C.
Exh. 41), Sylvia Snow (G.C. Exh. 48), Curtis J. Hunt
(G.C. Exh. 65), Wayne B. Bryant (G.C. Exh. 70), David
Douglas (G.C. Exh. 78), Harry B. Riner, Sr. (G.C. Exh.
91), Mary Marshall (G.C. Exh. 93), Burlynn Shipley
(G.C. Exh. 96), Ronald Sacre (G.C. Exh. 101), William
L. Richards (G.C. Exh. 11), Wilson Rollins, Jr. (G.C.
Exh. 125), Vanard Hagins (G.C. Exh. 163), Ronnie W.
Powell (G.C. Exh. 165), A. G. Perkinson (G.C. Exh.
168), Chester L. Lucas, Sr. (G.C. Exh. 169), Jeffrey H.
Estes (G.C. Exh. 183), Wesley Simmons, Jr. (G.C. Exh.
210), Mervil Pritchette (G.C. Exh. 216), and James
Greene (G.C. Exh. 259).
The "principal argument" against the cards, in Re-
spondent's view, is that many of them were authenticat-
ed at the hearing by witnesses other than their signator-
ies. Since there is no question where the Board stands on
the propriety of such authentication, McEwen Manufac-
turing Company and Washington Industries, Inc., 172
NLRB 990, 992 (1968); The Stride Rite Corporation, 228
NLRB 224, 234 (1977), and I am bound by the Board's
position, I need not further consider the argument.
I discuss below a number of cards which appear to
warrant specific consideration.
Della Carter testified that she signed G.C. Exh. 32 on
September 22. The card, which she said she filled out,
states that she worked in "Mill A," but she testified that
she began working in "Mill E" in May 1977, and that
she never worked in Mill A except "during the first and
second week in July, during vacation" of an unidentified
year. The card is filled with erasures, including an obvi-
ous erasure on the signature line, none of which Carter
could explain
Despite mylmpression that Carter was an honest wit-
ness, I am unable to conceive how a Mill E employee
could have written on the card that she worked in Mill
A. In all the given circumstances, I would not count the
card of Della Carter as a conferral of agency authority
in September.
Michael Mitchell gave testimony authenticating nine
cards (G.C. Exhs. 41-49) he had solicited. He testified
that all (with the exception of Steven Robinson) the per-
sons he solicited left him for a short time, and then, on
the same day, returned and handed him signed cards.
Despite Respondent's repeated objection to such testimo-
ny by a solicitor who has not seen the act of signing, the
Board has authorized this kind of authentication.
65 At the hearing, counsel for Respondent. in answer to my question.
seemed to agree that the date stamp was probative of when the Regional
Office received the card, and that "if not rebutted I would have to
rely on it
McEwen Manufacturing Company, supra, 172 NLRB at
992.
It later developed, in Mitchell's testimony and that
given subsequently by his uncle, that in fact his uncle
had authorized Mitchell to fill in and sign a card for
him. 66 There was, in addition, subsequent testimony by
Sylvia Snow that she had gotten Virginia (or Jane or
Jean) Morris to read her card (G.C. Exh. 48) to her be-
cause Snow is illiterate, and authorized Morris to sign it
for her, after which Morris returned the card to Mitch-
ell, who had given it to Snow in the first place. Roger
Snow, Sylvia's husband, testified that he had no dealings
with Mitchell about his card (G.C. Exh. 47): he was
home during that week in September, and "my wife
called me and told me and I told her to get Jean Morris
to sign it."
Although the Snows seemed honest witnesses, their
testimony does not materially detract from the very
strong impression I had that Mitchell was a basically
credible witness. Given that Mitchell, a somewhat limit-
ed man, was testifying about the collection of cards some
10 months before, in circumstances in which "everybody
was all scared and shook up because they thought they
were going to get fired over all this," it does not surprise
me that he might get the details confused.
I think it appropriate to count the cards signed by the
Snows. Sylvia, who could not read, testified that she
"thought [the card] was for the company," and said that
Morris read to her "off the card" that it "was more
money and better benefits." Morris was not called to
rebut this. Roger, who did not see the card, was told by
his wife that "if we wanted more money and better bene-
fits, sign it." He further testified, contradicting his wife's
testimony that she thought it was "for the company,"
that she told him "it was a union card or for a union." I
seriously doubt that Morris read the card to Sylvia Snow
so as to say that the card stated "more money and better
benefits." Roger's testimony discloses that his wife told
him it was "for a union." I would count both cards, Syl-
via's as of some time prior to September 29, and Roger's
as of September 20.
The card signed by Nancy Marks (G.C. Exh. 51) was
accompanied by some very convoluted testimony as to
when she signed it. Although Marks said that she signed
on September 26, the date shown on the card, her testi-
mony in explanation of a contradictory statement given
to the General Counsel leads me to conclude that the
date is unreliable. Since the date stamp on the back of
the card is May 17, 1978, I shall not count it.
The card (G.C. Exh. 72) purportedly signed by Shir-
ley Berry shows that the date of signing (September 20)
was changed and that an erroneous (by two digits) zip
code is entered. Furthermore, I reach quite the opposite
conclusion from the General Counsel's argument, surely
made tongue-in-cheek, that the writing on the card
"closely conform" to a handwriting specimen of Berry's.
I would reject this card.
Doris Berry said that she executed G.C. Exh. 75 on
the date shown, September 20, but she also testified, ac-
'Ithis card was ultimately rejected for reasons that nearly beggar de-
scriplion. at least in a footnote
597
DECISIONS OF NATIONAL ABOR REI.ATIONS BOARD
cording to the transcript, which may be in error, or
which she may have intended to clarify by her answer to
the next question, that she did not "work there last Sep-
tember." The symbol for the month shown on the card
appears as a "9" scratched over what looks like a "2."
The first name was written over an erasure; Berry testi-
fied that this happened because she "misspelled" her
name and started over. The card carries a Regional date
stamp of September 29. Respondent expressed "no objec-
tion" to the card.
Despite these curious details, I am inclined to believe
Berry's testimony. I think it obvious that she did work
for Respondent in September; she said she "never
know[s] dates;" and I too have had difficulty with scrib-
bling the initial letters of my name on occasion. Berry
was an extremely believable young woman. I would
count the card.
Carlton Dickerson, who cannot read or write, signed a
card (G.C. Exh. 94) filled out for him by his brother.
The difficulty I have here is timeliness- the card is
dated "9-28" and the rear date stamp is May 17, 1978 (it
would appear from this and some other cards that after
sending in the first batch of cards in support of the elec-
tion petition which reached the Regional Office on Sep-
tember 29, the Union sent no more cards until May
1978). It does appear, however, that all the entries were
made at the same time and by the same pen, and I would
indulge a presumption that the date shown is accurate.
Cato Show Printing Co., Inc., 219 NLRB 739, 756 (1975)
(Cory).
Harry B. Riner, Jr., signed General Counsel's Exhibit
98 on September 22. Among other things, Riner testified
that union organizer Bock said at a meeting that "the
only thing it was to do was to petition the National
Labor Relations Board for the vote," although he subse-
quently agreed that it was "possible" that Bock also said
that the purpose of the cards was to have the Union rep-
resent employees. It later developed in Riner's testimony
that he had not heard Bock speak until after he signed
the card, that the person who solicited his signature had
said "it was, more than anything else, to petition the Na-
tional Labor Relations Board about whether or not to
have a union," and that Riner "skimmed" the card "half
way" before signing it. Riner Jr. attended union meet-
ings, passed out cards, and distributed leaflets. He
became a "supervisor" on January 1. His nervous demea-
nor, and the foregoing circumstances, lead me to believe
that he misrepresented Bock's speech, although that issue
is of no consequence in any event, since Riner did not
hear Bock speak until he had signed the card. I consider
the card to be valid. Similarly, I think that John R. Col-
lins, testifying with respect to General Counsel's Exhibit
104, as discussed infra, mischaracterized Bock as saying
that they "have to have an election before we could
have a union." I am convinced that Bock would have
made no such positive statement, although it certainly
appears that Collins thought he had.
Gregory G. Cooper testified that he executed General
Counsel's Exhibit 112 at the instance of employee Curtis
Pritchett on the street outside of his roominghouse.
While Cooper did not fill in the date of September 20, he
saw Pritchett do so.
Cooper's testimony is in serious conflict with material
contained in a May 11, 1978, affidavit given by Nancy
McDaniel concerning her union activities. In that affida-
vit, McDaniel states that, on September 20, she and her
husband met in the Tastee Freez parking lot with James
Johnson and several other employees Johnson had
brought with him. Gregory Cooper was also there; about
this, McDaniel had a clear recall. Although she first
states that she saw Cooper sign a card that night, she
later modifies this recollection: "I don't recall actually
seeing Cooper put his signature on his card, but he got a
card, we told him to read it, make sure to sign it, not
print it, and date it, there were so many people there, I
don't recall the exact details but I recall seeing him lean-
ing on the hood of a car with a pen in his hand and a
card. He gave the card to either me or James, 6 7 and I
initialed it before I left the parking lot." General Coun-
sel's Exhibit 112 bears the initials "N.M."
Although McDaniel was not questioned about this
portion of her affidavit, I can hardly ignore it. That
there was only one "Gregory Cooper" in Respondent's
employ at the time is attested to by General Counsel's
Exhibit 287, a stipulated list of employees.
I believe that Cooper lied about signing the card at the
behest of Pritchett and that, instead, he signed in the
Tastee Freez parking lot. This makes his authorization
no less valid, however, unless the argument of supervi-
sory taint by the presence of James Johnson is accepted.
Because, as earlier stated, there has been no substantiated
proof of the supervisory status of Johnson, I would not
accept the contention.
Michael A. Bell testified that Barry Pritchett, alleged
by Respondent to be a supervisor, solicited General
Counsel's Exhibit 117 on September 19. Bell's testimony
that he did not know Pritchett's job title or work func-
tion, other than that he "runs a machine" despite their
friendship of 15 years and the fact that they see each
other once a day, seemed incredible, although Bell was
an extremely believable witness. 68 Nonetheless, the ab-
sence of any substantive proof of Pritchett's supervisory
status moots that issue.
The card signed by Dwight Ferrell (G.C. Exh. 124) is
dated October 25, and therefore cannot Ye counted,
under the General Counsel's self-imposef limitations
period expiring October 16. 69
A card signed by Rebecca C. Rogoll, in evidence as
General Counsel's Exhibit 170, has been withdrawn by
the General Counsel on brief.
William Figgins authenticated 23 cards at the hearing,
the largest number of any single solicitor. Despite the ef-
forts of counsel for Respondent to shake Figgins' credi-
bility, I remained persuaded that Figgins was one of the
7' This could be James Johnson, but it is more likely her husband In
the affidavit. McDaniel occasionally refers to both ofr them as "James."'
'" I note, however, that Peggy Taylor, a good witness, had no idea
whether or not her olwn mother was a leadperson: "She's just my
mother" This my be some evidence of the malaise purporiedly aflicting
the Aork place.
9 Perhaps a happy circumstance for the General Counsel. Ferrell's
printed signature on the card appears "Ferrelle:" when asked about the
superfluous final "e." Ferrell testified. "I must have been in a hurry when
I signed it "
598
GORDONSVILLE INDUSTRIES. INC.
exceptionally impressive witnesses at the hearing. Very
often, one finds witnesses credible because there is no
particular reason for disbelieving them. Occasionally,
however, a witness will convey a strong impression that
they are being honest; Figgins was one of the latter. Mis-
takes about the details of solicitation made by Figgins in
a May 1978 affidavit to the Board were the kind anyone
might make in describing two dozen acts of similar
nature engaged in over a period of a few days some 8
months before the affidavit was given; at the hearing,
Figgins noted that, after realizing the mistakes, he him-
self had brought them to the attention of the General
Counsel prior to the hearing. The errors were of the pe-
ripheral sort that a less conscientious person, interested
only in consistency, might have ignored.
Figgins testified that, as a rule, he solicited signatures
by asking other employees if they would like to be repre-
sented by the Union, after which he would ask them to
read the card. Respondent produced five card-signers
whose cards Figgins had authenticated. Beatrice Bibb,
saying it was "hard to remember exact words," testified
that Figgins told her "[i]f we got enough cards signed,
we would have an election and we would have a vote."
However, she read the card before she signed it, and she
subsequently testified that Figgins "probably" said that
"they were trying to get the company to recognize the
union."' Vanard Hagins said Figgins "told me that they
were trying to get a union in, trying to get as many
cards signed as they could so that they could get an elec-
tion, and see about getting a union." He also asked Fig-
gins, after reading the card, if it meant that "we be-
longed to the union because that's what the card said,"
and Figgins replied that "right now it wasn't, it was to
get an election and for charter members and if the union
didn't come in, then we wouldn't be involved one way
or the other." Maybelle Watson testified that she re-
ceived her card from Figgins and Thurmond Dickerson,
and that Dickerson had, an hour earlier, said to her,
"they wanted to see if they had enough signatures to
have a vote." She denied that Figgins asked if she
"wanted to be represented by a union." Rebecca Rogoll
testified that Figgins asked her if she would be interested
in signing a card "to determine if there were enough sig-
natures to contact a labor representative," telling her that
the card "was not a binding contract."
In his initial appearance, Figgins was not asked to
detail his conversations with the employees he solicited,
although there surely must have been some. Figgins ap-
peared in rebuttal only to explain why he had not re-
turned Rogoll's card upon request, as she had testified.
While it is likely that, in the course of conversation with
solicited employees, Figgins might have referred to the
possibility of an election, which he did not disclaim at
the hearing, it seems most probable that, as he testified,
he also told the employees that the purpose of the card
was to secure recognition. Thus, Iris Cowherd, called by
Respondent to recount what a purported supervisor had
told her about signing,7i also testified, on cross-examina-
tion, that Figgins told her "the card was to represent the
:' I note that ihh srigncd an attendance l ht at the Septemb r 25 unionll
meeting
71 I find nothing coercile ilt the testimony of Cov,,herd lon this, core
union, to get the union in for better benefits." I am in-
clined to accept Figgins' testimony, as corroborated by
Cowherd, that he told employees that the cards were de-
signed to secure recognition; any references to an elec-
tion, such as those described above, would not have viti-
ated both the cards and Figgins' affirmative representa-
tions under the applicable precedents.
William Maxton authenticated General Counsel's
Counsel's Exhibit 171 as his card. Two signature and
writing samples in evidence disclose significant dissimi-
larities between those samples and Maxton's card. While
he testified that he signed the card on a machine which
was vibrating, I do not believe that explanation can ac-
count for the marked differences; I call the reader's at-
tention to the word "Knitting," the letters "W" and "m"
in the word "William," and the "x" in the word
"Maxton." I would not count Maxton's card.
The General Counsel, on brief, withdraws reliance on
General Counsel's Exhibit 172, signed by Robert Trice,
because it was not executed until November 4, subse-
quent to the self-imposed cutoff date, and takes a similar
position as to General Counsel's Exhibit 178, signed by
Frankie Williams some time after October 16.
I would not count as material the card (G.C. Exh. 176)
executed by Carl Washington. The card bears a date of
October 7 Washington did not fill in that date, and
while he thought he signed the card "in October," he
did not know whether it was early or late in the month.
I do not think the proof establishes that Washington
signed prior to the October 16 cutoff date.
Everett J. Cromer (G.C. Exh. 189) and Ernest Ellis
(G.C. Exh. 190) signed cards for James McDaniel in the
Tastee Freez parking lot. Ernest's father, George Ellis,
described by McDaniel as a "foreman," had come with
his son. McDaniel testified that he arranged independent-
ly with Cromer to meet there; although McDaniel also
said that George Ellis had told him that "he would bring
some of his men down to sign cards," the only one he
brought was his son Ernest. Since Cromer confirmed
that he and McDaniel had agreed to meet at the lot,
there could have been no influence on Cromer by the al-
leged supervisor George Ellis, whose authority is undis-
closed by the record, nor on the younger Ellis, for the
latter reason.
A clash developed between James McDaniel and
Luther Perkins (G.C. Exh. 191) as to whether Perkins
signed his card at home or in the machine shop, and
whether he signed immediately or waited a few days.
Regardless of that issue, there can be no doubt, in view
of the fact that Perkins says that he "thought about"
signing for a "couple of days," that he fully intended to
authorize the Union to represent him.
James McDaniel authenticated a card signed by Rich-
ard Cooper (G.C. Exh. 197). The card is dated October
3, but McDaniel did not recognize the writing of the
date as his, nor did he know who filled in the date. 72 He
recalled that he passed out this card after the "other ones
[he] testified to" but, asked "how much after," at first
said "I don't remember." While he did not "believe" it
Ihe riting is clearl flot in Cooper's hand
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have been as much as 2 months, "I don't remem-
ber just exactly how long it was. It was possibly a week
to two weeks, I don't know." In this context, and since
the date stamp on the card is May 1978, 1 am not per-
suaded that the card was signed by the cutoff date of
October 16, and will not rely on it.
After numerous unsuccessful attempts to subpena cer-
tain witnesses, the General Counsel offered in evidence
seven cards along with copies of W-4 forms executed by
six of the employees. 7 This method of authentication
has been approved by the Board, G. P. Putnam's Sons.
Inc., et al., 226 NLRB 1256, 1268 (1976).
The signature on General Counsel's Exhibit 254 ap-
pears to be identical to the signature on the W-4 form
executed by Raymond L. Miller. The date shown on the
card, September 30, was obviously executed by the same
hand. In Cato Show Printing Co., Inc., supra, 219 NLRB
at 756, the Board affirmed a holding that, in such cir-
cumstances, the card was "presumably signed on the
date affixed to the card." I shall therefore count Miller's
card as of September 30.
Other than the "J" in the first name, the writing on
the card marked as General Counsel's Exhibit 255, pur-
portedly signed by James P. Franck, is strikingly similar
to the specimen, including such characteristics as the
slant of the writing and the numerals. Because my expe-
rience is that people do alter the style of their signatures
on occasion, I shall include Franck's card as of Septem-
ber 21.
General Counsel's Exhibit 256, dated September 23,
bears the name of John Ellsworth. Ellsworth was termi-
nated on September 30, and his personnel file could not
be located. The General Counsel relies on Rene's, Inc.,
202 NLRB 580, 583 (1973), where the Administrative
Law Judge counted an unauthenticated card on the fol-
lowing reasoning: "Since the card was in the possession
of the [Union] and no evidence that either the signature
or the date was not authentic was offered, I think a
prima facie case of validity has been established . . . ."
In the present case, however, since Ellsworth's personnel
file was lost and since the General Counsel unsuccessful-
ly served three subpenas on Ellsworth, I do not see how
Respondent could have established the lack of authentic-
ity of Ellsworth's signature without going to a good deal
of trouble, such as searching city records, of the kind
which the General Counsel did not choose to incur. I
reject the card.
The card for Kenny Eppard (G.C. Exh. 257) is suffi-
ciently different from the W-4 form, both in signature
style, numerals, and address (the W-4, dated August 5,
1977, gives the home address as "Quinque, Va."; the
card, dated September 20, "Slandersville, Va."), as to
lead me to reject it as unreliable.
The distinctive signature of Ernest Collins on his W-4
form is replicated on General Counsel's Exhibit 258. 1
will include Collins' card as of the card date of Septem-
ber 23.
The card for James Greene (G.C. Exh. 259) bears a
script signature totally unlike the printed signature on
the proffered W-4 form. However, in the body of the
73 Respondent later produced an employes who had signed one of the
cards, so the discussion hereafter concerns only the remaining six cards
W-4 form, where the employee is instructed to "Type or
print your full name," the name James Greene appears,
defiantly, in script writing which is identical to the signa-
ture on the card. I shall count the card. Since, however,
the card date of September 21 was plainly written by an-
other person, I shall consider that the card was signed
some time before September 29, the date stamp on the
reverse side.
Several witnesses testified that they did not, or could
not, read the cards which they signed. Failure or inabil-
ity to read raises interesting questions. While, under
Gissel Packing a representation that "the card is to get an
election" is not considered to invalidate the card for the
reason that the signer is deemed to have understood its
broader purposes from having read it, that presumption
is necessarily removed when the signer credibly testifies
that he did not read it. Where he has not read the card,
it may be argued that the statement "the card is to get an
election" is fatal, since it would present the only purpose
communicated to the nonreading signer. Additional legal
distinctions might be drawn between literate nonreaders
and illiterate ones (and perhaps between situations in
which the solicitor is aware of a literacy problem and
those in which he is not).
Some cases indicate that where an employee has not
read a card, the recitation to him of a single purpose
constitutes a misleading representation of the whole of
the card's purposes. Thus, in Jas. H. Matthews & Co., 149
NLRB 161, 162 (1964), the Board discounted a card be-
cause the employee was "unable to read and he signed
his card only because union adherents soliciting him,
who did not read the card to him, told him that the pur-
pose of the card was to bring about an election."
"[S]igned his card only because," it should be noted, im-
plies a finding of causality. In Trend Mills, Inc., 154
NLRB 143, 144 (1965), cards were held unreliable where
the employees "did not read the cards, and authorized
other employees to sign on their behalf after being told
merely that the cards would be used to secure an elec-
tion in the plant." Here, no causality is suggested; the
representation seems to have been sufficient to invalidate.
Trend Mills was applied in Yazoo Valley Electric Power
Association, 163 NLRB 777, 783 (1967), to the card of an
employee who could read "a little," but did not read the
card he signed after having been told it "was for to get
an election." The Trial Examiner ruled out the card,
finding no evidence that the employee knew that it
"might also constitute a designation of the Union as his
bargaining representative." On the other hand, in Fabri-
cators, Incorporated, 168 NLRB 140, 145, the Trial Exam-
iner held an employee (Knaus) to his card, despite his
testimony that he did not read the card and was told that
its purpose was to "receive information on the union";
the Trial Examiner felt that to conclude that an employ-
ee did not apprehend the effect of his act would be
"either to downgrade his apparent intelligence or to
charge him with irresponsibility." The same view was
taken by the Trial Examiner in Essex Wire Corporation,
188 NLRB 397, 413-414.
Perhaps the soundest approach, in the light of this
somewhat conflicting authority, is the broad one of judg-
600
GORDONSVILLE INDUSTRIES, INC.
ing the reliability of the cards "in the light of all the cir-
cumstances surrounding their signing," Lorraine Urbauer
d/b/a Kimmel's Shop Rite, 213 NLRB 440, 447 (1977), to
determine whether the purpose of the cards was "ade-
quately communicated," Ruby Concrete Company. 213
NLRB 724, 727 (1974). Thus, the Trial Examiner in Cen-
tral Soya of Canton, Inc., 180 NLRB 546, 561-562 (1965),
pointed out circumstances which made it clear that, de-
spite their having failed to read the cards, the employees
intended to authorize the union to represent them. That
is the approach I shall use in the present case.
Ernest A. Lettner, who signed General Counsel's Ex-
hibit 29 on September 20, testified that he did not read
the card before he signed it. He also said that the person
to whom he returned the card said that "the purpose of
the card was to see if there were enough people interest-
ed in the union to hold meetings"; he then amplified this
statement to "[t]o see if there is enough people interested
in the union where they could hold meetings and have
the election." Lettner did not, however, attribute any
such explanation to the individual who gave him the
card. Since Lettner signed what he certainly knew to be
a "union card" with all that might entail, without any
representations by the solicitor, it seems fair to regard
such an act as a full-fledged authorization.
Lorrox (G.C. Exh. 49) testified that she told another
employee to sign a card for her after being asked by
leadman Pritchett "how would I like the union to come
in . . . maybe for more money and better benefits." She
could not "remember whether [she] really" saw the card
or not. I think the circumstances indicate that Cox in-
tended to "vote" for the Union.
Elizabeth Mitchell, who did not read General Coun-
sel's Exhibit 53, was told "it was to represent the union.
I would be represented by a union and there would be
an election held." Since it was communicated to Mitchell
that she would be "represented by a union," the subse-
quent reference to an election would not seem to vitiate
her understanding that she would be so "represented."
Harry B. Riner, Sr., signed General Counsel's Exhibit
91, but did not read it. Initially, Riner said that the card
was signed "to have somebody represent us in the
union," and later "to see if we could get enough mem-
bers to have a union to represent us," and still later "to
get somebody to epresent us in a "union." While he re-
ferred on cross to an election, he soon reverted to "them
saying something for somebody to represent us, and the
card that I was signing was to see whether or not
enough people wanted to get one in." Since Riner Sr.
had previously belonged to a union and specifically
stopped at the home of another employee to pick up his
card, I conclude, given all the circumstances, that the
card should be counted.
The cards solicited by John R. Collins give rise to dif-
ficulties. Thus, Collins, although I think erroneously, tes-
tified that organizer Bock said at the September 18 meet-
ing that the card was "for the union and also for an elec-
tion, you know." While the "purpose was to get a union
organized," we "have to have an election before we
could have a union." His pretrial affidavit had the union
organizers telling the assembled employees on September
18 that the cards "were for the union, and to get the
union in. They said they would like to have 51 percent
of the people in the plant or a majority sign these cards
before we could have an election for the union." It
seems evident that Collins' ambivalent state of mind
about the purpose of the cards could have caused him,
depending on the circumstances, to refer only to an elec-
tion objective in making subsequent solicitations.
Collins testified that he told David Lamb (GC. Exh.
105) that the purpose of the card was "to get a union in
the plant." Lamb, who can read "a little bit" but did not
read the card, said Collins told him "[i]t was to get
enough cards signed to have an election." A pretrial
questionnaire filled out by Lamb, however, indicates that
Lamb was told that the card was both for an election
and to authorize the Union to represent him, and that he
was not told it was only for an election. Lamb further
confirmed Collins' testimony that Lamb had told him he
thought there should be a "change" at the plant. I would
consider the card valid.
Collins testified that he told Jackson Lamb (G.C. Exh.
106), who cannot read or write, that the card "was for a
union, and I would also like to have 51 percent to sign
up to have an election." Lamb replied that "he would
like to go along with getting a union in at the plant," and
placed his X on the card. Jackson Lamb did not testify.
Since he was told that the card "was for a union," I
would think it should be counted.
Wilson L. Rollins, Jr., signed General Counsel's Ex-
hibit 125 at the behest of Mopey Williams, who first
asked "would I like to have more money," and then told
him that the card "means for a union to come in, maybe
to get an election if we get enough signatures, and then
you could join it later after it come in." Rollins did not
read the card. Since Rollins was told that the card
"means for a union to come in," I find that its purpose
was sufficiently communicated to him
Peggy Taylor testified that she signed General Coun-
sel's Exhibit 177. At first, she said that she did not read
the card "before [she] signed," but later, asked if she had
signed as a favor to the solicitor, testified, "No, not
really, I knew what it was, but then I did read the card."
The second quoted passage seems to indicate that Taylor
read the card immediately after she signed it. Taylor did
not recall anyone saying anything to her about the card.
Taylor thought that either her mother, Mary Morris, a
leadperson, or leadperson Pat Suter gave her the card.
Suter testified that she "think[s]" she gave Taylor the
card, saying it "was to represent a union to come into
the plant and have a vote," and Morris recalled Suter
asking "if we would sign a card to have the Union repre-
sent a vote." The notion of representation conveyed by
Suter would probably be sufficient to validate the card,
even in the absence of Taylor's apparently concurrent
reading of the card before turning it in.
Robert Smallwood testified that James McDaniel gave
him General Counsel's Exhibit 188, saying it was "to see
if we could have enough votes to get a union in, to see
about getting one in." An honest but clearly uncertain
witness, Smallwood also said that he did not read the
card. Subsequently, he attributed to McDaniel the
remark that they "[h]ad to get so many together before
O01
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you have the Labor Board to come in to have a vote or
something." On rebuttal, McDaniel testified that he told
Smallwood, as he told others, that "we were working to
get a union in the plant to represent us . . . and we
needed enough personnel to have an election to get the
Union in to represent us and once we had enough people
to get the election, then we would petition the Labor
Board for the election. Then, after that, we needed 51
percent of the people to vote."
Perhaps the line between this case and the preceding
ones is imprecise, but it seems to me that the thrust of
McDaniel's own testimony is that he held out a firm
commitment of an election as the end result of signing a
card. Since Smallwood did not read the card, this would
be the only result of which he would be aware. It is un-
likely that his signature can be considered a clearcut au-
thorization of the Union, and I would reject it.
As previously discussed, McDaniel also solicited a
card from Everett J. Cromer (G.C. Exh. 189), telling
him, according to McDaniel, the same sort of thing he
told Smallwood. Cromer testified that he read the card
"[t]he best I could with the flashlight, but not very
much." 74 Cromer also at first testified that he remem-
bered merely signing the card but, confronted with the
card, agreed that all of the identifying information aside
from the date was filled out by him.
Cromer had been a union member 35 years before. I
tend to believe that, even reading the card "not very
much," he would have been aware of the printed pur-
pose of the card; it does not take "very much" reading
to accomplish that. 75
James Lam, who signed General Counsel's Exhibit
253, testified that a fellow employee "asked me would I
sign a union card, a little blue card, to let the union
come for a vote, so they could have an election." He
filled in the card completely, but said that he did not
read any of it other than the part designed for identifica-
tion matter.
Lam signed hastily: "The knitting foreman was coming
up the aisle so I had to give him the card back." Lam
seemed an honest witness, and I am inclined to believe
that he did not read the card. Although he had previous-
ly belonged to a Carpenter's local, his complete disavow-
al of having read the card, and the total absence of evi-
dence that any purpose was communicated to him other
than the solicitor's request to "let the union come for a
vote, so they could have an election," indicates that the
card should be rejected, under the holding in Trend
Mills, supra.
A stipulation in evidence (G.C. Exh. 288, page marked
September 30) shows that David Gallihugh terminated
on September 29; his card (G.C. Exh. 27) would termi-
nate with him on that date.
Of the 215 cards in evidence, I have found above that
14 of them should not be counted, 5 for the reason that
" The signing occurred at night in a parking lot.
- I need not discuss the other cards passed out by McDaniel, since
there is no evidence that the remaining employees solicited by him did
not read the cards. I note that although McDaniel testified that he "told
all of the employeesl pretty much the same thing" as he told Cromer.
Luther Perkins (GC. Exh. 191), a witness for Respondent, testified that
McDaniel's solicitation consisted only of "just ask[ing] what I thought
about the union."
they appear to have been executed after October 16. On
September 26, 1977, there were 333 eligible employees in
the bargaining unit (including the 18 challenged employ-
ees here found entitled to vote). Without counting those
22 cards which bear various September dates but which,
I have found above, should only be considered as having
been signed some time before September 29, the date of
the Regional Office stamp, the Union had secured by this
time 165 valid cards, just short of a requisite majority of
167. 7fi
As of September 27, however, when the unit (includ-
ing the 18 challenges) had dropped to 331 as a result of
terminations, the Union had obtained 5 more valid cards.
It thus broke through to majority status (170 cards in a
unit of 331) as of that date. While it is possible that a
number of the 22 cards referred to above as not being
subject to precise dating before September 29 were in
fact signed on dates which would have given the Union
a majority prior to September 27, on this analysis the
first clear majority status was gained on September 27.
By September 30, there were 327 employees in the
unit, and there were 199 valid cards, including the 22
previously mentioned and excluding the card of Galli-
hugh. Since, in the unit as composed on September 30,
the Union required 164 valid cards for majority status, it
surpassed that requirement by a margin of 35 cards. By
October 3, when the unit consisted of 326 employees, the
Union had a total of 201 valid cards, or a 37-card excess
over a majority.
Thus, the Union, "at some [material] point," Gissel
Packing Company, supra, had obtained a clear majority of
valid authorizations. It may be that there is a margin of
error in my appraisal of the legitimacy of the cards; but
even if I am wrong by as many as some 3 dozen cards,
which seems unlikely, the Union would still have at-
tained majority standing at an appropriate point.
C. The Propriety of a Bargaining Order Remedy
In the December 6, 1977, election, the tally of ballots
indicated that the Union had won by I vote, 144-143.
That count did not, of course, include the votes of the 18
employees which, I find, were entitled to be tallied.
Since the Union opposes the counting of 17 of these bal-
lots, it would not be rampant speculation to suppose that,
when they are opened and counted, the Union's tentative
victory will turn into defeat.
By October 3, according to my calculations, the Union
had secured 201 signed indications of majority support,
representing about 61 percent of the complement. After
the votes are finally counted in the December 6 election,
however it may well be that the Union secured no more
than 47 percent of the votes in that poll.
What would account for the substantial loss of support
for the Union? One factor could be a turnover in person-
76 The General Counsel's useful Appendix 11 to his brief contains a
number of minor errors, such as placing Susan Carter's card as a Septem-
ber 29 designation instead of the correct date of September 21, and indi-
cating that Gregory Ellis' card was signed on October 6 rather than Sep-
tember 27. I have appended hereto as Appendix A m own edition of
that chronological listing of cards, incorporating the foregoing findings
and making other minor changes in placement [Appendix A has been
omitted from publication.]
602
GORDONSVILILE INDUSTRIES, INC.
nel; there is no evidence on that score, but one might
suppose that new employees would support the Union in
roughly the same ratio as those who departed. Another
factor, which Respondent would surely urge, is the per-
suasive effect of its preelection campaign. The General
Counsel and the Charging Party argue that the decrease
in support was likely due to the unfair labor practices
committed by Respondent beginning on September 26.
They further argue that those violations, as compounded
by the June 1978 wage increase, were of sufficient grav-
ity to taint any election held after December 1977, and
that, instead of ordering a new election now (or, after
appeal, perhaps 2 or 3 years from now), it would be ap-
propriate to order Respondent to bargain with the
Union.
In Gissel Packing Company, supra, 395 U.S. at 614-615,
the Court approved the practice of issuing such remedial
bargaining orders, upon a showing that at one time the
union attained majority strength and a determination by
the Board that "the possibility of erasing the effects of
past practices and of ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though present,
is slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order." Whether Respondent past unfair
practices are subject to neutralization by traditional re-
mediation is a matter of some doubt.
I have found above that soon after the inception of the
union efforts, Respondent reacted by instituting a survey
of employee attitudes which amounted to a promise to
rectify grievances and thus erode employee support for
the union, and that it thereafter delivered on its promise,
not only by moving supervisors around, but also by
giving magnanimous wage increases in December 1977
and again in June 1978. Along these same lines, Re-
spondent also dramatically emphasized its role as the
source of all benefits by declaring to employees, on the
eve of the December 6 election, the existence of a profit-
sharing plan which was both tenuous and completely un-
known to the employees.
These unfair labor practices had general application to
all employees. Based on precedent, the wage increases
alone would be sufficient predicate for a bargaining
order, the Board holding that "[i]t is difficult to conceive
of conduct more likely to convince employees that, with
an important part of what they were seeking in hand,
union representation might no longer be needed." Tower
Enterprises, Inc., 182 NLRB 382, 387 (1970). Accord:
Skaggs Drug Centers, Inc., 197 NLRB 1240 (1972); Hono-
lulu Sporting Goods Co,. Ltd., 239 NLRB 1277 (1979). It
seems clear that this group of unfair practices would im-
press the Board as being beyond the curative powers of
customary notice-posting, especially since the unlawful
effects of the increases "cannot easily be erased, for the
benefit remains in effect," Red Barn System, Inc., 224
NLRB 1586 (1976). As to the two postelection grants of
benefits, moreover, one of them given only shortly
before this hearing began, the words of the Board in
Tipton Electric Company, and Professional Furniturc Com-
pany, 242 NLRB 202, 203 (1979), are apposite:
Here, the Respondents' postelection grant of bene-
fits rewarded employees for rejecting a union which
the Respondent had earlier portrayed as a divisive
force which would destroy harmonious working
reationships. It is a calculated application of the
carrot and the stick to condition employee response
to any union organizing effort and affords the Re-
spondents an unlawfully acquired advantage in
regard to a rerun election which cannot be cured
by simply ordering them to mend their ways in the
future and post a notice.
The other unlawful acts earlier found would, I believe,
tend to have a lingering coercive impact on the decision
by employees whether to opt for the Union: the Septem-
ber 26 threat to Nancy McDaniel of withholding direct
relationships with employees in the event of a union vic-
tory; the restriction of Bolding and McDaniel in Octo-
ber; the threats to Baugher on October 22 that union
leaders and Baugher would be eliminated; the threat of a
plant shutdown, of employees being fired, of her hus-
band's job being in jeopardy, of an anticipatory refusal to
bargain, and the promise of benefits, made to Betty Fig-
gins in October and November; the threat of discharge
to himself and others, and the threat of blacklisting,
made to William Figgins on October 17, and the unlaw-
ful harrassment of Figgins prior to the election; the im-
proper promises of benefit made to Dillon in November
by Gehring and Gottlieb; and, of course, the wrongful
discharge of Bolding, a premier union activist, in No-
vember.
In the Board's view, coercive statements take on a life
of their own, in that they are apt to be repeated to other
employees by the ones who hear them. General Stencils,
Inc., 195 NLRB 1109, 1110 (1972), and cases cited at fn.
5. More concrete, however, is the fact that, as a result of
this proceeding, which presumably will receive consider-
able publicity at the plant, it has been and will be
brought home, not only to 1977 employees but also to
1979 ones, that Respondent's agents manifested a willing-
ness to violate the law in order to keep the Union out. 77
That knowledge would tend both to dampen the enthusi-
asm of employees for the Union in the polling booth and
to inhibit prudent employees from participating in the
important work of preelection proselytizing for the
Union. The abrupt disappearance of Bolding, a notable
union adherent, from the payroll a month before the
election has likely had a seriously sobering effect upon
the employees; the potential of his reinstatement to work
several years thereafter would not be a very consoling
prospect to employees pondering whether to involve
themselves in a renewed effort to elect the Union.
The circumstances lead me to believe that a bargaining
order would be appropriate here. The Union amassed a
most respectable showing in the December 1977 election,
but it seems fair to attribute, at least in part, the loss of
card support, which would have made the difference, to
the unfair labor practices committed. The two general
7' I seems proper to hold Respondent accountable for the reputation
it will garner among the employees from this legal proceeding as a fre.
seeable consequence of its unlawful conduct
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases given after the election may well have
chilled any chance for the Union to maintain even the
support it rallied at the 1977 polling. While the notion of
holding a rerun election trips easily off the tongue, it
should be recognized that the Union and its adherents
committed 2-1/2 months of time and effort to the 1977
election and would now have to undertake a repetition
of both those labors and the expense involved. In view
of the number of cards collected by the Union in 1977, it
is a sound inference that if Respondent had conducted a
lawful campaign, the Union might well today be the cer-
tified representative of the employees.
The combination of a strong showing of employee
desire for union representation and the probable enduring
effects of the unfair practices indicates that "perhaps the
only fair way to effectuate employee rights is to reestab-
lish the conditions as they existed before the employer's
unlawful campaign." Gissel Packing Company at 612. The
remedy is a meaningful, but not harsh, one: "There is,
after all, nothing permanent in a bargaining order, and if,
after the effects of the employer's acts have worn off,
the employees clearly desire to disavow the union, they
can do so by filing a representation petition." Id. at 613.
D. The Election Issues
As stated above, I conclude that the ballots of the 18
employees previously discussed should be opened and
counted.
The Regional Director has also referred to me for de-
termination Petitioner's Objections 3 and 4 to conduct
assertedly affecting the December 1977 election. Since I
have concluded that Respondent violated the Act by
conduct alleged in the objections,7 9 and since conduct
violative of the Act is, a fortiori, conduct which inter-
feres with the exercise of free choice in an election, Dal-
Tex Optical Company, 137 NLRB 1782, 1786-87 (1962), I
shall recommend that, assuming the opening of the bal-
lots do not determine the election in the Union's favor,
the election be set aside.
CONCLUSIONS OF LAW
I. Respondent, Gordonsville Industries, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
17 While it relates to no specific complaint allegation, I have consid-
ered as background the preelection literature distributed by Respondent.
Some of it is pretty strong stuff, particularly a November 16 letter, at-
taching "a list of Virginia firms that have closed their doors .... They
are out-of-business for one reason or another. Each firm listed was union-
ized, some you know about already such as Virginia ertal Products where
450 jobs were lost, or Clarostat where 180 jobs were lost. There are other
firms listed that you should be equally interested in because they had the
same union that is trying to get in here. Your decision on how you will
vote in this election is extremely important: We encourage you to vote
'NO' and help us defeat this union." The attached list of 40 closed union
firms is headlined "The Union Can't Guarantee The Most Important
Thing You Have-Your Job." Because a job usually is "the most impor-
tant thing" an employee has, particularly in small towns, this kind of
reckless and undiscriminating association of unions and defunct businesses
can often convey a most serious message to employees.
79 I do not find, however, as claimed in the objections, that Respond-
ent wrongfully discharged Nancy McDaniel
2. Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Stephen Bolding on November 8,
1977, Respondent violated Section 8(a)(3) and (1) of the
Act.
4. By, in September, October, November, and Decem-
ber, 1977, and June 1978, conducting a survey, and, in
other ways, expressly and impliedly promising to rectify
employee grievances and to grant benefits; threatening
employees with loss of benefits, loss of jobs, blacklisting,
plant closure, and a refusal to bargain in the event of a
union election victory; restricting and harrassing employ-
ees; interfering with Board processes by attempting to in-
fluence the testimony of employees in Board proceed-
ings; granting wage increases; and announcing the exist-
ence of a profit-sharing plan, Respondent violated Sec-
tion 8(a)(1) of the Act.
5. The appropriate unit for collective bargaining is:
All production and maintenance employees em-
ployed by Respondent at its Gordonsville, Virginia,
location, but excluding office clerical employees,
guards, professional employees, and supervisors as
defined in the Act.
6. By refusing on and after September 27, 1977, to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
unit described above, Respondent violated Section
8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Except as set out above, Respondent has not violat-
ed the Act in any other respect alleged in the com-
plaints.
THE REMEDY
I shall recommend that Respondent be required to rec-
ognize and bargain collectively with the Union. I am
aware, of course, of the theoretical chance that counting
the unopened ballots may result in certification of the
Union as the bargaining representative. The Board has
recently held it appropriate to award a bargaining order
in situations where it was possible that union election
victories would also occur: I cannot distinguish those
cases from this one. Pope Maintenance Corporation, 228
NLRB 326, 348 (1977); The Great Atlantic & Pacific Tea
Company, 230 NLRB 766, 767-768.
Having found that Respondent unlawfully discharged
Stephen Bolding on November 8, 1977, 1 shall recom-
mend that it be ordered to offer Bolding immediate and
full reinstatement, without prejudice to his seniority and
other rights and privileges, and make him whole for any
loss of earnings he may have suffered from November 8,
1977, to the date of Respondent's offer of reinstatment,
with interest, in accordance with F W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).80
" See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
604
GORDONSVILLE INDUSTRIES, INC
I shall also recommend that Respondent be required to
post appropriate notices.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER8'
The Gordonsville Industries, Inc., Gordonsville, Vir-
ginia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively in
good faith, upon request, with Amalgamated Clothing
and Textile Workers Union, AFL-CIO, CLC (the
Union), as the exclusive bargaining representative of all
employees in the appropriate unit set forth in paragraph
5 of the Conclusions of Law herein with respect to rates
of pay, hours, and other terms and conditions of employ-
ment.
(b) Discharging or otherwise discriminating against
employees because of any activities on behalf of the
Union, or any other labor organization.
(c) Threatening employees, for assisting or supporting
the Union or any other labor organization, with loss of
benefits, loss of jobs, blacklisting, plant closure, or a re-
fusal to bargain; promising or granting benefits to em-
ployees to induce them to refuse to support the Union or
any other labor organization; and interfering with Board
processes by attempting to influence the testimony of
witnesses.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form, join, or assist any labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, or to engage in concerted
activities for the purposes of collective bargaining or
other mutual aid, or to refrain from any and all such ac-
tivities.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
,, In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings. conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes
(a) Offer to Stephen Bolding immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Recognize, effective September 27, 1977, and, upon
request, bargain collectively with the Union, as the ex-
clusive representative of the employees in the appropri-
ate unit set forth above, with respect to rates of pay,
hours, and other terms and conditions of employment,
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payroll records, time-
cards, personnel records and reports, and all other re-
cords necessary. or appropriate, to analyze the amount of
backpay due.
(d) Post at its place of business in Gordonsville, Vir-
ginia, copies of the attached notice marked "Appendix
B." " Copies of the notice, on forms provided by the
Regional Director for Region 5, after being duly signed
by Respondent's authorized representative, shall be
posted by it for a period of 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS AI.SO ORI)FRED that those portions of the com-
plaints found to be without merit are hereby dismissed.
IT IS FURTHER ORDEREI) that the ballots as described
in the foregoing Decision be opened and counted, and a
revised tally of ballots be issued, and, if necessary, the
election conducted in Case 5-RC-10242, on December 6,
1977, be, and it hereby is, set aside.
.2 In he event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of he National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
605