J. P. Stevens & Co.

National Labor Relations Board - Board Decisions

Oct 20, 1983

268 N.L.R.B. 11 (N.L.R.B. 1983)

J. P. STEVENS & CO.
J. P. Stevens & Co., Inc. and Amalgamated Clothing
and Textile Workers Union, AFL-CIO, CLC.
Cases 10-CA-15305, 10-CA-15328, and 10-
CA-15438
20 October 1983
DECISION AND ORDER
On 18 August 1981 Administrative Law Judge
David L. Evans of the National Labor Relations
Board issued his decision in the above-entitled pro-
ceeding, and, on the same date, the proceeding was
transferred to and continued before the Board in
Washington, D.C. The General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed a brief in support
of the administrative law judge's decision.'
On 13 October 1983 the parties entered into a
Settlement Stipulation, subject to the Board's ap-
proval, providing for the withdrawal of all excep-
tions to the judge's decision,2 and the entry of a
Board Order based on the Order set forth in the
judge's decision. The Stipulation further provides
that the Stipulation, together with the judge's deci-
sion, the amended consolidated complaint, and the
record made before the judge shall constitute the
entire record herein. In addition, the parties stipu-
late that the Respondent's signing of the Settlement
Stipulation does not constitute an admission that it
has violated the Act.
Having considered the matter, the Board ap-
proves the Settlement Stipulation, and the excep-
tions filed by the General Counsel and the Charg-
ing Party are withdrawn.
As no exceptions to the judge's Decision remain,
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, J. P. Ste-
vens & Co., Inc., New York, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
I On 16 October 1981 the Board remanded this proceeding for recon-
sideration in light of a brief which had been previously filed by the Gen-
eral Counsel but not received by the judge. On 20 November 1981 the
judge issued a Supplemental Decision in which he adhered to his original
decision.
I In the Settlement Stipulation the parties state that all parties filed ex-
ceptions and/or cross-exceptions to all or part of the judge's decision and
that all parties now withdraw all exceptions and cross-exceptions. Al-
though the Charging Party and the General Counsel filed exceptions, the
Respondent filed a brief in support of the judge's decision. We find that
the parties' apparent inadvertent error with regard to the Respondent
having filed exceptions and/or cross-exceptions has no effect on the va-
lidity of the Settlement Stipulation.
268 NLRB No. 20
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: This
proceeding was tried before me at Tifton and Atlanta,
Georgia, on 20 different days between January 5 and
March 3, 1981, pursuant to a consolidated complaint
issued June 24, 1980, which was amended at the hearing.
The charges were timely filed and served on December
17, 1979, ! and January 3 and February 1, 1980, by Amal-
gamated Clothing and Textile Workers Union, AFL-
CIO, CLC (the Union). The complaint alleges violations
of Section 8(a)(1), (3), and (5) of the National Labor Re-
lations Act, as amended (the Act), in that J. P. Stevens &
Co., Inc. (the Respondent), by its agents, unlawfully in-
terrogated and threatened employees, promised them
benefits, solicited the employees to withdraw from the
Union, threatened to withdraw benefits, and did with-
draw increased benefits from the employees, threatened
employees that economic strikers would have no rights
to jobs after a strike if they are permanently replaced,
disparately enforced a no-distribution rule and prohibited
distribution of union leaflets, issued an oral warning
notice to employee Lewis Hall and harassed employee
Joe Lewis Robinson because of their union activity, all
in violation of Section 8(a)(1) and (3) of the Act. The
complaint further alleges that the production and mainte-
nance employees of the Respondent's two plants in
Tifton, Georgia, constitute a unit appropriate for bar-
gaining under the Act, that since October 21 the Union
has been the majority representative of the employees in
said unit, that although requested on that date the Re-
spondent has refused to bargain with the Union as such
representative, and that such refusal and unilateral ac-
tions thereafter constitute violations of Section 8(a)(5) of
the Act. The Respondent timely answered these allega-
tions and denies the commission of any unfair labor prac-
tices. Upon consideration of the record, 2 my observation
of the witnesses as they testified, and the excellent post-
trial briefs filed by the Charging Party and the Respond-
ent, 3 I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The complaint alleges, the Respondent admits, and I
find that J. P. Stevens & Co., Inc. is a Delaware corpo-
ration engaged in the manufacturing and distribution of
textile products at its plants in Tifton, Georgia, and that
during the 12 months preceding the issuance of the com-
plaint, a representative period, the Respondent sold and
shipped finished products valued in excess of $50,000
from said plants directly to customers located outside the
State of Georgia and that the Respondent is and has been
at all times material herein an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
' Unless otherwise specified all dates herein referred to are in 1979.
2 The Charging Party's unopposed motion to correct the record in
various minor and obvious respects is granted.
3 The General Counsel did not submit a brief
11
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1I. LABOR ORGANIZATION
The Union is, and has been at all times material herein,
a labor oganization within the meaning of Section 2(5) of
the Act.
Ill. ALLEGED UNFAIR LABOR PRACTICES
The Respondent operates two plants in Tifton, Geor-
gia (plants 1 and 2), which produce apparel cloth and
carpet yarn. At all times material herein, manager of
both plants was Billy Smith; Robert Case was the super-
intendent for plant 1 and Denton Coleman was the man-
ager for plant 2. Thomas McDaniel was a department
manager of the die house which is located in Plant 2. (At
some time before the hearing, the title of "department
manager" was created to replace a former designation of
"overseer" which is mentioned in other Stevens' cases.)
Reporting to the various department managers in plants
1 and 2 were various shift supervisors including: Jose-
phine Brooks, Frank Edenfield, Edward Griffith, and
Billy Kimbrough. Also involved in this proceeding were
two corporate executives: Donald Johnson, vice presi-
dent, and Harold Addis, vice president and corporate
personnel director. All of these individuals are supervi-
sors or agents of the Respondent within the meaning of
Section 2(11) or (13) of the Act.
The two plants at the time of the events in question
employed about 715 production and maintenance em-
ployees. 4 The Union began a campaign to organize these
employees about May 1976. During the initial stages of
the campaign the Respondent violated Section 8(a)(1) in
various respects as found in J. P. Stevens & Co., Inc., 240
NLRB 33 (1979), enfd. sub nom. 612 F.2d 881 (4th Cir.
1980), cert. denied 446 U.S. 916 (1980).
In June 1979 the Union sought to obtain fresh authori-
zation cards and intensified its campaign. The Respond-
ent and the Union signed a Stipulation for Certification
Upon Consent Agreement in which they stipulated that
the two plants constitute separate appropriate units and
elections were scheduled for December 20. The election
was blocked by filing of the initial charge herein. The
complaint now seeks a bargaining order covering all pro-
duction and maintenance employees of both plants in one
unit. The Respondent contends that only separate units
are appropriate and that the Union should be bound to
its prior stipulation. In view of my findings herein, the
issues raised by these contentions are mooted. My find-
ings and conclusions on the allegations of violations of
Section 8(a)(1), (3), and (5) of the Act by the Respondent
during the 1979 campaign period are as follows.
A. Solicitation of Yancey to Withdraw from the Union
by Brooks
About October 1, employees began submitting, mostly
by mail, to the Union signed, preprinted forms which ex-
pressed that the employees sought to "specifically and
totally revoke the authorization card or cards signed by
me, at J. P. Stevens employee."
4 The employees worked three shifts: "A" from 12 a.m. to 8 a.m.; "B"
from 8 a.m, to 4 p.m.; and "C" from 4 p.m. until midnight.
The complaint, paragraph 16, alleges that one of these
revocations was the product of supervisory coercion di-
rected at employee Vernon Yancey. 5
Yancey, a man in his early twenties, was employed at
the time of hearing as a cloth roller in the mending de-
partment, in plant I on the B (8 a.m. to 4 p.m.) shift. He
was under the supervision of Supervisor Josephine (Jo)
Brooks and, at times, Supervisor Edwina Walker.
Yancey testified that he had three "conversations" or
exchanges with Supervisor Brooks concerning the Union
during the campaign of 1979. The first, which Yancey
placed at November 7, occurred at his rollup machine.
Yancey testified:
She came up to me and said I ought to go ahead
and sign my revoke card before they had the elec-
tion which was going to be held. And I told her to
go get me-to get me a revoke card and I would.
And she went over to Helen Wilkerson's [sic] table
and got one and brought it back to me and later on
that day, after I got through and all, working and
cleaning up my machine, I signed the revoke cards
and gave them back to Jo Brooks, and she took
them back to Helen Wilkerson [sic].
"Wilkerson," who is actually Helen Wilkinson, was an
employee who actively campaigned against the Union
and sought to get other employees to sign revocation
forms. The plural reference to "cards" is explained by
the fact that some of the revocation forms which were
circulated were in duplicate.
Yancey testified that during the 2 weeks following the
execution of the revocation, he signed another union au-
thorization card. During that 2-week period Brooks took
a vacation. Yancey testified that, on a day after Brooks
returned from vacation, he went to Brooks' office to
secure a pen for marking rolls of cloth and found Brooks
and Wilkinson present. According to Yancey's testimony
on direct examination:
. . . and I said, Jo, while you was gone I signed a
union card. And she said, why did you do it. And I
said, me and . . . [Edwina] Walker had got into it
and she was accusing me of things which I wasn't
doing.
On direct examination, Yancey testified to no response
by Brooks or Wilkinson and stated only "after that they
walked downstairs and I went back to my job." Yancey
further testified on direct examination that after his state-
ment in the office, and after he had returned to his work
area:
She [Brooks] came up to my roll-up machine and
started talking to me and said I ought to go ahead
and sign the revoke card before they held that elec-
tion . . . I told her let me think about it a little bit,
and she come back later on that same day and I
told her to-I'd get a revoke card and sign it.
I Only one other revocation is alleged to be the product of supervisory
solicitation, that of employee Hayman by Supervisor Edenfield, as dis-
cussed infra.
12
J. P. STEVENS & CO.
Yancey was not asked to explain what he meant by
"the" revoke card; there was no suggestion by Yancey
that he had been given another one by Brooks, Wilkin-
son, or anyone else at that time. Yancey testified that
later the same day he went to the work bench of em-
ployee Gladys Blanchard. 6 Yancey testified that at Blan-
chard's work bench he signed a second revocation card,
giving Blanchard the original and keeping a copy of it.
When asked how he knew to go to Blanchard's work
bench to get such revocation forms, Yancey then testi-
fied that in the November 7 conversation Brooks had
also told him that he could get one from Blanchard or
Wilkinson.
Yancey testified that after he signed the second revo-
cation he signed a third authorization card and a third
revocation form. Although not setting a date on direct
examination, Yancey testified that Brooks:
. . .came up to me and I was working on the roll-
up machine and she came up to me and said I heard
you signed a union card .... I said, yes, I have
.... She said, you need to get your card back.
Get it revoked before they have this election now. I
said, well, okay, and she went and got that revoke
paper from Gladys [Blanchard].
During the direct examination I asked Yancey and he
testified:
JUDGE EVANS: Very well. How did you receive
the third [revocation] form?
THE WITNESS: Jo Brooks, the supervisor, went to
Gladys [Blanchard] and got it from her.
Yancey signed a pretrial affidavit on January 3, 1980,
or within 2 months of the events described in his direct
examination. The affidavit states that he signed four au-
thorization cards, not three, in 1979. Yancey acknowl-
edged that his recollection would have been better in
January 1980 than it was a year later, or at the time of
the hearing. The affidavit further states: "I revoked one
card on November 7, 1979, and nearly revoked another
on December 18, 1979," and there was no mention of a
third revocation form. Yancey testified, again, that the
affidavit was correct, but also testified that he signed a
third revocation form "between November 7 and De-
cember 18." When asked why he mentioned in the affi-
davit only two revocations being signed, he responded:
"I didn't think about it at the time," and doggedly insist-
ed that he signed a total of three revocation cards, the
third of which he got back. Received in evidence was a
revocation form dated November 14, 1979. Yancey testi-
fied that this was his second revocation form to sign.
Yancey was asked on cross-examination:
Q. Okay. What happened to the third revocation
form you signed?
A. I don't know.
Q. Who did you give it to?
6 Yancey referred to Blanchard as Gladys Walker; the individual re-
ferred to had reassumed the name of Blanchard at the time of the hearing
and she shall be referred to as Blanchard, especially in order to avoid
confusion with Supervisor Edwina Walker.
A. Helen Wilkerson [sic].
Later, on cross-examination Yancey testified that he got
the third revocation back from Blanchard himself; there-
fore, he did, in fact, know what happened to it.
Yancey was further asked on cross-examination if on
November 14, when he went to the office and told
Brooks and Wilkinson that he had signed a second union
card, either of them then said anything about his revok-
ing the card. Yancey replied negatively and indicated,
again, that the November 14 mention of revoking of the
card was only "after a while-after we came back down-
stairs-" and not in Brooks' office. Yancey specifically
denied that he said anything about revoking the card on
that occasion while he was in Brooks' office. However,
he acknowledged that in his pretrial affidavit he testified
that he told Brooks and Wilkinson while he was in the
office: "I want to revoke it again, if you'll get me some
more revoke cards .... The three of us went down-
stairs to my machine." When asked to explain the con-
flict Yancey replied that his memory would have been
better at the time he gave his pretrial affidavit. Yancey
further acknowledged that his pretrial statement did not
reflect any questions asked by Brooks in the office meet-
ing of November 14 and acknowledged that it would be
correct to state that at that time Brooks asked him no
questions at all. This, of course, is directly in conflict
with his testimony that Brooks, when advised that he
had signed the second authorization card, asked him di-
rectly: "Why did you do it?"
Further on cross-examination Yancey was asked if he
asked Gladys Blanchard for the third revocation form.
He responded: "No, sir. I didn't ask her for a revoke
card." However, Yancey acknowledged that in his pre-
trial statement he said: "On December 18, 1979, 1 asked
[Blanchard] for another revoke which I signed and re-
turned to her. It was my idea," which testimony also
conflicts with his above-quoted answers that he got the
third revocation form from Brooks and gave it to Wil-
kinson. Further, regarding the third revocation, appar-
ently7 executed on December 19, Yancey testified that
on that morning he asked Brooks to go to Blanchard to
retrieve the third revocation form because he wanted to
think about it some more. He testified that Brooks stated
that she would do what he asked. He further testified
that after going off Brooks returned and stated that Blan-
chard said for him to come get it himself and that he did
so later in the day.
Testimony of Brooks on Yancey
Josephine Brooks, who was still employed as the
mending department supervisor at the time of trial, testi-
fied that she had three exchanges with Yancey about a
union card. The first she placed in October or November
of 1979 in the aisleway around the work station of
Gladys Blanchard who Brooks said was present. When
asked on direct examination what was said she testified:
I It was not placed in evidence; the Union never received a third revo-
cation form, if there was one
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, Vernon Yancey come up to me that
morning kind of fast-like, and sort of excited-like, he
said, "I've done it again; I've done it again; I've
done it again."
Q. He said that three times?
A. Yes, sir. I said, "What have you done?" He
said, "I signed a union card," said, "Wayne made
me do it." I said, "Well, what has Wayne done to
you?" He said, "He made me mad."
Brooks identified "Wayne" as Wayne Nolan, a depart-
ment head. Brooks denied that anything was said about
revocation of the card at that time.
Brooks testified that on a second occasion which she
placed in November, at a time when she was passing by
Yancey's work station:
. . . he stopped me. He said, "I'm thinking about
revoking my union card" and I said, "Oh?" He said,
"Go get me a form, and I'll sign it." I just sort of
shook my head. I said, "Unh-Unh" [negative],
"You get you one," and I went on.
Brooks denied that anything else was said in this ex-
change.
Brooks testified that was a third exchange regarding
union authorization cards between herself and Yancey on
Monday following the Thanksgiving vacation:
Well, he just ran up there again. He said, "I done it
again; I done it again." I said, "What?" He said,
"I've signed another union card," said, "Edwina
[Walker] made me mad," said, "I told you I
couldn't work for that blond-headed bitch." I said,
"You ought to be ashamed of yourself."
(Edwina Walker, who testified, has brilliant blonde hair.)
Brooks denied that anything else was said in the ex-
change and denied specifically that revocation of cards
was mentioned in any way and further denied that she
asked Yancey why he had signed a card at that time.
On cross-examination Brooks denied knowing that
Helen Wilkinson kept revocation forms at her work sta-
tion or that Gladys Blanchard had some at hers; in fact,
she denied seeing any in the work area or the break area
and admitted seeing such a form only as a handout at the
gate.
Testimony of Helen Wilkinson
Wilkinson was employed at the time of the events in
question and at the time of the hearing as a mending in-
structor and a mender in the department supervised by
Brooks and Walker. Wilkinson actively solicited revoca-
tion forms from employees who had signed authorization
cards for the Union. She sometimes paid the approxi-
mately 8 $1.50 postage fee for certified mail herself, and
sometimes she collected funds from other employees for
that purpose. There is no allegation of financial or other
sponsorship of this activity by the Respondent.
I As the single-page forms were collected and sent by certified mail to
the Union, the parties posting the letters were charged various amounts
between $1.20 and $1.60 by the Post Office Department.
Wilkinson testified that she gave Blanchard two revo-
cation forms to be used by Yancey. One of these Blan-
chard returned in October or November along with $5
to cover cost of mailing. Wilkinson testified that thereaf-
ter Yancey stopped her as she was walking by his work
station and said that he needed another letter to revoke
his card because he had signed another union authoriza-
tion card. According to Wilkinson she replied:
Well, there is no need for me to get you another
card-another letter-if you are going to keep sign-
ing union cards. I said, "I'm not paying for any
more of your letters to be revoked" and I went on.
Since Blanchard gave Wilkinson $5 to cover the $1.50
mailing charge, it is unclear why Wilkinson would have
said anything to Yancey about her paying for his letters
to be revoked.9 At any rate, Wilkinson denied that she
was ever present when Brooks and Yancey discussed
anything about a union or that Brooks was present when
she discussed his attempts to revoke his union authoriza-
tion card. On cross-examination Wilkinson denied ever
handing revocation forms to Young in the presence of
Brooks.
Employees Doris Roberts and Gladys Blanchard testi-
fied that they were the individuals who solicited two
revocations from Yancey. Roberts testified that at some
time in October Yancey indicated to her that he had
signed a union card but was really not for the Union.
Roberts told Yancey that she would see what she could
do to help him get it revoked. Roberts testified that she
went to Supervisor Brooks and asked "where you could
send out to revoke it." Brooks told Roberts tha, she
would get the address from personnel. Roberts testified
that Brooks gave the address to Blanchard but testified
to no further involvement in a revocation by Yancey if
there was one at that point. She testified that later in Oc-
tober she asked Yancey if he still wanted to revoke his
card and he replied affirmatively. Then Roberts "called
Gladys Blanchard over there and she told him that she
would get him a form to fill out and put his name and
address and all on it. And so he went over there and she
gave him a card and he taken it home, I think." Roberts
did not know whether a revocation was executed by
Yancey at that point. According to Roberts a couple of
days later Yancey approached her and asked again if she
had the address for mailing the revocation form. At that
point, according to Roberts, she escorted Yancey to
Blanchard's work table and left when Yancey "was
fixing to sign the paper." Roberts testified that she had
no further conversations with Yancey regarding union
cards but did corroborate Brooks to a certain extent by
saying that after Thanksgiving, in reference to Walker,
Yancey at one point told her "that blond-headed bitch
made [me] mad."
Gladys Blanchard testified that at a date which she
placed in August 1979, Roberts called her over to her
work station where Yancey was present and asked her
9 On cross-examination Wilkinson testified that Blanchard told her to
keep the change from the $5 to be used for other mailing and that she did
spend some of "my money" to mail the revocations which she solicited.
14
J. P. STEVENS & CO.
"if I knew how to get the card, and I told her that we'd
get the address." Blanchard then went to Brooks who, in
turn, went to the personnel office where she got the ad-
dress to which the revocations were to be sent. Blan-
chard also went to Helen Wilkinson's desk and got a rev-
ocation form and returned it to Yancey.
Blanchard further testified that in November she was
again at Roberts' work station when Yancey again indi-
cated that he wished to revoke an authorization card and
she again got a form from Wilkinson. Yancey signed the
revocation form in her presence and she gave it to Wil-
kinson, with $5, to mail.
Blanchard testified that on another occasion, later in
November, Yancey approached her and said:
Well, I did it again. I have did it again. And I said,
you have done what again. And he said, well, I did
it. And I said not sign another Union card. And he
said yes, I have. And I said, well, I'm going to tell
you one damn thing-that's what I said-that if you
get another one revoked, you will get it from some-
one else, and you will pay for it yourself.
According to Blanchard, Yancey laughed and walked
off.
Conclusions on Brooks-Yancey Solicitation
Allegation
Yancey's testimony vacillated as much did his union
allegiance. An unnaturally skittish demeanor and the
enumerated conflicts within his testimony at hearing (as
well as the conflicts manifested when his testimony at
hearing is compared with the testimony contained in his
pretrial affidavit) render Yancey incredible, and therefore
it is impossible to find a violation based on his testimony
to the effect that at some time or another during 1979 he
was coerced into signing one or more revocation forms
by Brooks. On the other hand, Brooks had a credible de-
meanor and there is nothing in the record, independent
of Yancey's discredited testimony, that would tend to
discredit her. 0 Additionally, employees Wilkinson,
Blanchard, and Roberts credibly testified that they joint-
ly solicited two revocation forms from Yancey before
Thanksgiving 1979, and there was no participation by
Brooks except that Blanchard and Roberts asked Brooks
for the address to which revocation forms could be sent
and Brooks provided that address. For these reasons I
shall recommend that the allegation of the complaint,
paragraph 16, that Brooks coerced an employee into
signing a revocation of his union authorization card be
dismissed.
B. Promise to Yancey by Brooks
I shall further recommend dismissal of the allegation
of the complaint, paragraph 12, that Respondent, by Su-
pervisor Brooks, on or about October 31, promised its
employees "increased benefits, such as early paychecks
'0 At one point Blanchard denied that Brooks was present when she
and Yancey discussed union authorization cards. Brooks, however,
placed Blanchard there when Yancey once spoke of signing a union au-
thorization card. Contrary to the assertion of the Charging Party, this
would tend to discredit Blanchard, but not Brooks.
and other favors the Union is unable to do," if its em-
ployees ceased engaging in activities on behalf of the
Union. This allegation also rests solely on the testimony
of Yancey. Yancey testified:
Okay. I went into her [Brooks'] office. I told her-I
said, "Jo, I need to get my check early. I got some-
thing I need to do." And she said, "Okay, I can get
it, but don't make it often." I said, "Okay." Then,
she started saying I can get your check early for
you and other things that the Union cannot do for
you. I said, "I don't know; really?"
Assuming Yancey could be credited, precisely the
same remark by a supervisor was held nonviolative in
Omni International Hotel, 242 NLRB 248, 255 (1979), as
it does not constitute a threat, promise of benefit, or
other coercive conduct. Moreover, Brooks denied
having made such a remark, and I found her to be a far
more credible witness than Yancey. For these reasons I
shall also recommend that this allegation of the com-
plaint be dismissed.
C. Solicitation of Hayman by Edenfleld
Morris Hayman, who was no longer employed by Re-
spondent at the time of the hearing, testified that about
10 days before the election scheduled for December 20
he heard a rumor that employees could obtain revocation
forms in the office of Supervisor Frank Edenfield. On
direct examination Hayman testified:
I went to Frank Edenfield's office, and there was
some cards laying on-some sheets of paper laying
on the desk, and I picked one up, looked at it, and
signed it and filled it out, and I believe Frank told
me to put it up under the calendar.
In testifying Hayman emphasized the words "I believe"
quite strongly impressing me that he was speculating
rather than testifying as to a memory that he then had.
When asked on direct examination if he knew what hap-
pened to his form, Hayman testified that Edenfield said
he would get it mailed but he did not know what hap-
pened to it thereafter. The union counsel acknowledged
at the hearing that the Union never received a revoca-
tion signed by Hayman.
On cross-examination Hayman was asked and an-
swered:
Q. Okay. And then you gave the form-What
did you do with the form once you signed it?
A. I believe Frank Edenfield told me to stick it
up under his calendar, and that's what I done.
That's the last time I saw it.
Again, Hayman emphasized the words "I believe." He
did it so strongly the second time that I had to admonish
him to search his memory carefully to determine wheth-
er Edenfield had given him any instruction. To my di-
rection Hayman responded: "Well, he would have had to
have told me, I would say, to put it under his calendar.
Yes he told me." By his words and in his demeanor it
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was quite apparent to me that Hayman was engaging in a
process of logical deduction as to what Edenfield might
have said about a revocation form, and he could not
really recall any instruction by Edenfield.
Edenfield denied having anything to do with any rev-
ocation form signed by Hayman. He further denied
having any revocation forms in his office at any time
during the campaign.
I could only speculate as to the source of Hayman's
apparent confusion about what Edenfield did or did not
tell him to do with any form. I further do not believe
that Hayman got the revocation form in Edenfield's
office; of the 715 employees in the plants and the 76 em-
ployee witnesses called to testify by the General Counsel
he was the only one who testified to finding revocation
forms in a supervisor's office and, certainly, if any super-
visor such as Edenfield kept them openly displayed, an-
other employee would have testified to the fact.
Moreover, since the revocation form, if executed, was
never transmitted to the Union as its counsel represents
to be the case, Edenfield did everything but assist
Hayman in withdrawing from the Union, assuming all
testimony of Hayman is credited. That is, if Edenfield
lost or destroyed the revocation form, neither Hayman
nor any other employee was assisted in effectively exe-
cuting a revocation form. Finally, I would not find, as
the complaint alleges, paragraph 15, that Edenfield solic-
ited Hayman; according to his own testimony it was
Hayman who entered the office, grabbed the revocation
form and signed it without so much as a word being
spoken by Edenfield. That is, again assuming credit to
Hayman's testimony, the conduct of Edenfield, in simply
maintaining the forms on his desk at some point or an-
other during a long campaign, does not constitute a so-
licitation without more.
Accordingly, I shall recommend that this allegation of
the complaint be dismissed.
D. Interrogation of Goodman by Griffith
Respondent conducted a series of campaign speeches
which will be discussed infra. The first speech was con-
ducted on December 6 by Plant Manager Case, and a
second round of meetings was conducted by Smith and
Addis on December 11, 12, and 13. Craig Goodman,
who was not employed by Respondent at the time of the
hearing, testified that during the campaign he was em-
ployed as a weaver under the direct supervision of Grif-
fith. Goodman testified that, a day or two before the De-
cember 6 meeting, he went to Griffith's office to present
a doctor's excuse for a previous absence, at a time when
no one else was present. According to Goodman:
After I showed him the doctor's excuse, then he
asked me had I got any mail from the Company,
and I asked him what it was about, and he said the-
Union, and he asked me was I for the Union, and I
told him I was, but I had changed my mind, and
then he started telling me about somewhere in Al-
lendale or somewhere about the Union-you
know-about these bunch of people getting killed
and all. . .. Well, he said that we're going to start
having these meetings in a couple of days and I
think it'll change. I've seen them before, and I think
they'll change a lot of people's mind [sic] about the
Union.
Goodman testified that he had regularly worn a union
button, but on that particular day was not wearing one.
The complaint alleges that Griffith's asking an employee
if he was "for" the Union is an interrogation violative of
Section 8(a)(l) of the Act. I I
Griffith denied questioning Goodman about his union
sympathies.' 2 However, I found Goodman believable in
his testimony that Griffith asked him if he was for the
Union. Respondent argues that it is illogical to conclude
that Griffith would ask Goodman if he were still for the
Union when Griffith had plainly seen Goodman wear
union buttons regularly. However, I believe Goodman's
testimony on this particular day that he did not wear his
union button. It is quite apparent to me that Griffith ver-
balized a wondering as to whether the failure to wear
the union button constituted a change in union sympathy
in Goodman. When such wondering is made the subject
of a questioning of an employee, it constitutes an interro-
gation in violation of Section 8(a)(l) of the Act as I so
find and conclude. PPG Industries, 251 NLRB 1146
(1980).
E. Interrogation of Bush by Cheek
Employee Darryl Bush, who was employed by Re-
spondent at the time of his testimony, testified that be-
tween December I and 20, the date an election was
scheduled, he was approached by his "overseer" Wayne
Cheek in the card room where Bush wvas working. Ac-
cording to Bush:
He asked me that was I against the Union. I mean
about the Union, what do I think about the Union. I
said: "I'm not against it; I'm not for it." That's all I
said .... Well, he say I better be ready. I better
have my mind made up before the 20th.
Cheek flatly denied ever questioning Bush about his sym-
pathies for the Union. However, despite various minor
inconsistencies with Bush's affidavit and between his tes-
" Goodman testified that between the alleged interrogation and the
December 6 meeting he was approached by Griffith who asked him if he
wanted to go to the meeting with "nonunion people" and he replied:
"No, I wanted to go with the Union people." At that point Goodman
was led by the General Counsel to state that the people with whom he
attended the first meeting were "all openly for the Union" and that Re-
spondent "segregated the employees to attend these meetings." Goodman
further testified he had another exchange with Griffith which would tend
to indicate that the employees were segregated by their union sympathies
when being scheduled to attend the company campaign meetings. Since
Goodman first had to be led to testify that the employees were segregat-
ed according to sympathies in scheduling their attendance at Respond-
etlt's campaign meetings, and since no other employees testified to such
segregation. I would not find that the employer did engage in such segre-
gation. However, since the complaint does not allege such segregation of
employees in any way to be a violation of the Act, I need make no spe-
cific finding or conclusion on the point. The only allegation of the com-
plaint based on the exchanges between Griffith and Goodman are con-
tained in par. 7 which alleges that Griffith interrogated an employee
12 Griffith further credibily denied knowing anything about any segre-
gation of employees according to union sympathies in the campaign
meetings
16
J. P. STEVENS & CO.
timony on direct and cross, I found Bush to be complete-
ly a credible witness and I find and conclude that he was
interrogated about his union sympathies by Cheek at
some time between December 1 and 20, 1979, and I con-
clude that this interrogation violated Section 8(a)(l) of
the Act. PPG Industries, supra.
F. Interrogation of Parks by Kimbrough
Gwendolyn Parks was employed by Respondent at the
time of the hearing as a winder under the supervision of
Billy Kimbrough. Parks testified that "a couple of days"
before the election scheduled for December 20 she was
approached at her winding machine by Kimbrough. Ac-
cording to Parks:
Well, he came up to me-I was working and he
come up to me and asked me, he said, "Gwen, have
you decided whether or not you was going to vote
for the Union?" and I said, "No, I haven't decided."
Parks was asked if anything else was said in this ex-
change and she replied that there was not. The com-
plaint alleges that this questioning of Parks constitutes an
interrogation within Section 8(a)(1).
Kimbrough, who was still employed by Respondent as
a supervisor, flatly denied asking Parks if she knew how
she was going to vote in the election. Kimbrough further
testified that he had been instructed not to ask the em-
ployees any questions at all, but he acknowledged on
cross-examination that he was also instructed not to initi-
ate any conversations about the Union or the election
with employees. He further acknowledged that he did in
fact initiate the conversation about the election, telling
Parks only that she should be sure and vote, which of
course would be contrary to those instructions.
On cross-examination Parks was asked if Kimbrough
did not say that she should be sure and vote in the elec-
cion and Parks replied that she could not remember. I
believe, and find, that the only remark made by Kim-
brough on that day immediately preceding the election
was that Park should be sure and vote. Kimbrough im-
pressed me as a truthful witness, and I do not believe
that if he had gone to the trouble of violating his instruc-
tions to not ask employees questions and got an answer
which would indicate that Parks had not made up her
mind, he would have simply dropped the matter there,
which would be the effect of Parks' testimony. In sum-
mary, I credit Kimbrough's denial that he asked Parks
how she was going to vote in the forthcoming election
and shall recommend dismissal of this allegation of the
complaint.
G. Threats by Case in a Speech
On December 6, in separate groups, Case delivered a
2500-word speech to about 60 employees at Respondent's
plant 1. Three separate allegations of the complaint are
based on this speech, to wit, a threat of futility of collec-
tive bargaining, a threat to reduce benefits, and a threat
to deny employees a statutory right to present individual
grievances.
Near the beginning of the speech Case states:
.... It is not easy to listen to someone tell you
how green the grass is on the other side of the
fence and not be tempted to try it out. A union can
promise you anything, but what you must constant-
ly bear in mind is that there is no legal way for you
to enforce union promises. The NLRB call such
promises "sales talk" and says that employees ought
to know this. A union can only ask a company to
do something, but [it] is the company that decides
whether or not to do it.
Then Case proceeds to the topic of exclusive represen-
tation:
When a union wins an election, it becomes the bar-
gaining representative of all the employees in the
voting unit. If there are 500 votes, and 251 vote for
the union and 249 vote against the union, the union
becomes the bargaining representative for all 500
employees-including the 249 who didn't want the
union.
Once the union becomes the representative of the
employees, it becomes the "exclusive spokesman"
for the employees. Employees can no longer stand
on their own two feet and speak for themselves,
even if they want to. If you have a complaint in a
union plant, you have to take it through the union.
So don't think you can vote a union in with the
idea of not signing up to pay dues after the election.
That's an old trick. Unions don't give anyone free
service. They don't believe in "free riders." If you
don't pay your dues, no one will speak for you.
Look around the plant and try to figure out who
the union stewards would be. You know who they
would be-they would be the employees who are
pushing the union the hardest. They are the ones
who would put the union's interest first-above the
interest of anyone else. Ask yourself: would you
want one of these employees to decide whether
your grievance would be taken to the company?
Would you want to hand over your right to speak
for yourself to one of these employees?
The speech then goes into the topic of the duty to bar-
gain:
How Would a Union Affect Your Wages, Benefits
and Working Conditions?
The law says that if a union is the elected represent-
ative of employees, the company and the union
must negotiate "in good faith" in an attempt to
reach a contract. But the law makes it clear that the
company is not required to make any concessions or
give in on any points. Let's take a quick look at
what the NLRB and the courts have said about this.
At that point a slide is shown quoting or paraphrasing
language from the following cases: Midwestern Instru-
ments, Inc., 133 NLRB 1132 (1961); Oxford Pickles, 190
NLRB 109 (1971); Automation d Measurement Div. v.
NLRB, 400 F.2d 141 (6th Cir. 1968). Each of these cases
indicates that in a course of good-faith bargaining em-
17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees may lose, as well as gain, in certain areas of their
emoluments of employment. The presentation by Case
continues:
So, it's easy to see that voting for a union does
not-guarantee that your wages, benefits, or work-
ing conditions will be better than they are today;-
in fact, there is no guarantee that through good
faith bargaining your wages, benefits and working
conditions will even remain the same as they are
today. When you sit down to negotiate with a
union, you start off with a blank piece of paper and
you don't write anything down on the paper until
both parties agree.
Then the speech goes to the topic of strikes:
What Would Happen if the Parties Couldn't Reach
an Agreement?
If the parties cannot agree on the terms of a con-
tract, the union is free to call a strike ....
The speech then goes into a depiction of the effects of
strikes in general and strikes by the Charging Party in
particular.
Then the speech discusses several topics of collective
bargaining. The Charging Party stresses references to in-
surance and pensions included in Case's speech:
The union has been very critical of the pension
plan. They claim that you would have a better pen-
sion plan if the union represented you. They have
even told some employees that they would guaran-
tee you at least $100 per month in pension benefits.
That's a joke. The truth of the matter is that this
union has a deplorable record as far as pension
plans are concerned. Here is a copy of the union's
contract at Canton Textile Mills. The word "pen-
sion" is not even mentioned in this contract. And
here are five other contracts negotiated by this
same union-and none of them say anything about
pensions. But let's look closer to home. Let's look
at Roanoke Rapids. The union has represented Roa-
noke Rapids employees of J. P. Stevens for over
five years now. Yet those employees have never re-
ceived pension benefits any better than you have.
The union may promise to get you a better pen-
sion-but the record shows that this union can't
help you on pensions.
Then Case proceeded immediately to the topic of insur-
ance stating:
Looking even closer to home, at Roanoke Rapids
the union agreed to the same insurance you have.
Ask yourself: How can a union organizer promise
you that the union will get you better insurance
than you have now and require the company to pay
for all dependent coverage, when the union agreed
to the same plan you have at Roanoke Rapids? You
would have to be pretty naive to think that the
union is going to get you something it hasn't been
able to get Roanoke Rapids employees in over five
years of negotiating.
Conclusions on Case's Speech
1. Threat of futility
The complaint, paragraph 8, alleges that in the De-
cember 6 speech Case:
Threatened [Respondent's] employees that it would
be futile to engage in activities on behalf of the
union by telling [Respondent's] employees there
was no legal way the union could enforce its prom-
ises because Respondent decided whether or not to
carry out promises.
In arguing that Case's December 6 remarks constitute
unlawful threats of futility of collective bargaining, espe-
cially regarding bargaining about insurance and pensions,
the Charging Party cites T. V Systems, 206 NLRB 841
(1973), and Bancroft Mfg. Co., 189 NLRB 619 (1971).
These cases are representative of those in which the
Board has found violative suggestions that it would be
futile for employees to engage in organizational efforts
or attempts to benefit by collective bargaining. In T V:
Systems the remarks were made in the context of a dis-
charge of the entire unit and other unfair labor practices;
in Bancroft the questioned statement contained no ex-
pressed acknowledgement of a duty to bargain in good
faith, and warned that disagreements at the bargaining
table could be overcome only by a strike. Here the
remark is not made in a context of other unfair labor
practices' 3 and there is no expressed or implied threat
that the employees would be required to strike to force
Respondent to bargain in good faith. Absent either of
these factors a suggestion that bargaining may be unsuc-
cessful is not tantamount to a threat of futility under the
Act. See Visador Co., 245 NLRB 508 (1979). Rather, un-
attended by threats or other unfair labor practices the
speech by Case falls within the authorities wherein it has
been held that questioned remarks are "merely an expres-
sion of opinion of the type clearly permissible under the
statute." Blue Cross, 219 NLRB 1 (1975). See also Stark-
ville, Inc., 219 NLRB 595, 599-600 (1975), where the
same theme was followed by using comparisons of the
benefits of the employees who were unrepresented
against those of the employees of other plants which
were represented by the union involved.'4
Accordingly, I shall recommend that this allegation of
the complaint be dismissed.
2. Threat of loss of benefits
The complaint, paragraph 11, alleges that in his speech
Case: "Threatened [Respondent's] employees with loss of
13 Only one unfair labor practice clearly occurred before the date of
Case's speech. This was the isolated interrogation of Goodman by Grif-
fith a "day or two" before December 6, according to Goodman.
14 And see also Mi. Ida Footwear Co., 217 NLRB 1011, 1014 (1975),
where the employer stated that he was willing to give as much without a
union as he would with a union. The Board held: "In our opinion this
statement falls within permissible campaigning."
18
J. P. STEVENS & CO.
benefits they now enjoyed if they engaged in activities
on behalf of the Union."
In several different cases the Board has held that "bar-
gaining from scratch" statements constitute a threat. This
is where the remark can be reasonably construed to
imply that the employer will unilaterally discontinue ex-
isting benefits and what the employees may ultimately
receive depends in large measure upon what a union can
induce the employer to restore at the bargaining table.
See Plastronics, Inc., 233 NLRB 155 (1977). In this case
there is no express, or implied, threat that the employer
would unilaterally reduce any benefits; there is an ex-
press reference to the duty of good-faith bargaining; and
there is no hint that the employees will ultimately be left
with what portion of their present benefits the union
could recapture for them.
In this posture there is no element of interference, re-
straint, or coercion in the quoted text, and I shall recom-
mend that this allegation of the complaint be dismissed.
3. Threat to deny statutory rights
The complaint, paragraph 10, alleges that, in violation
of Section 8(a)(1), on or about December 6 Case "threat-
ened [Respondent's] employees with loss of their right to
individually talk with management about grievances if
they selected the Union as their collective-bargaining
representative .... " The "right" referred to is con-
tained in the provisos of Section 9(a) of the Act. 5
In TRW-United Greenfield Div., 245 NLRB 1135, 1142
(1979), similar employer remarks were held nonviolative.
The statement of the employer there was contained in a
letter to the employees which stated:
"The United Auto Workers want to get in our plant
and take money from your paychecks through
union dues, fines, fees and assessments. At the same
time this would take away all of your individual
rights to speak for yourselves in matters relating to
your job."
Although that employer was more simplistic, there is no
essential distinction in the effect of the words used by
Respondent herein. The administrative law judge's deci-
sion, which the Board adopted without comment on this
point (245 NLRB at 1143), reasoned:
In a strictly technical sense the Section 9(a) pro-
viso permits an employee represented by a union to
present his grievance to management without inter-
vention by the Union. However, any adjustment of
such grievance cannot be contrary to the collective-
5 Sec. 9(a) of the Act states:
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective-bargaining in re-
spect to rates of pay, wages, hours of employment, or other condi-
tions of employment: Provided, That any individual employee or a
group of employees shall have the right at any time to present griev-
ances to their employer and to have such grievances adjusted, with-
out the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a collective-bargain-
ing contract or agreement then in effect: Provided further, That the
bargaining representative has been given opportunity to be present at
such adjustment.
bargaining agreement, and union officials must be
afforded the opportunity to be present to insure
compliance with the agreement. Thus, employees
presenting such grievances are severely limited in
any adjustment of the grievance they may negotiate
contrary to unrepresented employees who are limit-
ed in the adjustment of such grievances only by
their ability to negotiate. An elementary concept of
collective bargaining is that employees do surrender
many individual rights to "deal" with management
which they formerly possessed in return for the ad-
vantages inherent in their collective strength and
the security of a collective-bargaining agreement. In
my view, the statements of the employer here
merely conveyed to the employees that if they
should choose collective representation they would
no longer be free to seek individual adjustments of
grievances, as in the past, because of the restraints
on such adjustments imposed by any collective-bar-
gaining agreement.
In so stating, the administrative law judge, and therefore
the Board, apparently followed Federal Mogul Corp. v.
NLRB, 566 F.2d 1245 (5th Cir. 1978). In that case the
Fifth Circuit held that under Section 9(a) of the Act the
right to present grievances individually is a statutory em-
ployee right, not a company benefit, so that a company
cannot effectively threaten to take it away.'t
I am, of course, bound by the Decision of the Board in
TRW- United Greenfield Div., supra, and, accordingly, I
conclude that by its statement regarding ability of em-
ployees to present individual grievances, Respondent did
not violate Section 8(a)(1) of the Act and shall recom-
mend dismissal of this allegation of the complaint.
H. Threats by Smith and Addis in a Speech and Slide
Presentation
On December 11, 12, and 13, Plant Manager Billy
Smith and Employee Relations Vice President Harold E.
Addis jointly conducted group meetings with all of Re-
spondent's Tifton employees. Smith opened the sessions
with one prepared speech; his speech was followed by a
slide presentation with a prerecorded audio text; and the
'6 If it is a "right" vested in the employee by the statute, it is certainly
an empty one. There is no corresponding obligation on the part of the
employer to deal fairly, or bargain in good faith, with the grieving indi-
vidual employee. Indeed, there is no statutory protection for the employ-
ee should the employer decide to fire him for the presentation of a purely
individual grievance. Although phrased in terms of an employee right,
the proviso of Sec. 9(a) appears to be actually an employer privilege the
effect of which is to insulate the employer from charges of individual
bargaining under Sec. 8(aXS) should it listen to an employee grievance,
and/or should it adjust that grievance, as long as the union is allowed an
opportunity to insure that the adjustment is not inconsistent with an
extant collective-bargaining agreement. This privilege, like any privilege,
is one an employer can invoke or not, as it wishes. Therefore, it would
seem to me that when an employer tells employees that if they select a
union as their collective-bargaining representative they will no longer be
heard individually, it is telling them that it would not invoke the insula-
tion against Sec. 8(aXS5) charges which is contained in Sec. 9(a), and
would not entertain their individual grievances. When individual griev-
ances had theretofore been entertained, such announcement would there-
fore seem to constitute a threat.
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"slide show" was followed by a prepared presentation by
Addis concerning changes in Respondent's pension plan.
The complaint paragraph 9 alleges that in the Smith
speeches and slide show Respondent: "threatened its em-
ployees that it would be futile for its employees to select
the Union as their collective-bargaining representative
and that Respondent would retaliate by dealing with its
Tifton plant employees as it had with its employees at its
Roanoke Rapids, N. C., plant." The complaint paragraph
14 further alleges that in the presentation by Addis Re-
spondent "threatened its employees it would withhold
scheduled increased pension benefits from its employees
if they joined or engaged in activities on behalf of the
Union." The General Counsel submitted no brief; there-
fore I do not know the precise theory of these allega-
tions. I can only assume that the allegation rests on the
speeches taken as a whole. Respondent contends that the
words of the presentation fell within the ambit of the
"free speech" proviso of Section 8(c) of the Act. 17
Smith's speech, consisting of about 1000 words, begins
with a statement that the purpose of the meeting is "to
discuss additional important information about the Union
and the election next week." He introduces Addis as the
person in "overall charge of personnel matters for the
whole company." The second paragraph of the speech
states that Smith will begin by showing the employees a
film after which Addis and he would answer any ques-
tions. In the third paragraph Smith states that the Union:
. . . is beginning to put on more pressure than ever.
They want the '8 employees of this plant
as dues paying union members very badly. That's
why they have flooded Tifton with so many union
organizers .... And for that reason, these organiz-
ers are willing to do or say just about anything to
get your vote.
Respondent placed in evidence handbills and other mate-
rial distributed by the Union before the date of the
speech. It contends that much of what the slide presenta-
tion Smith's and Addis' presentations were in reply to
these handbills.
Paragraph 4 of Smith's speech states that the employ-
ees should give careful consideration to the issue before
them and adds: "If the union gets into this plant, you are
going to have to live with it from now on-no matter
how miserable the union may make your life."
Paragraph 5 tells the employees to decide what is best
for them, and adds:
Don't worry about J. P. Stevens. We will run our
plants and weave our wool (produce our yarn) re-
gardless of the union. We have battled this union
since 1963. And we will battle it for the next 16
years if necessary, and we will do it completely
l7 Sec. 8(c) provides:
The expressing of any views, argument, or opinion, or the dissemina-
tion thereof, whether in written, printed, graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under
any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.
I8 The blank in the speech was not explained; presumably it refers to
the number of employees in the plant.
within the law. This union has not hurt Stevens,
and it's not going to. We know this union for what
it is-and what it is is a "weak sister," as far as I'm
concerned. So, don't worry about Stevens-worry
about what is best for you and those who depend
on you. Would this union help-or hurt-you? If
you will look closely at the union's track record, I
think the answer will become very clear.
Paragraph 6 of Smith's speech tells the employees not
to make their decision on the basis of the "personality"
of anyone involved. It continues:
No union is going to change that either. No union
organizer or union steward is ever going to give
any orders to any supervisor in this plant. You can
be absolutely certain of that. The company is
always going to make the final decisions on all mat-
ters relating to this plant.
Paragraph 7 of Smith's speech states that there are
3000 represented and 37,000 unrepresented employees
who "speak for themselves." It continues:
You should ask yourself:
I. Which group of Stevens employees have the
best deal-the union employees or the non-union
employees?
2. Which group of employees in Stevens gets
paid higher wages-the union employees or the
non-union employees?
3. Which group does better as far as pensions are
concerned? And other benefits?
4. Which group has better job security?
5. Which group has a better seniority system?
These are all fair questions, aren't they? Of
course they are. They are the important questions.
Wages, benefits, job security and promotional op-
portunities are what this election is about. And if
one group of Stevens employees has a better deal
than the other, then that's the group you ought to
want to be a part of. [Emphasis in original.]
Paragraphs 8 and 9 state that this comparison is what
the slide program of the day is about and state that
Addis will have a statement to read at the conclusion
thereof and that Smith and Addis will take their ques-
tions after the program.
Then begins the slide show. The original slides had
been destroyed by the producer before the hearing
herein. By stipulation the parties attempted to recon-
struct what slides they could. Some of the slides were
available in photograph forms which were received in
evidence. Also, some slides were essentially duplicated
by presentation of newspaper articles which were made
the subject of the slides and handbills which were also
made the subject of some slides. Some newspaper articles
were used in the slide presentation but were not recov-
ered by the parties. The exact point at which each slide
was shown is also not ascertainable; however, the parties
were able to stipulate that slides were shown during the
presentation of page I or 2, etc., of the transcript of the
recorded presentation. Most of these slides just state the
20
J. P. STEVENS & CO.
topic of the paragraphs of the text and add little or noth-
ing to the presentation; the Union in its brief only refers
to the transcript of the presentation as the words which
make out a violation. Therefore, I will not describe the
slides which were used at different passages in the pres-
entation.
The transcript of the presentation is a document of
about 4000 words. The first three full paragraphs state
that the presentation has been prepared by Smith and
other members of local management, that employees
should feel encouraged to ask questions, and that "the
issue to be decided in the election is: What is best for
you-union or union free [?]." The employees are then
assured that they will vote by secret ballot.
Paragraph 4 states that there are no guarantees of
what the employees will "end up with" through the
process of collective bargaining and:
The law only says that the company and the union
must negotiate in good faith, but neither side is re-
quired to budge on any of its positions. How long
the negotiations will last-and whether an agree-
ment will ever be reached on all the terms of the
contract-is anyone's guess.
The paragraph continues that if there is a deadlock the
Company can put into effect its last offer, "whether that
offer happens to be better or worse than what the em-
ployees had before" and that the Union is then free to
call the employees on a strike.
Paragraph 5 of the speech states that it is impossible to
predict the outcome of "good faith negotiations" and
that just because the Union achieved or failed to achieve
objectives at the plants of other employers "doesn't nec-
essarily mean that Stevens would do the same thing."
The other employers named were "Cone Mills or
Lowenstein or Fieldcrest."
Paragraph 6 of the speech states that the Union had
won an election at Respondent's Roanoke Rapids, North
Carolina plant and thereafter the Union initiated a boy-
cott which "was to 'wipe out' J. P. Stevens." The speech
states the objective of the boycott was that: "Stevens
would be brought to its knees like Farah Manufacturing
was a few years before."
Paragraph 7 states that the Union won an election at
the hundred-employee High Point, North Carolina plant
but the results were still being contested. The paragraph
also mentions an election at which the Union won a
"three vote margin" at Respondent's Allendale, South
Carolina plant.
Paragraph 8 states that the ultimate outcomes at High
Point and Allendale have little to do with the employees
at Tifton because as the union announced shortly after
the High Point election, "even if the union finally wins
there, those employees will simply be joined to the
workers in Roanoke Rapids in negotiations. It is Roa-
noke Rapids that has been, and will continue to be, the
central focus of this union's attention."
Paragraph 9 state that the employees should therefore
look to see if, had they been represented by the Union at
the same time that the Roanoke Rapids employees had
been represented: "How would things have stacked up
for you in comparison to how you have done without a
union?"
Paragraphs 10 and 11 of the speech, upon which the
Charging Party heavily relies in regard to its contentions
herein, state in full:
First of all, it must be remembered that after
more than five years the parties have still not been
able to reach an agreement at Roanoke Rapids, and
negotiations are still dragging on. There have been
certain legal proceedings which have to do with the
early years of contract bargaining. Those proceed-
ings are still hung up in the court, and the company
is confident that it will ultimately succeed in that
case, since it has always negotiated in complete
good faith at Roanoke Rapids. However, only time
will tell whether the company is correct in this
belief. In any event, the legal proceedings only deal
with the negotiations from the late 1974 through
late 1976, and there are no lawsuits which bring
into question the company's good faith in contract
negotiations in more recent years. In fact, on sever-
al occasions the NLRB has ruled that the company
has bargained legally on various items since 1976.
Let's first look at some of the things the union
organizers have said about Roanoke Rapids. One of
the things they said was that Roanoke Rapids em-
ployees don't have to pay union dues yet. But in
saying this, the union organizers seem to be trying
to lead you to believe that the union has not cost
Roanoke Rapids employees anything. As we shall
see shortly, this is not true. Roanoke Rapids em-
ployees have paid a high price for letting some
union leaders in New York take control of their
working lives.
Paragraph 12 refers to a union claim that a grievance
procedure negotiated at Roanoke Rapids has "done a lot
of good." The text calls this claim a joke and states that
the grievance procedure provided no job security for the
employees in that there are 700 fewer employees than
when the Union was certified at Roanoke Rapids and at
that plant "239 employees [had been] discharged for
cause," and the Union has gotten none of their jobs back.
Paragraph 13 begins:
Another thing the union organizers have said is that
at Roanoke Rapids "We've got it all." So let's look
at what the employees at Roanoke Rapids do, and
do not, have.
The text then compares wage differentials showing that
the average annual wage at Respondent's Tifton plant is
greater by $734.40, based on a 40-hour week, and adds,
"That, in itself, is a high price to pay for union represen-
tation." Then the text compares certain specific wage
rates for specific jobs noting that employees earn as
much as 51 cents per hour less at Roanoke Rapids than
at Tifton.
Paragraph 14 discusses the issue of wage increases. It
states that Tifton employees had received a 10-percent
wage increase during the year but the Roanoke Rapids
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees had received none. It points out that at Roa-
noke Rapids Respondent had offered them an 8-1/2-per-
cent increase "if and when the contract was ever agreed
upon" and that their proposed increase "would not be
granted retroactively." The paragraph concludes that the
Union rejected the offer "out of hand" and that the
Union admitted that it had called a meeting to vote on
the issue but not enough people had attended.
Paragraph 15 states that the only reason the employees
are not getting their wage increase is that the Union will
not agree to a contract because it would then have to
give up its national boycott against Stevens and con-
cludes: ". . . there has been no general wage increase at
Roanoke Rapids this year-because the union leaders in
New York said there would not be."
Paragraph 16 begins: "Let's look for a moment at
where you would be if you had been joined with the Ro-
anoke Rapids employees, like the union wants you to be.
Fixers at Tifton would still be paid $5.28 per hour."
Then are listed 12 other job classifications and their
wage rates the employees would still be receiving. The
paragraph concludes: "This is why we said earlier that
even though Roanoke Rapids employees have paid no
union dues yet, the tactics of this union have cost them
money-and plenty of it."
Paragraph 17 begins: "If this union had done to you
the same thing it did to Roanoke Rapids employees, the
wage loss you would have already suffered would be
staggering." The paragraph continues that on the aver-
age the employees would have lost $368.40 in wages and
would continue to lose at the rate of $16.80 per week in
the weeks ahead because: ". . . this union continues to
refuse to get down to business at the bargaining table at
Roanoke Rapids." The paragraph concludes: "These
wages would have been lost forever, because it didn't
suit the union leaders in New York to give up on their
national boycott and agree to the terms of a fairly nego-
tiated contract."
Paragraph 18 begins: "But so much for wages. What
about fringe benefits? What has the union done for Roa-
noke Rapids employees? The answer is absolutely noth-
ing." The remainder of the paragraph then lists the fol-
lowing fringe benefits stating after each that they are
identical to what the employees have at Tifton: vacations
and vacation pay, funeral leave policy, jury duty supple-
ment, educational assistance, overtime premiums and a
Christmas gift program, life insurance, accidental death
and dismemberment insurance, and hospitalization. The
paragraph concludes: "These benefits are the same ones
you are guaranteed in the group insurance booklet you
were provided some time ago."
Paragraph 19 states that the pension plan at Roanoke
Rapids and Tifton is the same and that the Union has
been told that no improvements in the pension at Roa-
noke Rapids will be placed into effect, even though im-
provements are made at unrepresented plants, "unless
and until the union leaders in New York sign a complete
contract-which they refuse to do."
Paragraph 20 states that: "When the union says 'we've
got it all' at Roanoke Rapids, you've got to wonder who
they think they're kidding." The paragraph continues:
The sad fact of Roanoke Rapids is that the union
has hurt the employees at that location, despite the
fact that the company has been pressuring the union
to go to the bargaining table and get a reasonable
agreement.
The text continues that Respondent has an "open mind
at Roanoke Rapids. It does not want to penalize the
workers at Roanoke Rapids." The text continues on to
blame the Union in the entirety for the failure to reach
agreement at Roanoke Rapids.
Paragraph 21 states that Respondent is refusing to
agree to arbitration at Roanoke Rapids, but the primary
dispute between the parties is checkoff. The text states
that Respondent would agree to checkoff if the employ-
ees could revoke their authorization at any time but the
Union is refusing to agree to that.
Paragraph 22 states that the Union is being unreason-
able in its position on seniority provisions at Roanoke
Rapids and: ". . . there is still no job bidding procedure
at Roanoke Rapids."
Paragraph 23 states in full:
The truth is that having this union act as negotiator
has hurt Roanoke Rapids employees. It has cost
them-and continues to cost them-thousands of
dollars in lost wages. It has denied them the oppor-
tunity to gain promotions to better paying jobs by
refusing to agree to a plantwide seniority system
and a fair bidding procedure. And it has placed Ro-
anoke Rapids employees in the position where they
cannot hope for improvements in their pension plan
or other fringe benefits-because to do so would re-
quire the union to put the employees' interest ahead
of the union's interest by agreeing to a complete
contract and giving up on its boycott. And this the
union will not do.
Paragraph 24 states that in its handbills the Union is
claiming things have gotten better for the employees at
Roanoke Rapids since the Union has been selected as the
collective-bargaining agent. "And that is one of the most
vicious lies this union has ever told any Stevens employ-
ee." The paragraph states that employees had petitioned
to get rid of the Union at Roanoke Rapids but the peti-
tions had been dismissed by the NLRB; it further claims
that the Union actually does not continue to represent a
majority of the employees at Roanoke Rapids.
Paragraph 25 follows: "Once a union gets its claws
into you, it doesn't let go. Roanoke Rapids is living
proof of that."
Paragraph 26 calls the Union a "do nothing" union
and continues: "Its organizers talk about all the great
things they are going to do, but the fact remains that this
union's promises never come true. The only thing that
comes true with this union is that it costs you money."
The paragraph refers to jobs that have been lost at
Farrah Manufacturing and at Roanoke Rapids and con-
cludes: "The employees suffer, because what is important
to the union is not what is important to the employees."
Paragraphs 27, 28, and 29 quote persons directly or
tangentially involved in the Roanoke Rapids organiza-
22
J. P. STEVENS & CO.
tional efforts. Each of these persons indicates that the
effort has done the employees no good.
Paragraph 30 states that the issue before the employees
is whether they want to be joined with the Roanoke
Rapids employees in having the Union be their repre-
sentative and:
Do you want to place your future in the hands of
some New York union leaders who are almost in-
sanely preoccupied with "wiping out" the company
you work for?
The text continues that if the Union wins it will be hard
to decertify the Union but if the employees vote "no"
they can: ". . . give Billy Smith and Bob Case and your-
self a fair chance to make Tifton a better place to work."
Paragraph 31, the final paragraph of the text, states
that if the Union is rejected it would end dissension
among the employees: "But if a majority of the employ-
ees in this plant vote for the union, the union story will
only have begun."
At the conclusion of the slide presentation Addis gave
his speech. Its text in the entirety is as follows:
Before we take any questions, I would like to
read a brief statement.
Recently, the union distributed a leaflet here
which talked about certain proposals the company
has made in the Roanoke Rapids negotiations relat-
ing to improvements in the pension plan. As a
result, numerous employees have approached their
supervisors about the company's intention to amend
the pension plan. I regret that the union has seen fit
to inject this issue into the Tifton campaign, but
now that it has I feel compelled to set the record
straight.
Several weeks ago the company posted notices at
nonunion plants telling the employees that the com-
pany was going to make certain changes in the
hourly pension plan. The employees at those plants
will be provided with the details of those changes.
The company has offered these changes to Roanoke
Rapids employees if and when the union agrees to
all the terms of a complete collective bargaining
agreement. In other words, the company has of-
fered the union the same conditions on pension
changes it offered them on wages this year. Under
the company's offer employees at Roanoke Rapids
will not receive the pension changes unless and
until a complete contract is signed. Frankly, we are
not optimistic that the union's bargaining strategy at
Roanoke Rapids will change, but the offer has been
made by the company in good faith.
The bottom line is that if the union gets in here
at Tifton, the company will negotiate with the
union about pensions. If the union is voted out at
Tifton, the company will be free to deal with you
directly.
The floor is open for questions. I don't have any-
thing to hide. Stevens doesn't have anything to
hide. We will either give you a truthful answer to
your question, or we will get you one. The only ex-
ception is: this company cannot legally talk to you
about any future plans of the company for Tifton.
We cannot make any promises.
Conclusions on Smith-Addis Presentation
As noted the General Counsel did not submit a brief.
The Charging Party's brief, pages 74 and 75, advances
the following theory of a violation regarding Smith's
speech and the slide presentation:
Respondent's conduct in using the denial of the
Roanoke Rapids wage increase to chill union activi-
ty in Tifton is comparable to that found in Textile
Workers Union of America v. Darlington Mfg. Co.,
380 U.S. 263 (1965). In Darlingron, the Court held
that the employer was privileged to close the plant
following the union election victory. The Supreme
Court went on to hold, however, that if the Dar-
lington plant closing was thereafter used by the
parent company to chill union activity in other non-
union facilities, with the contemplation that the
plant closing would foreseeably have such effect,
the chilling in the other plants made the closing of
the Darlington plant illegal.
Similarly, in the case of Roanoke Rapids the
Board refused to issue a complaint when Stevens
adopted the bargaining tactic of withholding the
annual wage increase. However, once Stevens used
its withholding of the wage increase at Roanoke
Rapids to chill union activity at Tifton, another lo-
cation in its multi-plant operation, the reasoning of
the Court in Darlington compels the conclusion that
both the denial of the wage increase in Roanoke
Rapids and the subsequent publication of this action
in order to chill unionism at Tifton were illegal.
In sum, the use of the withheld wage increase in
Roanoke Rapids to chill union activity in Tifton
constitutes a pervasive 8(a)(1) violation in Tifton.
Although no analysis is expressed regarding the al-
leged threat by Addis to withhold pensions unlawfully,
the Charging Party's argument would presumably be the
same on that issue.
Of course, the legality of the withholding of wage in-
creases at Roanoke Rapids is not an issue before me. But,
as the Charging Party's brief acknowledges, no com-
plaint has issued on withholding of wage increases in Ro-
anoke Rapids and it must necessarily be assumed that
Respondent's action in so doing was lawful. There is no
case authority for extending Darlington as the Charging
Party would do, and generally a "threat" to do a legal
act is protected. 1 9
The Smith-Addis presentation, taken as a whole, states
that collective bargaining has been futile for the Roanoke
Rapids employees and strongly implies that the employ-
ees at Tifton would achieve the same result if they se-
lected the Union as their collective-bargaining represent-
ative. There is further a plain implication that Respond-
ent would withhold pension benefits at Tifton in the
19 The exception, of course, is that a threat to close a plant because of
union activity is unlawful even if there could be no intent to chill organi-
zational attempts elsewhere were the threat to be carried out.
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same manner that it had withheld pension benefits and
wages at Roanoke Rapids. But the presentation does not
state anywhere that the cause of the futility, and the im-
plied wage and pension withholdings, would be because
of action of Respondent; in fact, it says that Respondent
will engage in only lawful tactics at the bargaining table.
The source of past futility at Roanoke Rapids and im-
plied future futility at Tifton is depicted to be the inane
intransigence of the Union. Respondent is telling the em-
ployees that the Union's real objective is to destroy, by
boycott, their employer. Whether any employee would
believe that is, at least, problematical. But whether it is
true or not, and whether the employees would believe it
or not, does not determine legality. There is no threat
that Respondent would do anything unlawful; there is
only an implication that it would employ the technique
of withholding wage, retirement, and other benefits until
a complete agreement is reached. Since this technique is
lawful, the presentation is protected by Section 8(c) of
the Act as I so find and conclude. Accordingly, I shall
recommend that paragraphs 9 and 14 of the complaint be
dismissed. 20
I. Threat by Johnston in a Speech
On December 18, Company Vice President Donald
Johnston made a speech to approximately 420 of the em-
ployees of the two plants in three separate meetings. The
complaint paragraphs 10 and 13 allege that in these meet-
ings Johnston threatened Respondent's employees "with
a loss of their right to individually talk to management
about grievances if they selected the Union as their col-
lective-bargaining representative ... " and further that
Johnston "promised [Respondent's] employees increased
benefits if the employees rejected the Union as their col-
lective bargaining representative."
Johnston's speech is approximately 2000 words long.
Near the beginning of the speech Johnston states that:
No matter what these union organizers are telling
you, voting this union in would be giving the union
the right to be your exclusive spokesman. You would
no longer be in a position to represent and speak for
yourself, and the representation you would really be
committing yourself to is not representation by the
union organizers who have been coming into your
homes so much lately. These people will be gone
after the election. Your real representation will be
by union stewards ... ."
As stated above in the analysis of the speech by Bob
Case, this comment is protected under Section 8(c) of
the Act. TRW-United Greenfield Div., supra. According-
ly, I shall recommend dismissal of this allegation of the
complaint.
The allegation that promises of benefits were made
during the speech by Johnston apparently relate to the
following passages found near the end of Johnston's
speech:
20 Airstream, Div. of Beatrice Food Co., 192 NLRB 868 (1971); Mercy-
Memorial Hospital Corp., 231 NLRB 1108, 1121-22 (1977).
In conclusion, let me make another important
point. This company is not going to forget Tifton
after the election. J. P. Stevens-and I personally-
have a commitment to the people working in this
plant. And we intend to carry out that commitment.
This company is proud of the employees at the
Tifton plants. We plan to do the best job we can to
satisfy your needs and to make you secure in your
jobs.
Just this final word. These organizers have come
from all over the country. Most of them you had
never seen until a few years ago. After the election
is over, you may never see them again. On the
other hand, your local management lives in this
area; they take part in this community and they are
responsible to you and this community.
Obviously, there is no express promise in these passages
and no implied promise of benefits should the employees
reject the Union can be defined. Accordingly, I shall
also recommend that this allegation of the complaint be
dismissed.
J. Threat in a Circular and Notice to Deny a
Statutory Right to Reinstatement to Economic Strikers
Employee Linda M. Marchant testified that on De-
cember 12 Supervisor Edwina Walker distributed to her
a three-page circular dated "12-11-79," which has the
introductory sentence: "Listed below are answers to the
questions most frequently asked last week in our meet-
ings." Then follows 11 numbered questions and answers,
the second of which is:
Q. If the Union is voted in and calls a strike over
wages, benefits or working conditions, can I lose
my job if I do not come to work?
A. Yes. If the company closes down during a
strike, there will be no work available for anyone.
If the company chooses to operate this plant in the
event of a strike, the company will permanently re-
place these employees who do not report for work.
If you have been permanently replaced, you will
not get your job back when the strike ends.
The parties stipulated that on December 13 Respond-
ent posted the following notice on its employee bulletin
board:
STRIKERS
I LOSE THEIR WAGES.
2 CANNOT COLLECT UNEMPLOYMENT
COMPENSATION.
3 CAN BE PERMANENTLY REPLACED IN
STRIKES OVER UNION ECONOMIC DE-
MANDS.
4 DO NOT HAVE A RIGHT TO THEIR JOB
AFTER THE STRIKE IF PERMANENTLY RE-
PLACED.
24
J. P. STEVENS & CO.
The complaint paragraph 18 alleges that by the circu-
lar and notice Respondent "threatened its employees that
they would be permanently replaced during an economic
strike and those employees who had been permanently
replaced would have no right to their jobs after the
strike."
Plant Manager Billy Smith testified that on December
17 the following notice was posted on the bulletin boards
of both plants:
Q. If the ACTWU calls me out on an economic
strike, can I lose my job?
A. Yes. If the ACTWU calls you out on an eco-
nomic strike, you cannot be fired for striking but you
can be permanently replaced. The company has a
legal right to operate the plant during a strike by
hiring permanent replacements for striking workers.
When the strike is over, the company has no legal
obligation to discharge those employees hired to fill
those jobs left vacant by strikers. At the end of the
strike, you cannot get your job back from your per-
manent replacement if he is still working. [Emphasis
in original.]
Since employees have a right to be reinstated upon de-
parture of permanent replacements2 ' the circular distrib-
uted on December 12 and notice posted on December 13
contained misstatements of the employees' Section 7
rights. Such misstatements have a coercive impact on
employee participation in protected concerted activity
and constitute an impermissible threat to the right of em-
ployees to engage in protected concerted activity. Piezo
Technology, Inc., 253 NLRB 900 (1980). Therefore a vio-
lation of Section 8(a)(1) must be found unless Respond-
ent's notice posted December 17 constitutes an effective
repudiation of the statements of December 12 and 13, as
Respondent contends. I find that it does not. The notice
of December 17 does not expressly disavow the content
of the prior notices. Moreover, the underscoring in the
December 17 notice of the words "but you can be per-
manently replaced" seems to reemphasize the inexorable
impact of the prior notices. Finally, the only disavowal,
if there can be said to be one, is one only made implicitly
in the December 17 notice. The qualifier "if he is still
working" puts the burden on the reading employee to
figure out that if the permanent replacement is not still
working an economic striker could get his job back. Re-
quiring this deductive process is hardly a repudiation of
the prior explicit statement that the employees could for-
ever lose their jobs simply because they engage in an
economic strike.
Accordingly, I find that, in the question and answer
circular issued December 12 and the notice posted De-
cember 13, Respondent violated Section 8(a)(1) of the
Act by misstating the employees' rights of continued em-
ployment should they engage in an economic strike.
As amended at trial, the complaint alleges that em-
ployees were threatened with loss of benefits by the fol-
lowing question and answer contained in the circular dis-
21 See Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 979 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970), for a full discussion of the
employment rights of economic strikers.
tributed to employee Marchant on December 12. The
question and answer on which this allegation is based is:
Q. Since there is no contract at Roanoke Rapids,
has this union cost those employees anything?
A. Yes. Since July 1979, each employee has lost
an average of more than $57 a month and will con-
tinue to do so until a contract is signed.
The Union does not contest the figures contained in the
answer to this posed question. Respondent has not been
found guilty of an unfair labor practice by withholding
wages or wage increases from the employees at Roanoke
Rapids; therefore, the response must be taken as protect-
ed argument. As such, Respondent cannot be said to
have violated Section 8(a)(1) of the Act by making the
statement; accordingly, I shall recommend dismissal of
this allegation of the complaint.
K. Threat by McDaniel to Jackson
The complaint paragraph 19 alleges that on or about
December 13 McDaniel threatened employees that "Re-
spondent would close the plants if the employees joined
or engaged in activities on behalf of the Union."
In support of this contention the General Counsel pre-
sented the testimony of employee Robert Lee Jackson
who is a dryer operator at plant 2. In December, Jack-
son reported immediately to Shift Supervisor Russell
Rentz who, in turn, reported to Department Manager
Thomas McDaniel. Jackson testified that a week before
the election (which had been scheduled for December
20) he approached McDaniel and employee Frank Nixon
who were seated at a smoking bench. A conversation be-
tween Nixon and McDaniel was ongoing at the time
Jackson approached them. On direct examination Jack-
son was asked what portion of the conversation he heard
and Jackson testified:
Mr. McDaniel told Frank Nixon that . . . the
Union could not compare J. P. Stevens with the
Steelworkers Union, because if they did, Stevens
would have to close down. He said that if Frank
Nixon went downtown and bought a pair of pants
or a shirt, he wouldn't pay any more than 12-S-10
or $12 for a suit, a pair of pants or a shirt, and if he
went out to Sears and bought a steel belted tire,
that he would pay $100 or more for a tire, and if
Stevens had to pay that kind of money, they would
have to go out of business.
On cross-examination Jackson testified that he could not
remember McDaniel saying anything about going out of
business and could only recall his saying that Respondent
"would have to close down." Jackson further acknowl-
edged on cross-examination that, the night before
McDaniel's comment was made to Nixon, the Union had
distributed handbills which were about "Firestone and
the Steelworkers," but he could not remember what was
on the handbill other than to say that it was "something
like" a comparison of wage rates at Firestone, and the
wage rates of employees who work for J. P. Stevens in
Tifton.
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDaniel testified that he did have a conversation
with Nixon on the topic of comparative wages, but
could not recall that Jackson was present. According to
McDaniel:
We were talking about the handout that the Union
had given on wages, comparing our wages with
other industries, like steel, auto and rubber. And I
was saying that I thought it was a little misleading;
that if he had to pay that kind of wage that people
couldn't buy our clothes. And Frank says, yeah,
you're right. And that was the extent of it.
Nixon was called by Respondent but testified that he
could not remember any conversation touching on wage
rates or wage comparisons. He testified that he was sure
that McDaniel never threatened that Respondent would
go out of business.
Nixon was too eager to testify that McDaniel had
never stated to him that Respondent might go out of
business and I find him totally incredible in his statement
that he could remember no conversation at all about
wage rates. However, this does not help resolve the
issue. I found Jackson the more credible witness than
McDaniel. The fact that he could recall on cross-exami-
nation the "going out of business" statement that he had
made on direct examination does not vitiate his credibil-
ity. I find, as Jackson testified on cross-examination, that
McDaniel stated that if Respondent had to pay wages
equivalent to steelworkers or rubber workers in the area
Respondent "have to close down."
It is undisputed that McDaniel's remark was made in
response to a leaflet produced by the Union. Although
the leaflet was not placed in evidence, it is quite apparent
that McDaniel and Jackson were under the impression
that the Union was touting wages equivalent to those
paid by other employers in the area and those wages
were substantially higher than those paid by Respondent.
This was not an unqualified threat of plant closure upon
unionization; 22 rather, it was a response tailored specifi-
cally to an apparent boast or claim by the Union de-
signed to ehcit the employees' votes. This type of state-
ment has been permitted by the Board as legitimate cam-
paign dialogue, and I find that by the statement McDan-
iel did not violate Section 8(a)(1) of the Act, and shall
accordingly recommend that this allegation of the com-
plaint be dismissed. 2 3
L. Coercion of and Discrimination Against Lewis Hall
The complaint paragraph 21 alleges that on or about
December 20 Respondent "prohibited its employees from
distributing Union leaflets to their fellow employees
during non-working time in non-working areas." The
complaint paragraph 22 further alleges that on the same
day Respondent issued an oral warning to employee
Lewis Hall because of his union activities. These allega-
tions are based on the same incident; the prohibition of
distribution is alleged to be a violation of Section 8(a)(1)
22 Cf Patsy Bee. Inc., 249 NLRB 976 (1980).
23 Federal Paper Board Co.. 206 NLRB 681 (1973), and cases cited
therein.
and the discipline of Hall is alleged to be a violation of
Section 8(a)(3) and (1).
At all times material herein, Respondent has main-
tained the following valid no-solicitation and no-distribu-
tion rules:
NOTICE TO ALL EMPLOYEES
The following rules govern all solicitations and dis-
tributions on Company property. These rules super-
sede, revoke and cancel any and all previous rules
and/or understandings on these subjects.
As used in these rules the term "working time"
refers to the time that an employee is working or is
expected to be working. The term includes both the
"working time" of the soliciting/distributing em-
ployee to whom the solititation/distribution is di-
rected. The term "non-working time" refers to
breaktime, lunchtime and other times that an em-
ployee is not expected to be working.
1. EMPLOYEE SOLICITATION
(a) Solicitation is permitted during employees
non-working time. (For example, employees can
solicit for outside activities, can solicit for or
against a union, and can obtain signatures on
union cards during non-working time.)
(b) Solicitation is prohibited during employees'
working time. (For example, employees cannot
solicit for outside activities, cannot solicit for or
against a union and cannot obtain signatures on
union cards during working time.)
2. EMPLOYEE DISTRIBUTION
(a) Distribution is permitted during employees'
non-working time but only in non-working areas.
(For example, employees can distribute literature
of outside activities and organizations and can
distribute pro-union and anti-union literature in
this situation.)
(b) Distribution is prohibited during employ-
ees' working time in all areas. (For example, em-
ployees cannot distribute literature of outside ac-
tivities and organizations, and cannot distribute
pro-union and anti-union literature in this situa-
tion.)
(c) Distribution is prohibited during both
working time and non-working time in working
areas.
3. NON-EMPLOYEE SOLICITATION AND
DISTRIBUTION
Solicitation and distribution by non-employees on
Company property is prohibited.
On December 19 employee Floyd Rockmore was em-
ployed on the "C" (4 p.m. to midnight) shift and Lewis
Hall was employed by Respondent on the "A" (midnight
to 8 a.m.) shift. Hall was under the immediate supervi-
sion of Shift Supervisor Charlie Cook and Rockmore
was under the immediate supervision of Shift Supervisor
Robert Tucker. Both Hall and Rockmore were, at the
26
J. P. STEVENS & CO.
time, members of the Union's organizational committee
and had been active on behalf of the Union.
A third employee involved in this incident was Henry
(Junior) Braggs. Braggs regularly worked the A shift
with Hall, but on this particular night he had been called
in early to work part of the C shift. Employees who
worked more than one shift were entitled to a break near
the end of the first shift upon which they worked before
beginning an immediately succeeding shift.
On December 19, Hall arrived at work about 15 min-
utes early. As he approached the plant, he was handed
about four union handbills by someone who was leaflet-
ing the gate. Hall walked onto Respondent's property
and to a dock, or loading area, which has an entrance to
the building. On this dock were parked several forklifts.
On one of the forklifts was Braggs who was sitting
around doing nothing except, possibly, watching other
employees like Hall to come to work. Braggs was taking
his break before beginning the A shift.24
The forklift area had never been designated by Re-
spondent as a break area; but that is the way it some-
times worked out. To what extent A and C shift employ-
ees had used the forklift area to take breaks was in dis-
pute. (The forklift area was very busy during the B shift
and, apparently, no one has tried to use that area to take
a break in during that shift.) The most that can be said is
that until December 19 the utilization of the forklift
parking area as a break area had been sporadic.
As Hall passed by Braggs he handed Braggs a union
handbill. Braggs took it without anything being said. Ob-
serving this act of distribution was Supervisor Cook.
Hall proceeded into the plant building with handbills
still in hand. Hall testified that when it was still a few
minutes before the A shift was to begin, he proceeded to
a smoking bench where he handed his last handbill to
employee Floyd Rockmore who came over to the bench
to get it.
Rockmore was originally called by the General Coun-
sel to identify some union authorization cards he had so-
licited; the General Counsel did not ask him about the
receipt of the handbill from Hall. Respondent took
Rockmore on direct examination and asked about the in-
cident. Rockmore, directly contrary to Hall, testified that
he was about 8 feet away from the smoking bench, talk-
ing to Supervisor Tucker about a work-related problem,
when Hall walked up and handed him a handbill. Super-
visor Tucker testified for Respondent in essentially
accord with Rockmore. 2 5
The following day Hall was given a verbal counseling
for both acts of distribution which the General Counsel
alleges to be a verbal warning issued in violation of Sec-
tion 8(a)(3) as well as an unlawful prohibition of the pro-
" I disagree with the statement in Respondent's brief that the record
shows that Braggs was "on duty" or "on work time." Braggs was a die-
house operator; he did not use a forklift in his work; and he was not rep-
rimanded for having been away from his assigned area, although Supervi-
sor Cook saw the Hall-Braggs exchange described herein.
ma In its brief, the Charging Party argues that Rockmore and Tucker
should be discredited because of differences in the recitation of a profane
utterance made by Rockmore when he received the handbill and the
slight difference in their testimony as to the precise position of the men
involved. I find these discrepancies are too minimal to be significant.
tected activity of distributing literature in nonworking
areas on nonworking time.
In its brief the Charging Party cites Rockingham Sleep-
wear, 188 NLRB 698 (1971), and Oak Apparel, 218
NLRB 701 (1975), in support of this allegation. In these
cases, under the rationale of Stoddard-Quirk Mfg. Co.,
138 NLRB 615 (1962), the Board found unlawful a pro-
hibition of the circulation of literature in work areas. In
both cases the violation was premised upon the fact that
the circulations took place only at employee lunchtime;
and although the area was ordinarily a work area, during
lunchbreaks employees used the work areas involved to
eat their lunch because there was no other place avail-
able for that purpose.
The use of the forklift parking section of the dock as a
break area is not comparable to the use of work areas in-
volved in Rockingham Sleepwear and Oak Apparel. In the
first place, the employees in those cases had no place to
take their breaks or eat their lunches other than in the
areas which were also regularly used as work areas. In
the second place, specific times for lunch and break ac-
tivity were set aside each day by the employers so that
the areas involved could be used for breaks and lunch
during those periods. Here, the forklift parking area was
used as a break area only at sporadic intervals and at in-
determinate times of the day. Since the distribution of
the handbill from Hall to Braggs occurred in a working
area, the activity was not protected, and the verbal
warning issued to Hall because of activity is not a viola-
tion of the Act. Accordingly, I shall recommend that the
allegation in regard to the Hall-Braggs distribution be
dismissed.
I found Rockmore and Tucker credible in their testi-
mony that they were approached by Hall in a work area,
and at a time when Rockmore was still working, when
the handbill was distributed by Hall to Rockmore. Since
this distribution also fell within the ambit of Respond-
ent's valid no-distribution rule, I shall further recommend
that the allegation of the complaint based on this distri-
bution also be dismissed. 26
M. Harassment of Joe Lewis Robinson
At Respondent's Tifton plant 1 there are 168 looms in
the weaving department. On each shift there are four
"fixers" who make repairs to the looms as needed. When
such repairs are needed, a red mechanical flag can be
raised by the weaver, the shift supervisor, the depart-
ment head (if he is working on a shift in which the need
arises and he notices it), or an inspector. Each of the
fixers is assigned an area of the weaving department and
if a flag is raised on one of "his" machines, he is sup-
posed to go and fix it.
Weavers, who tend several looms on a shift, are paid
on incentive basis. Therefore, when a loom stops they
26 The complaint paragraph 20 also alleges that the incidents of De-
cember 20 show that Respondent: "Disparately enforced its no-distribu-
tion rule by permitting non-union employees to violate said rule, while
prohibiting similar distribution by pro-union employees." There is no evi-
dence that Respondent knowingly permitted nonunion employees to vio-
late its no-distribution rule, and I accordingly shall recommend that this
allegation of the complaint also be dismissed
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are losing money. If a machine is stopped, they can write
out "down time" tickets. If the machine is stopped for
repairs for more than 15 minutes, this ticket is initialed
by the fixer, it is turned in to management, and it is used
to figure compensation for the weavers who would oth-
erwise lose all earnings on that machine while it is
stopped. (Supervisor Griffith and employee Goodman
both testified that the weavers are supposed to write
downtime tickets when a machine is stopped, whether or
not it is apparent that the repairs will take more than 15
minutes.)
One problem when weaving cloth is that the machines
sometimes leave dangling threads at the edges. These
threads, usually less than an inch long, are referred to in
the plant as "tails." When the machine is making tails, it
is, strictly speaking, malfunctioning. But not every time a
machine makes tails is the fixer summoned by the
"throwing" of a red flag. If the tails are not too numer-
ous, the production is continued and the tails are elimi-
nated in a repair process in the mending department.
Therefore, when a machine is making tails it is a matter
of discretion if the production is to be stopped for ma-
chine repair.
On December 5, employee Joe Lewis Robinson was
employed as a fixer on the A (midnight) shift. The other
fixers on the shift were employees Randall Simpson,
Donny Culpepper, and Willie Halloway. The shift super-
visor was Edward Griffith and the department manager
(overseer) was Cliff Holbrook. There were two cloth in-
spectors on that shift, one of whom was Melinda Heart-
ly.
Robinson regularly wore a union T-shirt and a union
organizational committee button. Griffith was asked on
cross-examination if he knew Robinson and weaver Ben
Fowler were union supporters and he replied, "Yes, sir.
They wore buttons." Therefore Respondent had knowl-
edge of Robinson's union membership.2 7
Robinson testified that on the night of December 5 he
saw employees Mobley and Sirmans talking to Giffith di-
rectly outside Griffith's office and Griffith was showing
them "some kind of paper." According to Robinson, Sir-
mans and Mobley were "openly against" the Union. Ac-
cording to Robinson:
And they was all up there and so I went to see
what they was talking about, and I walked up there
and Ed [Griffith] had a paper so he put it in his
pocket .... And walked off, so I sort of turned,
you know, and went to writing down on a little pad
I had in my pocket. I kept a little notebook in my
pocket. I kept a little notebook in my pocket where
I kept my notes at, and I turned and made like I
was writing something ....
The notebook, which was not offered into evidence, was,
according to Robinson, notes of things related to work
and relating to the Union that he observed, and he kept
it on his person at all times when working. It is the con-
"7 Robinson also solicited seven authorization cards for the Union, but
there is no evidence of any employer knowlege of that activity. Also
Robinson testified under the Act in J. P. Sevens & Co., 240 NLRB 33
(1979), but there is no 8(a)(4) allegation in the complaint and no evidence
that the events herein are related to that testimony.
tention of the Charging Party (and apparently the Gen-
eral Counsel) that it was Griffith's observation of Robin-
son writing, or pretending to write, in his notebook that
precipitated what happened next. Just what did happen
next is in sharp dispute.
Robinson testified that "it wasn't too much longer"
after he pretended to be writing something in his note-
book that Griffith went to Robinson's looms and threw
"three or four flags." Robinson then went to the looms.
As he testified:
Q. What did you do after the supervisor Grif-
fin-Griffith-threw the flags on your looms?
A. Well, I went up, checked, and I couldn't
really see nothing wrong with them, so I lifted the
flags and let them back down and walked off. If I
seed something wrong, I would fix it.
Q. Were the machines functioning properly?
A. To my knowledge they were.
Robinson did testify that he watched the machines for
about 10 minutes to make sure they were functioning
correctly.
Robinson testified that on the night (actually early
morning) of December 6 Griffith threw "twelve or fif-
teen" flags in his section. He was asked on direct:
Q. Did you repair the machines?
A. Yes, sir, if they needed it, but I didn't really
see none that needed repair, no [more] normally
than they usually do.
Robinson testified that of all the machines on which flags
were thrown, only one had a downtime ticket written
up, and that one had two. He noted that a machine
across the aisle, which was assigned to another fixer, was
similarly malfunctioning and it was not flagged. On the
following morning when Department Manager Holbrook
arrived, Robinson approached him in the supervisor's
office. According to Robinson:
I asked him if I was doing my job to suit him and
did he have any objection to the way I was doing
my job or whatever, and he told me no, not that he
knowed of, but I had one or two machines to run
out of order, and we thought we had cleared that
up .... I asked him, "Do you know why the su-
pervisor's raising all these flags on me?" and he
went to explain to me how he instructed all the su-
pervisors if they see something wrong to see to it to
get it fixed, and so I said, "Well," I said, "You
throw them all on just one fixer?" I said, "Why not
all of them?" He said well, he instructed the super-
visors daily to do that, said he himself had raised a
few flags ....
Robinson asked Holbrook to step out to the weaving
room floor. There the men inspected two machines, one
in Robinson's section and another in the section of fixer
Simpson. According to Robinson, both machines were
malfunctioning. According to Robinson:
I said, "Now do you think this one needs flagging?"
He said, "Yeah, it wouldn't hurt," and I said, "Well,
28
J. P. STEVENS & CO.
I got a down-time on this machine, and that one
down there, the flag's never been raised on it," and
I said, "That's what I'm trying to get over [to]
you," and he told me that he would talk to Mr.
Griffin [sic] and see.
Holbrook testified for Respondent, and there is no essen-
tial disagreement with the testimony by Robinson about
what was said between those two men. There is no evi-
dence that Holbrook ever said anything to Griffith about
the incident.
Robinson testified that on the morning of December 7
Griffith threw somewhere between two and five flags,
"then things kind of smoothed off."2 8
On cross-examination Robinson was asked which, if
any, of the machines flagged on December 6 by Griffith
were making tails. He replied "probably all of them." He
denied ever putting a flag back down without fixing the
machine, but also testified that on December 6 he fixed
only "about maybe two or three" of the 12 to 15 ma-
chines flagged by Griffith. He explained that those were
the ones "that had been doing the same thing for the
longest [time]."
Former employee Craig Goodman testified that one
night, apparently the night Robinson placed as Decem-
ber 6, he saw Griffith throw between seven and nine
flags on the looms manned by himself and employees
Ben Fowler and Phillip Tillery. Goodman testified that
the fixer for both Tillery and Fowler was Robinson.
Robinson came to fix their looms but 30 minutes later
one of the machines was making tails again. Griffith ap-
peared and, according to Goodman on direct examina-
tion:
Q. Did he say-Did he mention Joe's name?
A. When he first come up, he asked me, he said,
"Did Joe fix these looms?" and I told him, "Yeah,"
and then he asked me did I make any down-time
tickets, and I told him no, because it only took a
minute or two to fix them, and he said, "If that son-
of-a-bitch could fix a loom, he'd be dangerous."
Q. What did he do then Mr. Griffin [sic]?
A. And then he told me, he said, then he says,
"From now on, you start making down-time tickets
because I'm fixing to show you how to straighten
Joe Louis' [sic] ass out."
On cross-examination Goodman admitted that a weav-
ing machine that is making tails is malfunctioning and
flags should be thrown when a machine is malfunction-
ing. He further admitted that he never saw Griffith
throw a flag on a machine that did not need fixing.
Employee Ben Fowler was called to testify by the
General Counsel. According to Fowler, during the night
in question, his looms were in the section of fixer Ran-
dall Simpson. When asked to describe the events in ques-
tion, Fowler testified:
Joe Lewis and I were standing there talking and I
saw Ed Griffith come down this aisle and start flag-
28 Neither the General Counsel nor the Charging Party contended that
the flagging of machines on December 7 was discriminatory.
ging looms. And he flagged about four or five
looms on this aisle. And when he got to my two
looms where Joe Lewis and I were standing, he
walked past us and kept going, and walked into an-
other fixer's section.
According to Fowler none of his machines were in-
volved in this flagging and, in fact, one of his machines
was making tails and not flagged.
Griffith denied ever flagging 12 to 15 machines of
Robinson's during any one shift. He testified that most
he ever threw on one fixer on a shift was three. Griffith
denied ever saying to anyone that Robinson would be
"dangerous" if he could fix a loom or that he instructed
an employee to fill out downtime tickets so that he could
"straighten Joe Louis' [sic] ass out." Griffith testified
about one particular shift, apparently December 6, in
which he had to call Robinson repeatedly to fix a ma-
chine and he was corroborated in this testimony by in-
spector Heartly.
Respondent argues that Goodman should be discredit-
ed because of obvious bias against Respondent. Respond-
ent alludes to the fact that Goodman testified that some
of the flags thrown were on Fowler's machines while
Fowler testified that his machines were not involved.
Respondent also points to the fact that Goodman testi-
fied that supervisors did not throw flags at all, whereas it
is clear from the testimony of all other witnesses that su-
pervisors regularly throw the flags when the machines
are malfunctioning.
Conclusions on Robinson's Treatment
The complaint paragraphs 23 and 24 allege that on
December 6 Respondent: "Harassed its employee, Joe
Lewis Robinson, disparately, and contrary to past prac-
tice, by flagging and preparing down time cards on
looms repaired by said employee." The General Counsel
contended at the hearing that the alleged harassment was
inflicted because Respondent was hostile in general
toward the Union which was embodied in its committee-
men such as Robinson, and further hostile toward Robin-
son in particular because he wrote, or pretended to
write, something in his personal notebook on the morn-
ing of December 5. Because of this animus, the General
Counsel contended at the hearing, and the Charging
Party contends in its brief, that Supervisor Griffith threw
more flags than he otherwise would have thrown on
Robinson's machines and overlooked malfunctions on
other machines serviced by other fixers.
In appraising this contention that Robinson was dis-
criminated against two initial observations must be made.
In the first place, there is no evidence that the comple-
tion of downtime tickets in any way changes the terms
and conditions of employment of the fixers; Robinson
himself testified that whether downtime tickets are com-
pleted has no effect on the fixer. Second, there is no evi-
dence on this record of hostility toward union commit-
teemen in general and no contention that Respondent
had ever before expressed animus toward Robinson's
being a committeeman. In fact, except for two isolated
interrogations and the one misrepresentation of the rights
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of economic strikers, there is no evidence of other unfair
labor practices at the Tifton plant in this record.
Although it was not introduced into evidence, there is
no dispute that Robinson kept a personal notebook on his
person as he worked. Griffith denied ever seeing the
notebook, but acknowledged if he had ever heard of it:
I've just heard employees. You know, I'll be casual-
ly doing something and somebody will come by and
say, Joe Lewis is writing you up, or something like
that. That's the only thing I've ever heard.
When I asked what sort of things he would be doing
when he heard Robinson was writing in his notebook,
Griffith mentioned only work-related activities of his.
Robinson, on the other hand, testified that he wrote in
his notebook work-related notes and notes relating to the
organizational campaign. Since, according to this record,
Robinson was not required to keep any sort of notebook
in the performance of his duties as a fixer, it is safe to
assume that Griffith knew full well that Robinson was
taking notes of things other than those directly relating
to work activities.
I credit Robinson's testimony that on December 5 he
approached Griffith as he was talking to employees
Mobley and Sirmans (both of whom had the reputation
of being against the Union) as they were talking in front
of the supervisor's office, and that he made a pretense of
writing something in his notebook. I further believe, and
find, that almost immediately thereafter, Griffith raised
three or four flags on Robinson's machines. I further find
that Griffith raised several more flags on Robinson's ma-
chines on the morning of December 6. Just how many
were raised on December 6 is conjectural, it was certain-
ly more than on the one machine admitted by Griffith,
but probably less than the "twelve to fifteen" claim by
Robinson. But whatever the number, the flurry of flag-
raisings by Griffith does not make out a violation by
itself.
The raising of three or four flags on Robinson's ma-
chines on December 5 came immediately after the pre-
tense of notebook-writing. It is safe to infer, as I do, that
the pretense caused Griffith to raise the flags at that
time. But that hardly ends the inquiry either.
Was the notebook-writing pretense protected activity?
I believe not. Assuming that Respondent had knowledge
of previous notebook-writing by Robinson but condoned
it, here Robinson was making a pretense of writing. It
was apparently an elaborate one, for it is clear that he
wanted Griffith, Mobley, and Sirmans to note that he
was memoralizing their conference (in a sort of role-re-
versed impression of surveillance activity). Thus, Robin-
son was not engaging in protected concerted activity; he
was game-playing. He was baiting Griffith, and Griffith
responded in kind. Griffith raised three or four flags on
machines which, while making tails and technically mal-
functioning, would have otherwise gone unnoticed.
However, this required Robinson to do nothing more
than watch the machines for about 10 minutes and put
the flags back down. This was not a change in Robin-
son's terms and conditions of employment, was not oner-
ous, and did not constitute discrimination under the Act,
even assuming that the notebook-writing pretense was
protected.
I credit Goodman's testimony that at one point, appar-
ently during the morning of December 6, he was ap-
proached by Griffith and told to make out downtime
tickets every time a machine stops and that Griffith said
he intended to straighten out Robinson. I realize that
Goodman testified that two flags were thrown on Fowl-
er's loom and Fowler testified that his looms, which
were not even in Robinson's section, were not involved
at all. I further realize that Goodman was wrong in
other testimony in which he stated that shift supervisors
rarely, if ever, raise flags on machines. However, Good-
man was a former employee who apparently had nothing
to gain by his testimony, and he otherwise impressed me
favorably.
As I have noted, downtime tickets had no impact on
the terms and conditions of employment of the fixers
such as Robinson. However, the reference to downtime
tickets by Griffith to Goodman was not entirely mean-
ingless. A collection of such tickets could constitute sup-
portive documentation if Respondent did intend to disci-
pline a fixer such as Robinson. Since failure of the incen-
tive-paid weavers to execute the tickets saved Respond-
ent money, and since Griffith immediately connected the
downtime tickets to straightening out Robinson, the in-
ference that future discipline of Robinson is what Grif-
fith had in mind at the time is compelled.
But the discipline or discrimination never came. Rob-
inson was never asked to do anything other than that for
which he was paid.29 All of the machines which were
flagged on December 6, as well as December 5, were
malfunctioning and one was especially bad. Therefore,
even though Griffith passed up at least one machine
(Fowler's and possibly others) which was malfunctioning
on December 6, making sure that Robinson was working
that particular shift does not constitute discrimination
against Robinson as envisioned by the Act (assuming the
activity of feigned note-taking was protected in the first
place).
Accordingly, I shall recommend that the allegation of
the complaint of alleged discrimination by harassment of
Joe Lewis Robinson be dismissed.
Refusal to Bargain
The complaint alleges that since October 21 the Union
has been the representative of the majority of the em-
ployees in an appropriate unit of the 715 production and
maintenance employees of both Tifton plants. While the
General Counsel did not submit a brief, the Charging
Party's brief contends that 366 employees designated the
Union as their collective-bargaining representative by the
execution of valid authorization cards. The Union and
the General Counsel contend that because of the unfair
labor practices committed by Respondent it should be
ordered to bargain with the Union as majority represent-
ative under the authority of the Supreme Court decision
in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and
that its failure to have done so after a request to bargain
29 He was even sent to a training school to learn how to fix the looms.
30
J. P. STEVENS & CO.
was made on October 21 is a violation of Section 8(a)(5)
of the Act. The complaint also alleges as an independent
violation of Section 8(a)(5) Respondent's admitted action
on January 9 in unilaterally implementing changes in the
unit employees' pension plan.
In Gissel, the Court upheld the Board's power to issue
bargaining orders even if the union has not been estab-
lished as the majority representative through the election
processes where the Board finds that the employer in-
volved has engaged in either "outrageous" or "perva-
sive" unfair labor practices that could not be remedied
or "less pervasive practices which nonetheless still have
the tendency to undermine strength and impede the col-
lective bargaining processes." In the latter situation the
Board has the authority to issue a bargaining order, but
only where it finds that "the possibility of erasing the ef-
fects of past practices and of insuring a fair election by
the use of traditional remedies, though present, is slight
and that employee sentiments once expressed through
cards would, on the balance, be better protected by a
bargaining order," 395 U.S. at 613-615.
Assuming that the Union established a majority at any
material time herein, 30 in this case the three violations of
Section 8(a)(1) of the Act were not so egregious as to
preclude the holding of a fair election. The two interro-
gations found herein were not part of a systematic pro-
gram of interrogating employees, nor were they accom-
panied by threats or other statements or conduct in vio-
lation of the employees' rights, nor were they perpetrat-
ed in circumstances which would cause the acts to
become known to employees other than the two who
were interrogated. The threat to deny employees the
rights of economic strikers to reinstatement upon depar-
ture of permanent replacements is most unlikely to have
any effect upon future elections. While the action consti-
tutes an unfair labor practice, it was premised on a triple
hypothetical: a breakdown in negotiations, the calling of
an economic strike by the Union, and success at securing
permanent replacements. In this posture, the threat to
deny employees reinstatement rights if they engaged in
an economic strike at some uncertain future date is un-
likely to have had a lingering effect upon the employees
who read the notice in which it was contained.
Therefore, the unfair labor practices found herein fall
in the third category of cases recognized by Gissel in
which "minor or less extensive unfair labor practices,
which, because of the minimal impact on the election
machinery, will not sustain a bargaining order." 395 U.S.
at 615.
Accordingly, I shall recommend that the Board dis-
miss the 8(a)(5) allegations of the complaint.
Upon the basis of the foregoing findings of fact and
the entire record, I make the following
30 Were the issue not mooted, I would find that the Union did not es-
tablish a majority in the two plants at any relevant point of time herein.
Assuming the existence of the 8-card majority claimed by the Union to
have existed on October 21, it was effectively dissipated by any 8 of the
approximately 48 valid revocations of those cards executed and delivered
to agents of the Union before the commission of any of the three unfair
labor practices found herein. See J P. Stevens & Co., 244 NLRB 407, 452
(1979).
CONCLUSIONS OF LAW
I. J. P. Stevens & Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
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 interrogating employees about their union mem-
bership, activities, or desires, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By threatening to deny employees their statutory
rights to reinstatement should they engage in an econom-
ic strike even if permanent replacements are later termi-
nated, Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(l) of the Act.
5. Respondent has not otherwise violated the Act as
alleged herein.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(l) of the Act, I
shall recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the
policies of the Act.
Upon the basis of the unfair labor practice allegations
herein and the long, outrageous history of Respondent's
continuous refusal to obey the unfair labor practice pro-
visions of the National Labor Relations Act, the Charg-
ing Party requests certain extraordinary remedies includ-
ing: mailing and reading of notices to employees, the
granting of access for organizational purposes, the estab-
lishment of an interim grievance procedure, an order that
Respondent furnish the Union all statements of employ-
ment policy including "all guidelines used to establish
employee conduct, disciplinary measures, criteria utilized
in establishing wage rates and fringe benefits, as well as
policy outlines in the EEOC and OSHA areas," and an
order to reimburse the Union for organizational and liti-
gation expenses. Since I have found that the unfair labor
practices established herein are minimal in nature, the im-
position of the order requested by the Union would be
inappropriate.
Nor shall I recommend that the notice prescribed
herein be signed by Respondent's president and chairman
of the board of directors and posted at all of Respond-
ent's corporate facilities as the Charging Party further re-
quests. As stated by the Board in J. P. Stevens & Co., 247
NLRB 420 fn. 3 (1980): "The Board reviews all cases on
their merits and grants or denies remedies based on the
record as a whole." That is, there is no "traditional"
remedy in Stevens cases, as the Union appears to argue.
The record in this case reveals the commission of only
three unfair labor practices which were separate and
minimal in an impact. To treat this case as if it were one
of the many previously appearing before the Board and
the courts would dilute the effectiveness of any remedy
in cases where outrageous or pervasive unfair labor prac-
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices had been found and extraordinary remedies re-
quired to erase the effects thereof.
Accordingly, I shall recommend that the Board issue
the following recommended order which shall be limited
to the Tifton, Georgia plants.
ORDER 3 1
The Respondent, J. P. Stevens & Co., Inc., Tifton,
Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees regarding their member-
ship in, or activities on behalf of, or desires for represen-
tation by, Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC.
(b) Threatening employees that Respondent would
deny them their statutory reinstatement rights should
they engage in an economic strike and thereafter be per-
manently replaced even if the permanent replacements
later terminate their employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) Post at its Tifton, Georgia facilities copies of the
attached notice marked "Appendix." 3 2 Copies of said
notice on forms provided by the Regional Director for
Region 10, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
thereafter in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that the allegations in
the complaint of violations of Section 8(a)(1), (3), and (5)
of the Act be dismissed except insofar as specific viola-
tions of Section 8(a)(1) are herein above found.
an If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
32 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees regarding
their membership in, activities on behalf of, or desires for
representation by Amalgamated Clothing & Textile
Workers Union, AFL-CIO, CLC.
WE WILL NOT threaten to deny employees their statu-
tory rights to reinstatement should they engage in an
economic strike and thereafter be permanently replaced
even if the permanent replacements later terminate their
employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
J. P. STEVENS & Co., INC.
SUPPLEMENTAL DECISION
DAVID L. EVANS, Administrative Law Judge: On Oc-
tober 16, 1981, the Board remanded this proceeding for
reconsideration in light of a brief which had been previ-
ously filed by the General Counsel but not received by
me. I have reviewed the record and argument and au-
thorities relied upon by the General Counsel for his con-
tentions that Respondent has violated Section 8(a)(1) and
(3) of the Act as alleged in the complaint but not sus-
tained in my original Decision. The General Counsel's
arguments are essentially duplicative of those made by
the Charging Party in its brief which, as I noted in my
original decision, is excellent. For this reason a discus-
sion here of all the issues considered on remand would
be nothing but a needless exercise in repetition. It suf-
fices to say that I find no reason to change any of the
findings of fact or recommended conclusions of law'
which I previously reached. 2
Accordingly, I adhere to my original Decision.
G.C. Br. 13 urges that the December 18, 1979 speech by Donald
Johnson contains an unlawful threat of futility. I did not pass on this alle-
gation because it is not contained in the complaint. Assuming arguendo,
the allegation is properly before me, I recommend its dismissal as not
supported by the evidence.
2 For this reason I have not reviewed the General Counsel's brief or
the record on the issues of appropriate unit, majority status, or other
issues which would be necessary to consider had the General Counsel
proved the predicate for the order he seeks pursuant to NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969).
32