J. P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1975

217 N.L.R.B. 513 (N.L.R.B. 1975)

J. P. STEVENS & CO., INC. 513
J. P. Stevens & Co,, Inc. and Textile Workers Union
of America, AFL-CIO. Cases 11-CA-5591 and
11-RC-3797
April 24, 1975
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLQ
On January 29, 1975, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.'
about their union activities, and threatening them with repris-
als if they selected the Union as their bargaining representa-
tive. In Case 11-RC-3797, an election was conducted 'on
November 20 and 21, 1973, pursuant to a Decision and Di-
rection of Election issued by the Regional Director of Region
11 on October 26, 1973, which resulted in 119 votes for the
Petitioner, Textile Workers Union of America, AFL-CIO,
and 176 votes against the Petitioner. Thereafter, on Novem-
ber 30, 1973, the Petitioner filed timely objections to the
election. On September 4, 1974, the Regional Director issued
a Supplemental Decision and Direction, in which he directed
that a hearing be held to resolve issues raised by two of
Petitioner's objections. On November 8, 1974, the Board,
pursuant to Petitioner's request for review, ruled that the
issues raised by an objection that had been overruled by the
Regional Director should also go to hearing. Accordingly,
this issue was added to those to be resolved by the Regional
Director's Order Consolidating Cases, Complaint and Notice
of Hearing issued September 9, 1974. A hearing was held
before me in Rockingham, North Carolina, on November 26,
1974.
Upon the entire record in the case, including my observa-
tion of the witnesses, and upon consideration of the briefs, I
make the following:
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, J. P. Stevens & Co., Inc., Aberdeen,
North Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Textile Workers Union
of America, AFL-CIO , and that said labor organiza-
tion is not the exclusive representative of all the em-
ployees, in the unit herein involved , within the meaning
of Section 9(a) of the National Labor Relations Act, as
amended.
I We do not, however,' adopt the recommendation that Case
I1-RC-3797 be remanded to the Regional Director for Region 11
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: Case
11-CA-5591 is before me pursuant to charges filed January
14, 1974, and amended March 6, 1974, and a complaint
issued September 9, 1974, alleging that Respondent violated
Section 8(a)(1) of the Act by interrogating its employees
I THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a New York Corporation, is engaged in textile
manufacturing at various locations in North Carolina, in-
cluding the Aberdeen plant involved herein. During the past
year, the Respondent reviewed goods and materials from and
shipped products to points outside the State of North
Carolina valued in excess of $50,000. I find, as Respondent
admits, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. Textile Work-
ers Union of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section
8(a)(1) by interrogating its employees about their union ac-
tivities and threatening them with reprisals if they selected
the Union as their bargaining repesentative. Each of the a11e-
gations involves one supervisor and one employee. And each
of the alleged violations is also claimed as a basis for setting
aside the election.
Employee Shelly Kiser testified that Supervisor George
Van Hoy, after informing him about a raise the Company was
giving, told him that he "heard that I had signed a blue card
for the Union," and asked if Kiser realized "what the union
could do" to him. Van Hoy, according to Kiser, also told him
that "if the union was to go on strike, they could put someone
else in my place," and if the employees went out on a picket
line, they could "shut the plant down."
Van Hoy denied that he in any way questioned Kiser about
his union activities. He testified that Kiser told him he had
heard that if a plant called a strike, and he picketed, he could
217 NLRB No. 90
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lose his job. Van Hoy referred Kiser to a letter the Company
had written on a previous date on this subject.
The General Counsel and the Petitioner point to asserted
discrepancies between Van Hoy's testimony on the stand, and
his statement given to a Board agent 9 months earlier, and
argue that these discrepancies furnish ample basis for discred-
iting him. I ' do not, however, regard the discrepancies as
significant .' Furthermore, Kiser's recollection of pertinent
events, particularly of when they occurred , was so obviously
poor, that I am constrained to credit Van Hoy's testimony
over Kiser's. Accordingly , I find no violation of Section
8(a)(1) with respect to this allegation.
Employee Delmar Sheffield testified that Supervisor Jen-
nings-Kirk asked him about a month and a half before the
election how he Was - going-to vote. When Sheffield told Kirk
he did not know yet, Kirk said "What would the people do
that voted for the Union - if the. plant closed down?" Kirk
denied Sheffield's version of their conversation , testifying that
Sheffield asked to talk to him , and told him "I want you to
know that I am not having anything to do with any blue
cards." With Kirk replying "Well , you know that is your free
will, Tim." Sheffield impressed me as a credible witness; Kirk
did not. Kirk at first denied knowing what a "blue card" was,
but subsequently was forced to admit that he did know that
a blue card was a union card . His own version of the conver-
sation demonstrates that he knew at the time what a blue card
was, for his asserted reply to Sheffield would make no sense
if he had not.
As Sheffield's version of the conversation , which I credit,
contains a clear violation of Section 8(a)(1) of the Act, con-
sisting of both interrogation and a threat , 'I find that Re-
spondent violated the Act -in' this respect.
III THE OBJECTIONS
The election results, as noted above, show that, the Peti-
tioner received 119 votes, with 176 votes against it. In the
light of the substantial margin of the Union's loss, I do not
regard the unfair labor practice I have found, consisting of a
single interrogation and a single threat by- one supervisor to
one employee, as a sufficient basis for setting aside the elec-
tion, and shall recommend, that this objection be overruled.
As I have concluded that Respondent did not violate Section
8(a)(1) with respect to the other allegation of the complaint,
I shall also, of course, recommend that this objection be
overruled.
The remaining objection, which was not alleged as an un-
fair labor practice, was stated by Petitioner as follows:
The principal "discrepancy" adverted to is that Van Hoy,,m his affidavit,
placed the conversation with Kiser about what would happen in the event
of a strike as being in the same conversation in which Van Hoy told Kiser
about the wage increase, a conversation mitiated by Van Hoy, while in his
testimony Van Hoy stated that Kiser initiated the conversation about what
might happen if the Union went out on strike As both the affidavit and Van
Hoy's testimony have Kiser initiating that portion of the conversation deal-
ing with a possible strike, it is of no consequence that the entire sequence
began with Van Hoy approaching Kiser on another matter Indeed, even the
affidavit at first seems to place the portion about the strike as a separate
conversation, with Van Hoy later stating that "I believe that the conversa-
tion I mentioned above with Kiser occurred when I was telling him about
the- wage increase " -
The Company violated the-United States Court of Ap-
peals for the Second Circuit `Contempt Adjudication,
Item No. 10 and Item No. 11. -
a. Item No. 10: "If within the next two years, the Board
schedules an election in which the Union participates
at any of the five plants, then, upon request by the
Union, the Company shall afford it reasonable access
to each of the Company's said plants and appropriate
facilities to deliver a 30-minute speech to employees
on working time, the date thereof to be within 10
working days before but not within 48 hours prior to
any such election." -
The Company did not make available - the employees
after being notified by the Union that they wanted to talk
to all the eligible voters that were working: -
b. Item No. 11: ". . . (in part) The Company shall make
available to the Union and its representatives on each
such occasion at a mutually agreeable time, similar
facilities so that the Union may present its view to
employees assembled on Company time for a similar
period."
The Company failed to-assemble-the employees in order
for the Union to present their view. The Company also
limited the Union to one representative entering the
plant to deliver the speech even though they had all of
their supervisors present during their meetings with the
employees.
As noted above, the Regional Director initially dismissed
this objection on the ground that "whether or not the Em-
ployer is in contempt of the Court's decree as alleged'by the
Petitioner is beyond the scope of this proceeding and the
undersigned makes no finding in this respect. As it goes to
objectionable -conduct, the undersigned has carefully re-
viewed the evidence adduced and viewing it in the light most
favorable to the Petitioner concludes that it does not raise
material and substantial issues warranting the setting aside of
the election." But the Board, on review, remanded the case
for the purpose of including this objection in the hearing to
be held. I assume that the Board's remand carries with it the
implication thatthe election should be set aside if the facts
bear out Petitioner's contentions. Before fully resolving the
legal question, I will discuss the evidence'and make the neces-
sary factual findings.
The Employer granted the Union access to the plant on
November 16, 1973, pursuant to the Union's request that it
be permitted to address the employees . It is undisputed that
the Employer limited the Union's access to the one represen-
tative who was to make the speech, and turned three other
union representatives away. The Employer determined to
address the employees on November 19, and the Union re-
quested that it be given equal time and facilities to respond.
Although the Employer at first claimed that it was not re-
quired to do so, it agreed to permit the Union to come in
(again with only a single representative) following a ruling by
General Counsel Peter Nash that he so construed-the Second
Circuit's decree.
Petitioner adduced testimony from five employees, -all of
them on the Company's second shift, to the general effect that
J. P. STEVENS & CO., INC. 515
their supervisors told them to shut down their machines, but
not that there was going to be a union speech , on the occasion
of the two union speeches, on November 16 and 19, but that
these same supervisors, on the occasion of the Company
speech on November 19, told them the purpose of the shut-
down was for the company speech. Employee Kiser testified
as to what Van Hoy said; employee Sheffield testified as to
what Kirk said; and the other three employees, Stanback,
Mitchell, and Sineath, testified as to what their supervisor,
Harvey Williams, said. The Employer adduced testimony
from three employees, Spivey, Carpenter, and John Carter,
Jr., to the general effect that their supervisors, Van Hoy in the
case of Spivey and Carpenter and Williams in the case of
Carter, told them when shutting down the machines on each
of the three occasions the purpose of the shutdown. In addi-
tion, Van Hoy, Kirk, and Williams all testified to the same
effect.
Sheffield, Mitchell, and Stanback testified that they did not
see any notice on the Company's bulletin boards concerning
the November 16 union speeches. Company Executive Vice
President Marvin Crow, Plant Superintendent Ralph Harris,
and Personnel Director Bobby Morton, however, testified
credibly to the posting of the notices in question, and that
they remained posted, and Petitioner's witnesses Kiser and
Sineath both testified that they did see the notice on the
bulletin board.'
Marvin Crow testified that at each of the three speeches
(one at each shift) he made on November ' 19 he told the
employees present that it had been ruled that the Union
would be entitled to come in and make another speech, which
would be in the latter part of each shift, adding, "We do not
feel that it is right in that we are speaking to you one time,
and they are speaking with you twice. However, this is what
has been ruled, and we are so abiding, and so a representative
of the union will be back in at the end of this shift to talk with
you." Although some of Petitioner's witnesses were vague
with respect to what Crow said about a subsequent union
speech, on November 19, most seemed to confirm the essen-
tials, as Crow testified.
The discrepancy remaining to be resolved, therefore, is
what was said to the employees prior to the two union
speeches. Based on all the testimony, and the inherent
probabilities of the situation, I am constrained to conclude
that the supervisors in question did indicate the purpose of
2 The notice read as follows-
We have received notification from the Union that it wishes to send
a representative of the Union into this plant today , to make a talk to
each shift regarding the election which is to be held here next week.
We are legally required to permit this We will therefore make ar-
rangement in the Yarn Storage area for the Union representative to
come there and make his talk today:-at 7 30 A.M. on the 3rd
shift-at 3.30 P M. on the lit shift-and at 11 30 P.M. on the 2nd shift
At those periods, work will be shut down in the plant, and you will
be free to attend the speech by the Union representative. There, will be
no loss of pay during the time the jobs are shut down.
Similarly, if next week any speech is made by the Company prior to
the election, work will be shut down without loss of pay, and everybody
will be then likewise free to attend such speech by Management
In each such case, attendance would be invited but not required. All
who attend either of such speeches would, however, be expected to
conduct themselves in an orderly manner at all times.
each of the three shutdowns on the second shift as they
testified. To use Harvey Williams' testimony as the example,
he testified that on November 16 he told the employees that
there would be a union meeting in the yarn storage area at
11:30, that the machines should be shut down at 11:25, and
that if they did not attend the speech, they should go to the
canteen, rather than roam about the plant. He testified that
with respect to the company and union speeches of November
19, he told the employees approximately the same thing as he
had on November 16, even putting the instructions- in the
form of "the same thing applied to that meeting" as for the
previous meetings. John Carter, Jr., fully confirmed Wil-
liams' testimony.
The three employees who testified that Williams told them
to "shut down" without telling them the purpose, prior to
each of the union speeches, testified that on the occasion of
the company speech Williams told them the purpose, and told
them they "had the same right as ... with the previous
meeting," they "could either go or not go." Not only does this
confirm Williams' testimony, the very way it was said
strongly suggests that Williams must have told them the
"ground rules" at the previous occasion, the first union
speech. Had Williams said "shut down your machines" and
nothing more prior to the November 16 meeting, there would
be no such ground rules to which he could refer. It is also
highly unlikely that a supervisor, indeed, all the supervisors
on the shift, would shut down machines without telling em-
ployees the purpose of the shutdown, or being asked the
purpose. All three witnesses who testified that Williams did
not tell the purpose of the shutdowns for the two union
speeches during the second shift, of course, did not need to
ask the purpose, for they were on the Union's in-plant organ-
izing committee and knew the Union was to make a speech
on each occasion. Perhaps because they already knew the
purpose of the shutdown, they did not pay particular atten-
tion to Williams' explanation of the purpose.
Finally, in view of the convincing evidence that the notice
of the Union's November 16 speeches was posted on the
bulletin board, and the virtually uncontradicted evidence that
Crow told the employees on each shift that he addressed on
November 19 that the Union was to make a speech later in
that shift, it is likely that all employees would have known the
purpose of the shutdowns even without their supervisor ex-
pressly telling them so. I deem it significant that no employee
testified that he did not know the purpose of shutting down
the machinery at either time. It is also of some significance
that no employee on any other shift was called to testify. I
must presume from that, and the lack of any contention by
Petitioner that there was anything amiss in the Company's
handling of the situation with respect to the Union's speeches
on the other shifts, that everything was handled there in
accordance with the instructions given the supervisors, as
testified to by Marvin Crow.
As I indicated at the outset of this discussion, I assume that
the Board, by reversing the Regional Director's determina-
tion that any possible violation of the Second Circuit's decree
was not a ground upon which the election could be set aside,
was ruling that a failure to comply with the decree by the
Company would be a sufficient basis for setting the election
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aside.3 If, for ample, the Company had refused to permit
the Union to make any speeches at all, there is no question
but that the election should on that account alone be set aside.
Petitioner argues that even though it was permitted to make
the November 16 speech, and to reply to the Company's
November 19 speech, the Company did not "assemble" the
employees, i.e., it did not require attendance at the union
speeches, that it did not properly notify the employees of the
union speeches, and that any notification it did give was
grudgingly given, and far less than the notification of the
company's speech. Finally, Petitioner claims that the failure
to permit other union representatives than the speaker to
attend the Union's meetings , when contrasted with the fact
that the Company had their supervisors present during its
speeches, constituted a violation of the court's ruling.
I have already concluded that the notification to the em-
ployees of the Union's speeches was adequate, and was sub-
stantially the same as the notification of the Company's
speeches. And, as employees were told that they could attend
or not with respect to both the company and the union
speeches, there was no disparity in that respect. Short of an
explicit statement in the court's contempt adjudication that
the Company must require attendance at the Union's
speeches held pursuant to that adjudication, I cannot con-
clude that the notifications were inadequate.
Nor do I read the court's mandate as requiring the Com-
pany to permit other union representatives than the speaker
to attend the in-plant meetings. The fact that the Company's
supervisors attended the Company's speeches does not affect
that conclusion; they, of course, are already on the Com-
pany's premises. I am not unmindful of this Employer's track
record, of, as the Second Circuit put it, a "pattern of fla-
grantly contemptuous conduct," (464 F.2d 1326, 1329). And
viewed against that pattern, conduct that would normally not
be sufficient to set aside an election would, and should, be
assessed much more stringently than in an ordinary case. I do
not find on this record, however, that the Company's conduct
in connection with the speeches of November 16 and 19
constitutes a basis for setting aside the election.
Although my conclusion as to this objection would be the
same even if the election had been closer, I believe that the
margin of the Union's loss reinforces my determination that
whatever very minor deviations there may have been should
not be a basis for setting aside this election. I note further that
the election was conducted in November 1973, so there is no
impediment, vis-a-vis the statutory prohibition against hold-
ing two valid elections within 1 year, to the holding of another
election at this point. For all the above reasons, I conclude
that the objections to the election should be overruled.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) of the Act.
2. Respondent has not violated the Act in any other re-
spect, nor has it engaged in any conduct warranting the set-
ting aside of the election conducted November 21, 1973.
THE REMEDY
Although normally the single violation found herein might
be said to be de minimis, and insufficient to require any
remedial order, in my view of the background of this Re-
spondent adverted to above, I shall recommend that Re-
spondent cease and desist from its unfair labor practices and
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Respondent, J. P. Stevens & Co., Inc., Rockingham, North
Carolina, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities
and membership.
(b) Threatening employees with plant closure because of
their concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise -of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Post at its Rockingham, North Carolina, plant copies
of the attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 11, shall be signed by an authorized representative of the
Company and posted immediately upon receipt thereof and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all locations where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to insure that the notices are not altered, defaced
or covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed in
all other respects.
IT IS FURTHER ORDERED that the objections to the election in
Case 11-RC-3797 be overruled, and the case remanded to the
Regional Director for appropriate action.
CONCLUSIONS OF LAW
1. Respondent, by interrogating and threatening an em-
ployee with respect to union or concerted activities, has en-
3 Despite the fact that normally an employer is not required to give a
union any right of access to the plant to make a speech, or to reply to a
company speech. Petitioner is correct, in my view, that the standards for this
election include the requirements set forth by the court of appeals, as well
as all normal standards applicable to elections generally
4 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
J. P. STEVENS & CO., INC. 517
APPENDIX WE WILL NOT threaten employees with plant closure
because of their concerted activities.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE WE WILL NOT in any like or related manner interfere
NATIONAL LABOR RELATIONS BOARD with, restrain , or coerce our employees in the exercise of
An Agency of the United States Government their rights under Section 7 of the Act.
WE WILL NOT interrogate our employees about their
union membership or activities . J. P. STEVENS & CO, INC