Jackson Sportswear Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 891 (N.L.R.B. 1974)

JACKSON SPORTSWEAR CORP. 891
Jackson Sportswear Corporation and United Whole-
sale and Production Workers Union , Local 586,
affiliated with Retail, Wholesale and Department
Store Union, AFL-CIO. Case I1-CA-5323
June 24, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing her findings.
3 We find, in agreement with the Administrative Law Judge, that the
Respondent violated Sec . 8(a)(1) by conducting an employee poll in order to
procure the Union's defeat at a time when it did not possess sufficient
objective evidence to have entertained a reasonable doubt of the incumbent
Union's continuing majority status . We further find that this conduct
constituted a violation of Sec . 8(aX5) under our decision in Montgomery
Ward & Co., Incorporates{ 210 NLRB No. 120.
Having found Respondent 's poll to be unlawful, we find it unnecessary to
pass on the Administrative Law Judge's conclusion that the Respondent's
poll did not comport either with Board election standards or with the
Board's polling criteria set forth in SI,uksnes Construction Co., Inc., 165
NLRB 1062, and thereby also violated Sec. 8(a)(1).
On February 27, 1974, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief I and has decided to affirm the rulings,
findings,2 and conclusions3 of the Administrative
Law Judge and to adopt her recommended Order as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Jackson Sportswear Corporation, North Au-
gusta , South Carolina, its officers, agents, successors,
and assigns , shall take the action set forth in the
Administrative Law Judge's recommended Order, as
modified herein:
1. Add the following as paragraph 1(b) and
reletter the existing paragraphs 1(b) and 1(c) as 1(c)
and 1(d), respectively:
"(b) Polling or otherwise interrogating its employ-
ees to ascertain their union views in the absence of
objective considerations warranting a reasonable
doubt of the Union's continuing status as the
collective-bargaining representative of the majority
of its employees."
2. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
I Respondent's request for oral argument is hereby denied as the record,
exceptions , and brief adequately present the issues and positions of the
parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportuni-
ty to present their evidence , it has been decided that
we violated the law and we have been ordered to post
this notice . We intend to carry out the Order of the
Board and abide by the following:
WE WILL, upon request , bargain collectively in
good faith with United Wholesale and Production
Workers Union , Local 586, affiliated with Retail,
Wholesale and Department Store Union,
AFL-CIO, as the exclusive bargaining represent-
ative of the employees described below. If an
agreement is reached, we will on request sign such
an agreement. The employees are:
All production and maintenance employees
at our North Augusta, South Carolina, plant,
excluding all office employees, professional
employees, guards, and supervisors as de-
fined in the Act.
WE WILL NOT refuse to recognize or bargain
with the Union as the exclusive bargaining
representative of these employees.
WE WILL NOT poll our employees, or otherwise
ask them, about their union views, in a manner
constituting interference with, restraint of, or
coercion of employees in the exercise of their
rights under the law.
WE WILL NOT poll our employees, or otherwise
ask them, about their union views in the absence
of objective considerations warranting a reasona-
ble doubt of the Union's continuing status as the
collective-bargaining representative of the majori-
ty of our employees.
Our employees are free to join or not to join any
union, including the Union named above.
211 NLRB No. 136
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JACKSON SPORTSWEAR
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-2300.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN , Administrative Law Judge: This
proceeding , heard at Augusta, Georgia, on August 30-31
and September 6-7, 1973, and at Winston-Salem, North
Carolina, on November 30, 1973,' pursuant to a charge
filed on May 16, 1973, and a complaint issued on July 20,
1973, presents the questions of whether Respondent (1)
violated Section 8(a)(1) of the National Labor Relations
Act, as amended (herein called the Act), by polling its
employees concerning their support of the Charging Party;
and (2) violated Section 8(a)(5) and (1) of the Act by (a)
negotiating with the Charging Party between about
February 6, 1973, and May 3, 1973, allegedly with no
intention of entering into a binding collective-bargaining
agreement ; and (b) admittedly refusing, on and after about
May 3, 1973, to meet with a local affiliate of the Charging
Party for the purpose of collective bargaining.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
Respondent and counsel for the General Counsel, I make
the following:
I The November hearing was held to receive the testimony of Jack E.
Ruby, who conducted the field investigation of this case but before
receiving a subpena ad testificandum issued at Respondent's instance under
the circumstances described infra In. 20, voluntarily resigned his job as
Board field examiner in order to enter law school. Neither Ruby nor counsel
for the General Counsel appealed to the Board my action in denying-on
the ground , inter alia, that Ruby's resignation made inapplicable to him the
provisions of Section 102.118(a) of the Board's Rules and Regulations
forbidding any "employee of the Board" from testifying about certain
matters without his superior's consent-their respective motions to quash
the subpena . Early in Ruby's cross-examination by counsel for the General
Counsel , Norman Holtz (Respondent's counsel) stated , "I'm not planning to
establish that the investigation was made in bad faith . The [gravamen] of
our claim is that there is a greater responsibility on the part of the General
Counsel to disclose information . We have contended that . . . Counsel for
the General Counsel is possessed of information that he did not disclose at
the hearing ... I have never contended that Mr. Ruby acted in bad faith in
the course of the investigation ." Further, during the hearing Holtz
repeatedly expressed confidence in Ruby's veracity. After Ruby had been
FINDINGS OF FACT
1. RESPONDENT'S OPERATIONS
Respondent is a Delaware corporation owning and
operating a plant in North Augusta, South Carolina, where
it manufactures knit shirts. During the 12 months preced-
ing the issuance of the complaint, a representative period,
Respondent shipped goods valued at more than $50,000
directly to, and received materials valued at more than
$50,000 directly from, points outside South Carolina. I find
that, as Respondent admits, Respondent is engaged in
commerce within the meaning of the Act, and that exercise
of jurisdiction over its operations will effectuate the
policies of the Act.
II. THE CHARGING PARTY'S STATUS AS A LABOR
ORGANIZATION
Respondent's answer admits that on September 24, 1971,
United Wholesale and Production Workers Union, Local
586, affiliated with Retail, Wholesale and Department
Store Union, AFL-CIO (the Charging Party herein,
hereafter called the Union), was certified by the Board's
Regional Director as the exclusive representative for the
purpose of collective bargaining of an appropriate unit
consisting of Respondent's production and maintenance
employees at Respondent's North Augusta plant. On April
15, 1972, Respondent entered into a contract with the
Union (on whose behalf at least two of Respondent's
employees executed the agreement) which by its terms was
to expire on April 15, 1973. The contract contained, inter
alia, provisions for a grievance and arbitration procedure
and for union stewards. During the effective period of the
contract, the Union processed a number of grievances to
conclusion. Until March 1973, an employee who was shop
chairman and union steward stood at a table which
Respondent set up in the hall during 1 payday of every
month in order to collect dues. During March and April
1973, representatives of Respondent met with the Union
on two occasions to discuss a new contract. During much if
not all of this period, the Union held monthly meetings
attended by employees of Respondent.
Notwithstanding the foregoing facts, all but the last of
which must have been known to Respondent, Respondent
stated in its answer, and reiterated at the hearing, that it
excused , Holtz repeated that he had "never" characterized Ruby's
investigation as bad faith , and stated that Respondent had not been "able to
prove" that counsel for the General Counsel withheld information. Ruby
impressed me as an unreservedly honest witness ; and his credible testimony
establishes that in investigating this case , he conscientiously performed his
duties as an impartial public servant.
In a posthearing letter to me dated December 13, 1973, Holtz stated, inter
alia, "After reviewing Mr. Ruby's testimony , it appears quite obvious that
the testimony of Mr. Ruby does not indicate and support Respondent's
claim that information was improperly withheld ." In his January 25, 1974,
response to my order to show cause why this letter should not be received
into evidence , Holtz stated, inter alia, "While Mr. Ruby's testimony would
not appear to support Respondent's claim that General Counsel improperly
withheld information , it is nevertheless Respondent 's position that it was
not able to properly examine Ruby and establish this position since
Respondent 's subpoena duces tecum was revoked" (see infra fn. 20). Holtz'
December 13, 1973, letter to me is hereby received in evidence, over
Respondent 's objections as to materiality , as Administrative Law Judge's
Exhibit 5.
JACKSON SPORTSWEAR CORP. 893
did not have sufficient knowledge to be able to answer the
complaint allegation that the Union is a labor organization
within the meaning of the Act. On the basis of the
foregoing evidence , I find that it possesses that status.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
By letter dated February 6, 1973, to Henry Parnelle (then
the manager of Respondent's North Augusta plant), with
copies to the Federal Mediation and Conciliation Service
and .to the then company attorney, James Smith, the union
regional director and service representative , Guy Dickin-
son, advised Respondent that "in accordance with Article
XVIII" of the current bargaining agreement, "the Union is
hereby giving notice of its desire to terminate the
agreement." 2
During a membership meeting on the evening of
February 6, some of the employees told Dickinson that
stamped and addressed postcards, asking employees who
wanted to get rid of the Union to sign the card and mail it
to the addressee appearing thereon, were being circulated
in Respondent's plant. One of the employees gave
Dickinson what purported to be such a postcard, and some
of the employees told him that they thought the handwrit-
ing on the postcard was that of a supervisor who lived next
door to the addressee, a rank-and-file employee. There is
no evidence that these employees' reports either described
the card-circulating activities as in fact being carried on by
rank-and-file employees, or asserted that any employees
were in fact signing such cards.3
Dickinson testified that on the following day, February
7, he went to the plant and told Plant Manager Parnelle
that to prepare for the forthcoming negotiations, he wanted
to tour the plant to understand all the phases of the work
and the operation of the piece rate. According to
Dickinson, Parnelle took him through parts of the plant
but did not let him see everything he wanted to see. Still
according to Dickinson, he told Parnelle that he had
received reports that supervisors had been telling employ-
ees that "they were being held back from a wage increase,
and an extra holiday, and a number of other things," and
that "the personnel secretary and supervisors or others
[were] going around saying things about the union and
trying to knock the union." Dickinson testified that
Parnelle initially told Dickinson that he did not know
anything about this. Still according to Dickinson, he then
told Parnelle the name of the employee who had told
Dickinson that she had confronted Parnelle with it, and
Parnelle replied, "Well, let me see, I believe I do recall
something about that." Dickinson testified that Parnelle
did not tell him that Respondent had nothing to do with
this. Dickinson further testified that he asked Parnelle
about the antiunion postcard, and that Parnelle denied any
knowledge of it. Dickinson further testified that he then
said, "Now there is an employee that reported to me that
they came to you and talked to you about this card," to
which Parnelle replied, "Oh, yes, I do recall it but . . . you
know how they are about, the employees here are about
signing anything. I don't think that you have got anything
to worry about." Dickinson testified that he said, "I am not
worried about it because I think that if anything was going
to develop from it, that it would have already developed
... but I thought that it ought to be brought to your
attention." Parnelle did not testify.4 For the reasons set
forth infra, part III,F,1, I credit in its entirety Dickinson's
testimony summarized in this paragraph.
B. The March and April Negotiations
On February 26 or 27, Dickinson telephoned Attorney
Smith. The parties agreed to meet on March 14 at an
Augusta, Georgia, motel, to negotiate a new bargaining
agreement. Smith told Dickinson that he would be acting
in an advisory capacity and that Respondent had hired an
"experienced labor relations man, personnel man" Robert
Naftzinger, who would be handling negotiations. These
arrangements for a meeting with Naftzinger were con-
firmed by a letter to Dickinson dated February 28, 1973,
from Attorney Alan L. Rolnick, Smith's law partner.
The first bargaining session was held on March 14, 1973.
The Union was represented by Dickinson and three
employees elected by their fellows to serve on the
negotiating committee-Audrey Parry (shop chairman and
union steward), Virginia Smith, and JoAnne Henley;
Respondent, by Attorney Rolnick And Plant Manager
Parnelle. Naftzinger was not present. Dickinson submitted
a list of 14 proposed changes in the bargaining agreement.5
The parties discussed each of these proposals. Respon-
dent's representatives agreed to the proposal that it
undertake not to post the amount of vacation pay to which
each employee was entitled, and indicated that they might
be able to agree to one or two more. More specifically,
Parnelle stated that he wanted to make a survey in
connection with the Union's request for a change in the
starting and quitting hours but he was quite sure that it
could be worked out. The meeting had begun more than 2
hours late because of a delay in Dickinson's flight to
Augusta from his Atlanta office. It lasted about an hour
and a half, not including a lunch break.
The second and last bargaining session was held on April
4, and lasted between 2 and 3 hours. The Union was
2 Article XVIII of that agreement provided: "This Agreement shall
continue in full force and effect until the 15th day of April, 1973, and for
one (1) year terms thereafter unless written notice of termination shall be
mailed by either party to the other at least sixty (60) days prior to the end of
the then current term, in which event the Agreement shall terminate at the
end of the then current term."
3 My findings in the foregoing paragraph are based on Dickinson's
uncontradicted and credited testimony. Laying to one side the evidence set
forth infra regarding Plant Manager Parnelle's statements to Dickinson,
there is no probative evidence , either that this card-circulating activity in
fact occurred during this period, or of the truth of the employees' assertions
to Dickinson at the meeting that the card was written by a supervisor, and
that supervisors were telling employees that the Union was holding them
back from obtaining wage increases and a paid holiday.
4 At the time of the hearing, he was no longer plant manager. His
whereabouts were not otherwise explained.
5 These proposed changes included, inter alia, addition of provisions for
a guaranteed workweek , time and a half for work exceeding 8 hours a day,
furnishing daily production records to the production employees, and a
checkoff; deletion of a provision affording Respondent the right to change
the workweek and workday schedules ; a 5-minute extension of the rest
periods; a change in the date relevant to determining vacation rights;
undisclosed changes in the insurance provisions ; and a 2-year term.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by the same persons as on March 14, except
for Henley; Respondent's representatives were Attorney
Smith and Plant Manager Parnelle. The Union agreed to
withdraw its proposal to shorten the probationary period
from 90 to 30 days, and Respondent's representatives
agreed to the Union's proposal that employees receive paid
holidays after 30 days of employment. The Union and
Respondent's representatives also agreed to the Union's
proposal for a change in the starting and quitting times, to
be effective the first week in June. In connection with the
Union's proposal for three additional paid holidays (the
day after Thanksgiving, Good Friday, and Martin Luther
King's birthday), Respondent's representatives said they
were sure the employees would get one additional holiday
and asked which holiday they preferred; the Union replied
the day after Thanksgiving. The parties also discussed the
Union's proposal (not included in its written proposal)
regarding extensions in maternity leave. Smith stated that
he could not give an answer to the Union's wage proposals
because of bills pending in Washington which called for an
increase in the minimum wage.6 The Union pointed out
that the current contract was to expire by its terms on April
15. The Union and Respondent's representatives agreed to
meet again on April 13, by which date, Smith stated, he
would have received more information on the minimum
wage from an intervening trip to Washington.
C. The Alleged Extension of the Agreement
On April 11, when Dickinson telephoned Smith, Smith
said he had been trying to reach Dickinson to cancel the
April 13 meeting because he had learned in Washington
that the minimum wage would likely go up more than
Respondent had anticipated, and to a point which would
cause a re-examination of the entire bonus system for piece
workers. Smith suggested that they extend the contract
indefinitely with either party having the right to give 10
days' notice of cancellation of the contract, and that they
meet again after they found out something more about the
minimum wage. Dickinson asked whether Smith would
commit Respondent to retroactive pay; Smith replied that
there would have to be some consideration of retroactive
pay. Dickinson and Smith discussed the possibility of
negotiations on more money above the minimum wage, or
putting in the rate of the wages ahead of time. Smith said,
"Well, we can work out something in one of these three
areas." Dickinson replied, "With that understanding, I
would agree to an extension." Smith stated that he would
give Dickinson a copy of their understanding, and told him
to return a signed copy to Smith and keep one for himself.
Smith thereafter drafted and signed the following letter,
dated April 13, 1973, which was subsequently signed by
Dickinson:
This will confirm our telephone conversation on
Wednesday evening, April 11, 1973, in which we agreed
6 The Union's original proposals included a 35-cent wage increase for
hourly workers and an annual increase of 15 percent for piecerate workers.
During the initial meeting, in accordance with Rolnick's request for a "more
realistic" wage proposal which could form the basis for a company
counterproposal, the Union reduced to 10 percent its wage proposal for the
latter group . The existing agreement provided , inter alia:
... an operator in order to be considered at one hundred (100%)
efficiency must earn the equivalent of $1.68 in production earnings in
on an indefinite extension of the present agreement
pending further word and Congressional action on the
minimum wage bill. The agreement will continue in
effect subject to ten ( 10) days termination notice by
either party.
Please sign and return a copy of this letter, thereby
indicating your concurrence in the above.
Respondent's industrial relations director, Naftzinger,
admittedly received a copy of this letter about April 16.
Respondent's counsel stated on the record that so far as he
knew, until May 3, 1973, Respondent "engaged in no
conduct which would , or could be considered to be in
violation of a collective bargaining agreement."
D. The April 26 Poll
1. The reasons advanced by Respondent for
conducting the poll
The complaint alleges, inter alia, that Respondent
violated Section 8(a)(1) of the Act, about April 26, 1973, by
polling its employees concerning their support of the
Union. Respondent admittedly conducted a poll about this
matter on this date. The only specific evidence tendered by
Respondent as to its motives for conducting this poll was
the testimony of Robert Naftzinger, who is Respondent's
director of industrial relations by virtue of his occupying
that post with Respondent's sister corporation (American
Argo Corporation), which operates several plants, infra,
part, III,F,2,c,(1). Naftzinger testified that Respondent
constituted the only union operation that "we" had. He
further testified that shortly after his affiliation with
Respondent in January 1973, he had occasion to examine
turnover records for all the operations, and noted that
about 30 percent of the employees who had participated in
the September 1971 Board election were no longer in
Respondent's employ and 41 of Respondent's approxi-
mately 120 employees had been hired after September
1971.7 Naftzinger further stated that the September 1971
election had been decided by three or four votes.8 In
addition, Naftzinger testified that in early February, Plant
Manager Parnelle told him by telephone that there was a
"certain amount of unrest in the plant." According to
Naftzinger, when he asked Parnelle what he meant by this,
Parnelle "indicated . . . that he'd been approached by a
party or parties," (without naming them or saying how
many there were) "and they inquired as to what might be
done to get rid of the Union." Still according to
Naftzinger, Parnelle asked what he should do, and
Naftzinger replied, "One thing you should not do is be of
any assistance to those people in this particular regard
because you cannot do that, within the realm of the law."
On direct examination , Naftzinger testified that "sometime
in March . . . precise dates are unknown," Parnelle told
him by telephone that "he'd noticed or observed that the
order to be entitled to the bonus . The bonus shall be set at twenty (20%)
percent of the operator's piece work earnings when such earnings are
equal to $ 1.68 or more, in line with existing practices.
7 As of April 26, 1973, 83 of Respondent's 124 unit employees had been
eligible to vote in the 1971 election and 41 had been hired since . Of these 41,
5 were hired in 1973.
8 In the absence of any contention otherwise , I accept Naftzinger's
testimony as proof of what the 1971 tally was.
JACKSON SPORTSWEAR CORP.
people were not visiting the . . . dues taker . . . at the
place established in the vestibule . . . very few people were
visiting from the group, and that he felt that this was an
indication that many of the members were losing interest
and indeed weren't participating in union activity any
longer ." Still on direct examination , Naftzinger testified
that during this same "sometime in March" conversation,
Parnelle told him about the visit where Dickinson showed
Parnelle the antiunion postcard. Still on direct examina-
tion , Naftzinger testified that Parnelle "told me that he had
advised Mr. Dickinson that he was not aware of the cards,
that, if they were being handed out on company time, or if
any visitation was taking place on company time he would
certainly see that it was stopped." On cross-examination,
Naftzinger testified that this conversation took place on the
day Dickinson visited Parnelle (that is, according to
Dickinson, on February 7). Still on cross-examination,
Naftzinger testified that Parnelle had talked to him about
the alleged lack of majority or employee disinterest in the
Union, "the first time would have been late January, very
early February, and then on several occasions thereafter."
Naftzinger further testified that no employee had ever told
him personally that the employee did not want the Union,
and that he had "no way at all" of knowing the union
views of the employees hired at the plant since the Board
election.
When asked whose idea it was to have the poll,
Naftzinger testified that he and Arthur Porter, who is
president of American Argo,9 wanted to find a means of
determining whether a majority of the employees still
wished to have a union; that they approached counsel; that
"it was through counsel that this means, this approach, was
determined"; but "whether to have it or not was not
determined until sometime thereafter" on the basis, at least
in part, of information obtained from Parnelle. No dates
are attached to this portion of Naftzinger's testimony.
Porter did not testify, nor was his absence explained.
2. The conduct of the poll
a. Events immediately preceding the balloting
On April 26, 1973, Naftzinger came to the plant carrying
a number of ballots which had been prepared at his
direction in Schuylkill Haven, Pennsylvania, where his
office is located. He testified that he brought approximate-
ly 140 ballots but did not know exactly how many. The
ballots were on relatively opaque, white paper, and read as
follows:
SECRET BALLOT FOR EMPLOYEES OF JACKSON
SPORTSWEAR NO. AUGUSTA, SOUTH CAROLINA
Do you or do you not wish to have Local # 586, United
Wholesale and Production Workers Union continue to
represent you as your collective bargaining agent?
9 1t is unclear from the record whether Porter is president of or holds any
corporate office in Respondent.
10 Mrs. Johnson 's title and responsibilities are discussed infra, part
III,F,2,c,(1).
11 Snead testified that although he ordinarily voted in political elections,
he had never observed an election conducted by the Board and was unable
895
YES means you still want a union at this plant. NO
means you no longer want a union at this plant.
YES NO
I
1------1 1------1
This is a secret ballot. Do Not Sign this ballot. Fold
and drop in the ballot box.
About 11:30 a.m., Naftzinger gave the ballots to Edith
Johnson, who worked in Respondent's office,10 and
directed her to prepare a list of production and mainte-
nance employees. Mrs. Johnson prepared such a list
(whose completeness and accuracy do not appear to be
disputed by the General Counsel), adding appropriate
notations after the names of the employees who were
absent or on maternity leave that day. That same morning,
Parnelle telephoned a local assistant pastor, Reverend
Arthur Snead; identified himself as a representative of
Respondent; and asked Snead to observe a poll to
determine whether or not a majority of Respondent's
employees wished to continued being represented by the
Union. Parnelle made no statement to Snead about
whether he would be paid for observing the poll. Snead
agreed to observe the poll.
About 1 p.m., Snead arrived at the plant and met
Naftzinger. Naftzinger told Snead that "it was going to be
a secret ballot," and that the ballots would be given to the
voters outside of the area where the poll was to be taken.
Naftzinger further asked Snead to stand in a hallway where
he could observe both the ballot box and the room where
the employees were to mark their ballots, and to see that no
"irregularities" took place. Naftzinger did not explain
exactly what an "irregularity" might be.11
Thereafter, Plant Manager Parnelle, through the public
address system, instructed the employees to assemble in
the lower level of an area in the plant where the floor was
on two levels separated by steps. Naftzinger and (inferen-
tially) Parnelle , both of whom addressed the employees on
this occasion, did so from the top of the steps leading to the
upper level.12 Parnelle introduced Naftzinger to the
employees as filling in for Respondent's president. Naft-
zinger told the employees that he was there on behalf of
Respondent's president and introduced Snead as a minis-
ter. Naftzinger testified that he then read to the employees
the "exact text" of a prepared statement headed "Rough
Draft of Speech," and received in evidence as Respon-
dent's Exhibit 5. Snead testified that before the meeting
Naftzinger showed him a prepared statement and told him
that it was to be read to the employees, and that Naftzinger
spoke from a written text;13 employees Audrey Parry and
Jessie Mae McKie, who impressed me as honest witnesses,
to judge "irregularities" according to Board standards.
12 Also present during this speech were Snead , Mrs. Johnson , three office
employees, and several other individuals identified infra. The record fails to
show whether any of these was on the upper level . It seems likely that at
least Snead and Mrs. Johnson were.
13 However, although Respondent had requested Snead to supervise the
(Continued)
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Naftzinger had a sheet of paper in front of
him as he talked; and no employee positively testified to
the contrary. Moreover, several employee witnesses who
impressed me as honest witnesses attributed to Naftzinger
statements rather similar to those set forth on Respon-
dent's Exhibit 5.14 Even allowing for Naftzinger's admis-
sion that he made certain extemporaneous remarks in
addition to reading his speech, I conclude that the
employees who attributed to him the remarks summarized
infra (fns. 16 and 18) were honestly mistaken in their
testimony. I find that Naftzinger delivered to the employ-
ees the speech reproduced on Respondent's Exhibit 5,
which reads as follows (fns. added):
I have called you together today to discuss the
union.
As you know, Local 586 of the United Wholesale
and Production Workers Union was certified as your
collective bargaining representative well over a year
ago. It was certified after they won a very close
election. I understand that they won by only four (4)
votes . Some time after that, the Company negotiated a
contract with the union and that contract expired on
April 15, 1973.15 The Company and the union have had
a few collective bargaining meetings to discuss a new
contract. As I see it, nothing very much has been
accomplished yet.16
In the meantime a very significant development-a
situation of major importance-has occurred. A large
number of this plant's employees voluntarily have
informed management that they no longer wish to be
represented by this union. In other words, they have
indicated that they do not want a union here.17
We now have a serious question as to whether or not
a majority of our employees here at Jackson Sports-
wear still want a union to represent them. Considering
the fact that quite a few employees that were at the
election last year are no longer with us and that there
has been a fair degree of turnover , we are confused as
to the majority status of this union.
If the union does in fact represent a majority, then
we will continue to negotiate with the union over the
terms of the new agreement.
The law says, however, that if a company has a good
election because he was an "impartial observer," and although Snead both
heard Naftzinger 's speech and read a prepared statement which was
presumably the document identified as Resp. Exh. 5, Respondent 's counsel
did not ask him about the contents of either the speech or the prepared
statement . Snead was the first witness called by Respondent , and was
excused before Resp . Exh. 5 had been identified.
14 See the testimony of Virginia Smith , Thomasine Morgan, and Patricia
Sims. See also the testimony of Bessie Mae English , who attributed such
statements to Parnelle.
15 Cf. supra part,lll,C, and infra part IIl ,F,2,c(2).
18 Cf. supra part 1Il,B. When asked whether she recalled anything in the
speech about negotiations being had , employee Rosa J. Cofer replied, "No,
I think not ." I believe this testimony represents an honest failure of
recollection.
17 Naftzinger conceded at the hearing that no employee had ever told
him personally that the employees did not want the Union and that he had
"no way at all" of knowing the union views of employees hired after the
Board election . No member of Respondent's managerial staff-which
included the plant manager at the time of the hearing , five supervisors, and
an engineer, all of them in Respondent 's employ at the time of the hearing
faith doubt about a union's continued majority status,
then it is not required to recognize the union.
There is only one way, in our opinion, to know
where we all stand with this thing. I have prepared a
ballot for you to mark if you so desire. We will conduct
an informal election right now.
Now, I want to emphasize that no one has to vote, it
is strictly voluntary.
Two, this is a secret ballot. No one will know how
you vote.
Three, there will be no prejudice to you no matter
how you vote. There will be no reprisals taken against
you in any way. Your preference will not provoke any
response on the part of the Company.
The purpose of this ballot is to resolve the question
of the union's majority or lack of majority.
When you get the ballot, please read it and mark it
in the box of your choice. Do not sign the ballot. We
will count these ballots after everyone has voted here
today.
If you vote yes, it means you wish to have the union
continue to represent you. If you vote no, it means you
do not wish to have the union represent you here at
Jackson Sportswear.
Thank you very much for your patience.18
At the conclusion of the speech, Naftzinger stated that
Mrs. Johnson, whom he described as the "personnel
manager" (infra part III,F,2,c(l)), would remain on the
scene to pass out ballots and check off the names of the
people who picked up ballots, that Snead would remain "to
see that everything would go okay" and it was a fair
election, and that supervision, members of management,
and the office force would leave the building and go to the
parking lot. Naftzinger or Parnelle told the employees to
get in line to vote. Thereafter, the building was vacated by
Naftzinger, Parnelle, Respondent's vice president of
manufacturing, its then regional manufacturing director
(who was plant superintendent at the time of the hearing),
its then engineer (who was assistant manager/engineer at
the time of the hearing), the quality control supervisor
from Schuylkill Haven, five supervisors, two office employ-
ees, and the payroll clerk. All of these individuals had been
present at the meeting.
and at all material times previously-testified that any employee had ever
expressed dissatisfaction with the Union to him . Nor did any employee
testify that she had ever made such a statement to any member of
management . The only evidence of any kind even suggesting that any such
statements were ever made is Naftzinger 's hearsay testimony about
Parnelle's alleged statements to him , discussed infra part III,F,1.
18 Employee Audrey Parry, who was admittedly somewhat "confused,"
testified that Naftzinger said that Respondent "had been in lengthy
negotiations and that some of the employees had took it upon themselves to
make a survey, and that they no longer wished to be represented by the
Union ." Employee Roxanna Bush testified that Naftzinger said "that they
had taken a survey of the plant, and a majority of the girls did not want a
union." Employee Reba LaBruyere testified that Naftzinger said that
"negotiation had stopped , due to the union 's part." Except for the limited
support which these witnesses gave each other in the quoted testimony, their
testimony stands uncorroborated . While I think that all three of these
witnesses were honestly trying to tell the truth as they remembered it, I
conclude that they were mistaken in attributing the quoted language to
Naftzinger.
JACKSON SPORTSWEAR CORP. 897
b. The balloting itself
After the foregoing individuals had left the plant, Mrs.
Johnson went to a table in the upper area and the
employees lined up in front of her . Mrs. Johnson gave a
ballot to each in turn and, as she did so, inserted a red
check mark before that employee's name on the list which
Mrs. Johnson had prepared . Mrs. Johnson asked an
employee for her name if, but only if, Mrs. Johnson did not
know it.19 One employee received two ballots, but she drew
this to Mrs. Johnson 's attention and returned one.20 After
Mrs. Johnson had handed out ballots to the employees in
line, she returned the leftover ballots to Naftzinger. At the
hearing, he estimated the number as 20 to 25, but admitted
that he did not count them. Mrs. Johnson also turned over
to Naftzinger the voting list which she had used in giving
out the ballots. At least partly for the purpose of supplying
Respondent's counsel with a copy for his records,
Respondent Xeroxed the list before adding additional
markings, but Naftzinger was unable to recall whether the
Xeroxing was done before or after Respondent knew the
results of the poll.
After receiving their ballots, the employees lined up in
the corridor outside the engineer's office, in which office
they marked their ballots. The box used as a ballot box
(apparently Respondent 's suggestion box) was on a table
partly in the engineer's office and partly in the corridor.
The box had a lid and was unsealed; but before the
balloting began, Snead opened it and ascertained that it
was empty. As each employee marked her ballot and left
the engineer 's office, she folded her ballot and dropped it
into the box.21 The engineer's room is 12 by 14 feet, and
the doorway has no door. Its sole furniture was a desk and
a chair . It contained nothing in the nature of a voting
booth; the employees marked their ballots on any
convenient surface , usually on the desk. During the entire
period of the balloting, Snead, in accordance with
Naftzinger's instructions, stood at a point in the corridor
19 I so infer from the fact that she asked only some of the employees for
their names.
20 Largely because the initial testimony about the return of the ballot
was obtained by Respondent's counsel on cross-examining the first witness
of counsel for the General Counsel who testified about the receipt of two
ballots, Respondent's counsel procured issuance of a subpoena duces tecum
directing counsel for the General Counsel to supply Respondent with the
investigatory file. A motion to quash this subpena was granted by me on the
ground , inter alia, that counsel for the General Counsel had not received
permission to supply these documents from General Counsel Peter Nash, as
required by Section 102.118(a ) of the Board's Rules and Regulations; that
no showing of need had been made ; and that Respondent's requests to
General Counsel Nash that he permit compliance with the subpena had
insufficiently explained to him the basis for Respondent's claim of need.
Respondent failed to exercise its right under Section 102 .26 of the Board's
rules to seek special permission from the Board to directly appeal my action.
In addition to the cases cited in my order granting the motion to quash, see
the Fourth Circuit's subsequent decision in Wellman Industries, Inc v.
N.L.R.B., 85 LRRM 2260.
21 As previously noted , the ballot itself instructed the voter to fold it
before putting it into the ballot box . Moreover , because of the size of the
ballots, they had to be folded before they could be inserted into the aperture
in the box.
22 This practice apparently resulted from the voters ' own sense of
propriety. There is no evidence that they were instructed to follow it,
although Snead testified that he "had been told that they would be let into
the area one at a time."
23 Namely, Bessie Mae English , Cinderella Davis, Rosalind Hickson,
where he could observe both the ballot box and the
engineer's room. Most of the employees waited until the
engineer's room was empty before entering it to mark their
ballots, and went in one by one.22 However, toward the
end of the balloting, at least seven employees marked their
ballots with others in the room.23 There is no evidence that
any of them actually saw how any others marked their
ballots, but neither does the record exclude the possibility
that this happened. Although Snead saw that several voters
were present in the engineer's office at the same time, and
admittedly regarded this as an "irregularity," he made no
effort to stop it. He testified that he saw nothing else
during the balloting which he regarded as an "irregularity."
Employee Virginia Smith testified that "in a way" she did
not "think" she voted secretly, "Because when we had the
other election, we had a door to close."
The engineer's office and the adjacent corridor are out of
sight of both the location where Mrs. Johnson handed out
the ballots and of Respondent's front entrance, which
consists of two glass doors whose total width is about 6
feet. However, Mrs. Johnson's table was about 25 feet from
and in full view of the front entrance 24 Moreover, the most
natural (although not the only) route from her table to the
engineer's office and its corridor is also in full view of the
front door, and it was along this route (whose nearest point
to the front entrance was no more than 5 feet therefrom)
that the employees formed their line waiting to vote. While
the balloting was in progress, Respondent's supervisors
stood outside the front door where they could see the
employees receiving their ballots and waiting to vote and
the employees could see the supervisors.25
After the balloting had been completed, Snead left the
ballot box unattended and out of his sight while he walked
to the end of the corridor (about 12 feet from the ballot
box) to tell an unidentified woman in the lobby that the
voting was over and the persons in the parking lot could
return to the plant. When Naftzinger reentered the plant,
Snead, who was still standing at about the same location,
Elizabeth Turner, Elizabeth Holloway, (Julia) Ann Parrott , and Rosa J.
Cofer. Thomasme Morgan testified that an eighth employee , whose name
was transcribed by the reporter as "Sheme Jean ," went into the voting room
with others . Nobody with precisely this name appears on the voting list,
which does, however, name a "Sarah Jane Hankinson " and a "Sarah J.
Jones." Employee Reba LaBruyere credibly testified that after marking her
ballot, she turned around and saw another , unidentified employee standing
at the door right behind her
24 My finding as to the distance is based on the scale diagram of the
building received into evidence as Resp. Exh. 4 , and on Naftzinger's
testimony about where her table was placed with reference to the diagram.
In view of this evidence , I reject his estimate of 36 to 45 feet , as well as the
estimates of 10 to 15 feet given by other witnesses.
25 This finding is based on the credited testimony of Audrey Parry,
Virginia Smith , Reba LaBruyere, Bessie Mae English, Rosa J. Cofer, and
Thomasine Morgan . I do not credit Naftzmger 's wholly uncorroborated
testimony that so far as he knew, the other persons in the parking lot did not
look into the plant area at all during this period , that he looked through the
doors only once , and that he did so because it was starting to drizzle and he
wanted to see how long the voting line was. Audrey Parry, the only other
witness who was asked about the weather , testified that rain was not falling
nor was it even misty during this period . Moreover, it seems likely that if
Naftzinger were truthful in his testimony that it had started to rain, he
would have been able to recall (as he could not) whether, when he peered
through the doors during this alleged rain, he was protected by a roof
extension or awmng over the doors. In view of these circumstances and the
witnesses' demeanor, I credit the employees and discredit Naftzinger to the
extent indicated
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that the voting was finished and asked whether he
should count the ballots. Naftzinger requested him to do
so.26 Snead thereupon emptied the ballots onto the table
where the ballot box had been placed and counted the
ballots. Nobody else was present at the time. The tally was
47 "yes" votes and 63 "no" votes; there were no blank or
improperly marked ballots.27 Snead wrote this tally on a
sheet of scratch paper, which he brought to Parnelle and
Naftzinger with the oral report that the tally showed 47
votes for the Union and 63 votes "for the Company." 28
Naftzinger then gave Snead a document, which Naftzinger
had phrased and told Mrs. Johnson to type up while Snead
was counting the ballots, reading as follows:
APRIL 26, 1973
TO WHOM IT MAY CONCERN:
I hereby certify the results of a poll taken at Jackson
Sportswear Corp. of North Augusta , South Carolina on
this date reflected the following:
YES vote for the union
NO votes against the union
Refused to Indicate
Signed
Dated
At Naftzinger's request, Snead filled in the figures for the
"yes" and "no" votes based on his own tabulation; filled in
the figure "6" before "Refused to Indicate" based on the
assertion of Parnelle or Naftzinger (probably Parnelle); 29
signed and dated the document; and then left the building
with a copy. Snead was present in the building from 1 p.m.
to shortly after 2 p.m 30
Just as Snead was ready to leave the plant, he was told
(apparently by Parnelle) that Respondent would "make a
donation to the church because of the time that has been
involved in your coming." Snead later received a company
check for $25, signed by Parnelle and made out to Snead
personally. He gave $5 to the church and kept the rest.
c. The announcement of the results
Naftzinger testified that when he went to the plant the
morning of the poll, "the decision still hadn't been made as
to whether we were going to give [the employees] the
results of the poll or not." Accordingly, he testified, after
receiving the results of the poll, he was not sure whether he
was "properly authorized" to give the results to the
employees, and discussed with other members of manage-
ment then at the plant the question of whether to announce
the results of the tally. He went on to testify that he
26 These findings are based on a synthesis of Snead 's and Naftzinger's
testimony . Snead testified that he left the ballot box unattended for about
10 seconds , that nobody was in "that suite of offices" at that time, and that
he could have seen anyone in there or anyone who came in to tamper with
the ballot box . The conversations and events which occurred while Snead
was still at the end of the corridor suggest that Snead somewhat
underestimated the length of time during which the ballot box remained
unattended , and the plan of the building received into evidence suggests
that the ballot box was made accessible to other persons than Snead
supposed . However , I see no reason to believe that any tampering in fact
took place.
21 The ballots themselves were produced at the hearing , although they
were not offered into evidence. The General Counsel made no contention
that Snead 's tally was inaccurate or that the ballots contained any markings
telephoned Argo President Porter , gave him the results of
the poll , and asked him whether to advise the employees of
the result. According to Naftzinger , Porter felt that it
should be announced that afternoon but asked him to
obtain the opinion of Norman Holtz , Respondent's
attorney .31 Still according to Naftzinger, Holtz advised him
to announce the result, whereupon Naftzinger gave
Parnelle this information and left the plant between 3:30
and 4 p.m., 30 to 60 minutes before the end of the
employees ' work day. Respondent announced the results
of the poll to the employees , and posted the results on the
employee bulletin board , on the morning of April 27.
Parnelle did not tell the employees about who witnessed
the count.
E. The Withdrawal of Recognition
On April 27, Smith telephoned Dickinson that he was
"highly embarrassed." Smith stated that he had reported to
Respondent that Dickinson had phoned Smith's office in
his absence, evidently about scheduling another bargaining
session , and had asked Respondent about the availability
of a date. At this point, Smith told Dickinson, Respondent
had told him about the poll, whose tally Smith gave to
Dickinson. Dickinson told Smith that because Respondent
had not released the results of the poll until the next
morning notwithstanding Respondent's alleged promise to
release the results the same day,32 and "knowing how
many people were sympathetic to the union, it was my
opinion that the poll was the reverse of what the Company
claimed it was, and that was why they delayed any
announcement of what they claimed the poll was." Smith
went on to say that his conversation with Respondent
about a date for another bargaining session was when he
found out about the poll, that the poll was taken without
his knowledge or approval, and that he "was not going to
allow that to happen." Still according to Smith, when he
asked Respondent why he had not been told what it was
going to do, Respondent replied that it did not want to
compromise his position with Dickinson. Smith went on to
say that he had asked Respondent the result of the poll and
whether Respondent intended to abide by it, to which
Respondent replied by giving him the tally and stating,
"We don't know. We expect to make a decision in the next
few days as to whether we are going to abide by the
decision, abide by the results of the poll, just what we are
going to do." Smith told Dickinson that when he found out
more he would be in touch with Dickinson, tendered his
apologies, and asserted that he did not intend to be
"undermined in this way" and had been "quite con-
which might serve to identify the voters.
28 Naftzinger testified that the words in quotation marks were , as closely
as he could remember , Snead's exact words.
29 The voting list used by Mrs. Johnson shows that five employees who
were present in the plant on that day did not receive ballots (Ella Green,
Lillie Love, David Peak , Barbara Walker, Barney Woodson).
30 This finding is based on the credited testimony of Snead, a
disinterested witness whose commitments elsewhere would likely have made
him conscious of the time . I believe that the witnesses who specified times
inconsistent with this did so out of faulty recollection.
31 Holtz is not associated with the law firm of which Attorneys Smith
and Rolnick are members.
32 There is no evidence that Respondent in fact made such a promise.
JACKSON SPORTSWEAR CORP.
cemed." Smith further told Dickinson that in Dickinson's
shoes, he would not believe anything Smith said. Dickinson
replied that he took Smith's word for what he said, "that he
did not know what the company was doing, and that they
did not have his knowledge, that he didn't have knowledge
and didn't give consent as to what the company had
done."33 Also on April 27 or on an occasion thereafter,
Smith told Dickinson that he was "not going to represent
people that would do things like that behind his back and
not let him know it."
About May 3, Smith told Dickinson that he would be
receiving Respondent's answer by mail, and that Respon-
dent had agreed to send Smith a copy of it at that time. On
May 7, Dickinson received a letter signed by Plant
Manager Parnelle but prepared at Naftzinger's instruc-
tions. The letter was dated May 3, and read as follows:
By letter dated April 13, 1973, attorney James F.
Smith wrote you concerning extension of the collective
bargaining agreement between Local 315 [sic] and
Jackson Sportswear Corporation.
Without admitting or conceding that Mr. Smith had
appropriate authority to enter into an agreement
extending the collective bargaining agreement beyond
its April 15, 1973 termination date, please consider this
letter as the ten (10) day termination notice called for
in Mr. Smith's letter. Without admitting or conceding
that the agreement is still in effect , notice is hereby
given that the contract will be considered terminated
upon the expiration of the ten (10) day period. You are
advised, as well, that Constangy and Prowell [Smith's
law firm] are no longer our representatives in this
matter.
You are further notified, that this Company has
good reason to doubt the union's continued majority
status. The Company has substantial information,
including the results of a secret ballot, which establish-
es that a majority of employees in the appropriate unit
no longer wish to be represented for the purposes of
collective bargaining by your union.
Accordingly, the Company will not engage in further
collective bargaining negotiations with the union.
A copy of this letter was sent to Smith.
By letter to Pamelle dated May 7, Dickinson asserted
that the Union represented a majority of Respondent's
employees and requested an immediate meeting to resume
negotiations, noting that "by [Attorney Smith's ] request on
your behalf we entered into an extension of the present
agreement pending further word and Congressional action
33 At the hearing, Company Attorney Holtz objected, on the ground of
attorney-client privilege , to Dickinson's testimony about Attorney Smith's
statements regarding Smith 's conversations with Respondent concerning the
poll. Because Attorney Smith's authority extended to making arrangements
with the Union for scheduling negotiations , and because his statements
about the poll were advanced to the Union in connection with his
explanations about why an additional meeting could not then be arranged, I
adhere to my action at the hearing in overruling that objection . McCormick
on Evidence , Title 10, Ch. 24, Sec . 267, pp. 643-644 (2nd Ed ., 1972). In any
event , my ultimate conclusions herein would be the same if this evidence
had been stricken.
34 The bargaining agreement called for a minimum rate of $1.68 an hour.
35 At the hearing, counsel for the General Counsel specifically
disavowed any contention that such conduct constituted an independent
899
on the minimum wage bill." By letter to Dickinson dated
May 11, Parnelle stated, inter alia:
In my letter of May 3, 1973, among other things, you
were advised that because your organization no longer
represented a majority of this company's employees for
collective bargaining purposes the company would not
engage in further collective bargaining with the union.
Therefore, I see no useful purpose in meeting with
you or the union.
The charge herein was filed on May 16, 1973. On May
24, Respondent called all the employees to the front of the
building, where they were addressed by Naftzinger in
Parnelle's presence. Naftzinger stated that the employees
were a "friendly bunch of people." He further stated that
Respondent had made surveys of other plants; that
beginning July 9 the employees would get a raise; that the
minimum wage would go to $1.80; 34 that the existing 20-
percent bonus would be discontinued and put into the
piecerate, and "there would be ten percent depending on
the looseness"; that in 1973 the employees would receive
an additional paid holiday, the day after Thanksgiving;
and that in 1974 the employees would also receive Good
Friday as a paid holiday. The following day, a notice to
this effect was posted on the bulletin board.35
F. Analysis and Conclusions
1. Parnelle's representations to Naftzinger relating
to the Union's support
For reasons set forth infra, the representations made by
Parnelle to Naftzinger regarding the Union's support may
be material to the result herein. Parnelle did not testify,
and the only direct evidence in the record as to what these
representations were is the testimony of Naftzinger. Of
course, the mere absence of directly contradictory testimo-
ny does not require me to accept Naftzinger's testimony in
this respect. N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404,408
(1962). For the reasons stated below, I disbelieve it in part
and believe it in part.36
Assuming (as I do) that Parnelle told the truth to
Naftzinger,37 Dickinson's version of his conversation with
Parnelle conflicts with Naftzinger's version of his own
conversations with Parnelle. While appearing to be a less
intelligent and articulate witness than Naftzinger, Dickin-
son impressed me as a more honest witness. This
evaluation gains particular support from Dickinson's
testimony that his visit to the plant when he conversed with
violation of Section 8(aX5). When asked the relevance of the testimony
about this action , counsel for the General Counsel stated, "This information
is being asked the witness for background information , and Mr. Naftzinger,
I believe, had said . . . to the employees that the union negotiations had
accomplished nothing and we are showing here that something was
accomplished."
36 For the reasons indicated infra fn. 47, and attached text, I would
reach the same result here even if I believed in its entirety Naftzinger's
recital of his conversations with Parnelle . However , because reviewing
authority may disagree , and because of my unique opportunity to observe
the witnesses , I deem it appropriate to make credibility findings.
37 I see no reason to suppose otherwise. In any event , see infra, fn. 47,
and attached text.
w 4
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parnelle about the antiunion postcard occurred on Febru-
ary 7 (rather than "sometime in March," as Naftzinger
testified) -testimony by Dickinson which I would credit
even apart from my views as to his honesty, because I
believe him incapable of really devious testimony. Naft-
zinger testified that on the same day as this visit, Parnelle
reported to him a decrease in the number of dues-payers in
the lobby. Accordingly, Dickinson's credited testimony
about the February 7 date means that if Naftzinger were
telling the truth about the substance of Parnelle's reports,
by early February Naftzinger possessed all of the informa-
tion about dissatisfaction with the Union (other than any
reinforcement arising from Parnelle's alleged subsequent
reports to the same effect) which allegedly led to
Naftzinger's decision 10 weeks later to conduct a poll.
However, Respondent failed to file a representation
petition in early February (when such a petition would not
have been subject to a contract bar) but, instead,
proceeded to discuss a new contract with the Union.
Respondent's conduct in this respect is inconsistent with
Naftzinger's testimony that Parnelle questioned the Un-
ion's majority to him on and before February 7, but
corroborates Dickinson's testimony that on that date
Parnelle told him that Parnelle did not think Dickinson
had any reason to "worry" about the Union's losing its
majority.38 Moreover, it seems likely that Argo President
Porter (who participated in the decision to conduct the
poll) would have either participated in conversations about
the Union's support or received reports from Naftzinger
about their contents; yet Porter did not testify, nor was his
absence explained.39 For the foregoing reasons, I credit all
of the testimony of Dickinson summarized in the last
paragraph of part III,A; and discredit Naftzinger's
testimony (1) that Parnelle told him that Parnelle had been
approached with an inquiry about how to get rid of the
Union; (2) that Naftzinger told Parnelle in this connection
(see infra part III,F,2,b) not to assist the employees in this
matter; (3) that Parnelle told him that Parnelle had advised
Dickinson that he was not aware of the antiunion
postcards and would stop any solicitation for signatures
thereon during working hours (Dickinson having credibly
testified to an admission by Parnelle that he knew about
the postcards); and (4) except to the extent indicated in the
next paragraph, that Parnelle had talked to him about the
alleged lack of majority or employee disinterest in the
Union in late January or early February, and then on
several occasions thereafter (Dickinson having credibly
testified that Parnelle told him on February 7 that Parnelle
38 See Bally Case and Cooler, Inc., 172 NLRB 1127, 1128, enfd . 416 F.2d
902 (C .A. 6, 1969), cert . denied 399 U.S . 910 (1970); King Radio Corporation,
208 NLRB No. 82.
39 See International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America [GyrodyneJ v. N.L.R. B., 459 F .2d 1329,
1335-46 (C.A.D.C., 1972); Golden State Bottling Co., Inc., v. N.L.R. B., 414
U.S. 168 (1973).
40 Brooks v. N.L.R. B., 348 U.S. 96; Terrell Machine Company, 173 NLRB
1480, enfd . 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U .S. 929;
did not think Dickinson had anything to worry about in
connection with the antiunion activity).
However, I do believe Naftzinger's testimony that
Parnelle reported to him that fewer employees than
previously were paying their dues through the steward in
the plant lobby. In so finding, I note that steward Audrey
Parry, who collected the dues paid in this manner, was the
second witness called by counsel for the General Counsel
and was present in the hearing room throughout the
hearing, but was not asked about whether this report, if
made, would have been true. Because of Naftzinger's
testimony that he received this report on the same day as
Dickinson's visit to the plant, and because of Dickinson's
credible testimony that this visit occurred on February 7, I
find that Naftzinger received the report on that date.
2. Whether Respondent violated Section 8(a)(5) of
the Act
a. Introduction and controlling principles, bargaining
negotiations prior to the withdrawal of recognition
During the first year following certification, a union is
entitled to a virtually irrebuttable presumption of majority
support and, therefore, an employer must bargain with it
whether or not he believes that the union in fact enjoys
such support. After the end of the certification year, the
presumption of majority support remains but is rebuttable.
Where an employer entertains doubts about the union's
majority support following the end of the certification year,
the better practice is for him to keep bargaining and
petition the Board for relief. However, he may lawfully
withdraw recognition without filing such a petition where
he can prove that the union no longer enjoys majority
support or that he reasonably has a good-faith doubt,
based upon objective considerations, of such support 40
To be sure, "the majority issue must not have been raised
by the employer in a context of illegal antiunion activities,
or other conduct by the employer aimed at causing
disaffection from the union or indicating that in raising the
majority issue the employer was merely seeking to gain
time in which to undermine the union." Celanese Corpora-
tion of America, 95 NLRB 664, 673, cited with approval in
Brooks, supra, 348 U.S. at 104, fn. 18. I discuss infra
whether the poll constituted such " illegal anti-union
activities, or other conduct . . . aimed at causing disaffec-
tion." However, it is probable that acceptance of the
complaint allegations of bad faith in Respondent's .pre-
withdrawal negotiations would in any event preclude
N.L.R.B. v. Rish Equipment Company, 407 F.2d 1098, 1100-01 (C.A. 4,
1969); Automated Business Systems, a Division of Litton Business Systems,
Inc., 205 NLRB No. 35; and cases cited . Cf. Tungsten Mining Corp. v.
District 50, United Mine Workers of America, 242 F.2d 84, 91-93 (C.A. 4),
cert. denied 355 U.S. 821; N.L.R.B. v. White Construction & Engineering Co'.,
204 F.2d 950, 953 (C.A. 5). Where a union is party to a collective bargaining
agreement , its recognition rights before and after the agreement 's expiration
are quite similar to those of a certified union during and after the
'certification year. Automated Business Systems, supra ; King Radio, supra,
208 NLRB No. 82.
JACKSON SPORTSWEAR CORP. 901
Respondent from raising the majority issue as a defense to
such withdrawal .41 I do not find that Respondent negotiat-
ed in bad faith . Were I satisfied that the issue had been
fully litigated , I would regard as highly persuasive of bad-
faith motivation, both in negotiations and in withdrawing
recognition , Respondent's action in announcing a general
wage increase (applicable to piece as well as hourly rates)
after terminating the contract extension and withdrawing
recognition , notwithstanding Respondent 's successful re-
quests for postponement of wage discussions with the
Union because of the possible effect on piecerates of
pending Congressional consideration of increases in the
minimum wage . Absent some other explanation of this
change of heart , I would ascribe it to Respondent's
intervening severance of its relationship with the Union
-allegedly on the basis of the ballots cast by the "friendly
bunch" of employees whom it was giving a wage
increase-and, therefore , would conclude that Respon-
dent 's earlier failure to make a wage offer was motivated
by the fact that the employees were seeking a wage
increase through their bargaining representative rather
than individually .42 However, in view of the exceedingly
limited purpose for which counsel for the General Counsel
tendered this evidence (supra, fn. 35), Respondent was not
called upon to explain this action . Accordingly , I do not
base a finding of bad -faith bargaining on Respondent's
conduct with respect to wages.
Nor do I agree with counsel for the General Counsel that
bad faith in negotiations is established by Naftzinger's
testimony that Attorney Smith did not have authority to
enter into "any agreements" with the Union. While the
extent of the agent 's power to bind the employer may be a
factor worthy of consideration in determining whether the
employer negotiated in good faith , the employer's failure to
confer competent authority to permit his agent to enter
into binding agreements is not necessarily probative of bad
faith . Nor can an employer be faulted for failing to give his
agent the authority to make final on-the -spot commitments
on contract proposals without an opportunity to consult
with his principal . KXTV (Great Western Broadcast Corp.),
139 NLRB 93, 130 . In the instant case , Dickinson's
testimony that the parties specifically understood that any
agreement reached during these negotiations was tentative
and subject to reaching agreement on an entire contract,
and that this was Dickinson 's usual practice , indicates that
the Union was able to adapt its bargaining techniques and
strategy to the limitations on the authority of Respondent's
41 The complaint alleges bad-faith bargaining beginning February 6,
1973-a date less than 6 months prior to both the filing of the rharge and
the issuance of the complaint At the hearing, Respondent's counsel
contended that Section 10(b) barred any complaint allegations of unfair
labor practices occurring prior to May 3, 1973, the earliest date specified in
the charge's refusal-to-bargain allegations I then advised counsel that if he
adhered to this Section 10(b) contention, I wished him to discuss Radio
Officers' Union v. N L R B, 347 U S 17, 34, in 30, N L R B v Fant Milling
Co, 360 U S 301 (1959); and NLRB. v Central Power & Light Co, 425
F.2d 1318, 1320-22 (C.A. 5, 1970) Counsel's brief makes no contention that
any part of the complaint is time barred The cited cases call for rejection of
any such contention
42 " the automatic wage increase system which was instituted
unilaterally was considerably more generous than that which had shortly
theretofore been offered to and rejected by the union Such action
conclusively manifested bad faith in the negotiations, N L R B v Crompton
Highland Mills, 337 U S 217, and so would have violated § 8(a)(5)
representatives. Nor did Respondent repudiate any of the
agreements reached during the bargaining meetings; its
later conduct in questioning Smith's authority to bind it to
the extension agreement occurred in connection with
Respondent's withdrawal of recognition.43 Accordingly,
the evidence fails to suggest that the alleged limitations on
Smith's authority impeded the progress made during the
two negotiating sessions which actually took place.
Further, Naftzinger credibly testified that he and Porter
received "immediate reports following each meeting that
took place," both from Parnelle and from Respondent's
attorneys; and I cannot assume that Respondent would
not have been represented by agents with greater authority
had the course of subsequent negotiations shown a need
therefor. Accordingly, I reject the contention that the
alleged limitations on Smith's authority call for a finding
that Respondent bargained in bad faith.
b. Nonpoll evidence regarding the Union's majority
and Respondent's alleged doubt thereof
At least where, as here, the Union had previously
established its majority status through a Board-conducted
certification election, only "strong evidence" of objective
grounds is sufficient to form a reasonable basis for
believing that the Union has lost its majority status. King
Radio, supra, 208 NLRB No. 82. Laying the results of the
poll to one side, the only objective considerations which
are shown by the credited evidence, and on which
Respondent could have based a doubt as to the Union's
majority, are the turnover subsequent to the September
1971 certification election, the Union's three or four vote
margin of victory, and Parnelle's unrefuted February 7,
1973, statement to Naftzinger that fewer employees than
previously were paying dues to the union steward in the
plant lobby where management could see them. The only
additional credible evidence adverted to by Respondent to
overcome the presumption of majority is the evidence that
only 15 of Respondent's employees attended the February
6 union meeting. Particularly in view of Plant Manager
Parnelle's February 7, 1973, admission to Dickinson that
Parnelle either knew or had heard "something about"
supervisors' telling employees that the Union was holding
them back from a wage increase, an extra holiday, and
other things,44 I find that the foregoing evidence is
insufficient to rebut the presumption of continued majority
support, and that the objective considerations known to
though no additional evidence of bad faith appeared even after an
impasse is reached [the employer] has no license to grant wage increases
greater than any he had ever offered the union at the bargaining table, for
such action is necessarily inconsistent with a sincere desire to conclude an
agreement with the union." N L R B v. Katz, 369 U S 736, 745 (1962) I
note that the Federal minimum wage provisions were not changed between
April 11, 1973, when Respondent successfully requested postponement of
wage discussions "pending further word and Congressional action on the
minimum wage bill," and May 24, 1973, when Respondent announced a
wage increase beginning July 9
43 Moreover, it appears that Respondent never took any action
inconsistent with the extension agreement until after it had expired because
Respondent had exercised its termination rights thereunder
44 Parnelle's status as plant manager renders this admission binding on
Respondent McCormick on Evidence, Title 10, Ch 26, Sec. 267, p 641
(2nd Ed, 1972).
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent prior to May 3 were insufficient as a predicate
for a reasonable doubt of majority.45
Further, and still laying the result of the poll to one side,
I conclude that on May 3 Respondent did not have a good-
faith doubt of the Union's majority. Naftzinger testified
that he doubted the Union's majority because of, inter alia,
Parnelle's alleged reports to him about employee disaffec-
tion from the Union. However, as I have previously found,
significant portions of these alleged reports were never in
fact made. Moreover, Dickinson's credited testimony
establishes that Parnelle had reason to believe that
Respondent's supervisors had been engaging in an antiun-
ion campaign of questionable propriety. Because of
Parnelle's plain duty to disclose information of this kind to
Respondent's industrial relations manager, and because of
Naftzinger's testimony (which, however, he attached to
alleged reports by Parnelle which I find were not in fact
made) that he warned Parnelle that he could not lawfully
help the employees get rid of the Union, I conclude that
Parnelle reported his knowledge or suspicions of this
antiunion supervisory activity to Naftzinger. Because
Naftzinger's testimony thus based his alleged doubt partly
on his own untruthful version of Parnelle's reports and
partly on a report of employee conduct (failure to pay dues
publicly) which logically flowed from actual or suspected
supervisory conduct which Naftzinger described as unlaw-
ful, because Respondent continued to recognize and
bargain with the Union (without filing a Board representa-
tion petition) after Naftzinger received Parnelle's February
7 report about such employee conduct, and because of
Naftzinger's unpersuasive demeanor when testifying about
Respondent's alleged doubts, I conclude that such doubts
were not entertained in good faith46
Moreover, I would reach the same result even assuming
that Naftzinger was truthfully describing Parnelle's state-
ments to him. As is established by Dickinson's credible
testimony, Parnelle believed as of February 7 that the
Union seemed in no danger of losing its majority status,
and that supervisors may have been engaging in antiunion
activity of questionable propriety. Accordingly, even
assuming that Parnelle concealed all this from Naftzinger
and instead made the untruthful statements which Naft-
zinger attributed to him, and further assuming that
Naftzinger was deceived thereby, I conclude that Parnelle's
persuasions were attributable to Respondent for the
purpose of determining whether it acted in good faith in
withdrawing recognition.47 Plainly, such persuasions are
wholly inconsistent with any claim of good-faith doubt of
majority.
Accordingly, I proceed to the question of whether,under
the circumstances, the results of the poll overcome the
presumption of majority or, if not, call for a finding of a
good-faith doubt of majority based on objective considera-
tions.
45 Massey -Ferguson, Inc., 184 NLRB 640, enfd . 78 LRRM 2289 (C.A. 7,
1971); Little Rock Downtowner, Inc., 168 NLRB 107, 108,111-112, enfd. 414
F.2d 1084 (C.A. 8, 1965 ); N. L. R. B. v. John S. Swift Co., 302 F .2d 342, 345
(C.A. 7, 1962); Ranch-Way, Inc., 203 NLRB No. 118, In. 7.
48 See Walton, supra, 369 U.S. at 408; Stresskin Products, Co., Division of
Tool Research and Engineering Corp., 197 NLRB 1175 ; N. L.R.B. v. James
Thompson & Co., Inc., 208 F . 2d 743, 745-746 (C.A. 2); Bally Case and
Cooler, supra at 1128; Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d
c. The validity of Respondent's reliance on the poll
(1) Mrs. Johnson's duties and title
It seems convenient to treat at this point the disputed
testimony regarding Mrs. Johnson, the alleged materiality
of which is discussed infra. Ultimate responsibility for
establishing Respondent's labor relations policies is vested
in Arthur M. Porter, who is president of American Argo
Corporation-a corporation which has seven plants in
various parts of the country and which, like Respondent, is
the wholly owned subsidiary of Consolidated Apparel, Inc.
Naftzinger testified that as Argo's industrial relations
director, he is "responsible for policy proposals, working
with the President of the company in determining labor
relations practices and policies for" Respondent. Naftzing-
er's office is in Schuylkill Haven, Pennsylvania, whereas
Respondent's plant is in North Augusta, South Carolina;
and between the date he assumed his post with Argo
(January 1, 1973) and the date of the poll (April 26, 1973)
he had visited the plant on three or four occasions of
perhaps a day's duration each. Naftzinger testified that
Respondent's plant manager, Parnelle, "was in line and I
am in staff. He would come to me for functional advice
concerning industrial relations, but beyond that, I had no
authority over Mr. Parnelle and he had no authority over
me."
Edith Johnson worked in the office area of Respondent's
South Augusta plant. She performed some secretarial
duties. She took care of employees' insurance and gave
them hospitalization-insurance and other forms. Using the
telephone, she relayed the plant manager's questions about
interpretation of personnel policies (such as equal employ-
ment opportunity requirements) to Naftzinger, and relayed
his replies to the plant manager. In addition, she prepared
written employee turnover and equal employment oppor-
tunity reports. She had no discharge power, which resided
only in the plant manager, nor had she power to give wage
increases, send people home, or discipline them.
Mrs. Johnson was the only individual a prospective
employee was required to talk to. She assisted an applicant
in filling out his or her own application, if such assistance
was necessary; administered manual dexterity tests; and
asked-noting the answers on the application-about
babysitting arrangements, references, and former employ-
ers. During the investigation of this case, Holtz and
Naftzinger told field investigator Jack Ruby that Mrs.
Johnson "hired people, but that she hired people according
to some kind of format given to her, some kind of
regulation, some kind of requirements of an employee that
were given to her. But that she did, took these employees
and hired them." Management further told Ruby that Mrs.
Johnson screened employees into a fixed, established
pattern that she did not establish, but is established for her;
that when the plant manager needed employees, he asked
466, 470 (C.A. 9, 1966).
97 See Terrell Machine, supra at 1481 -82; United Electric Co., 199 NLRB
No. 110; Massey-Ferguson, supra; Riggs Distler & Co. v. N.L.R.B., 327 F.2d
575, 579-580 (C.A. 4,1963); UnitedAircraft Co. v. N.L.R.B., 440 F.2d 85, 92
(C.A. 2, 1971); N.L.R.B. v. E.D.S. Service Corp., 466 F.2d 157, 158 (C.A. 9);
U.S. v. Struck Construction Co., 96 Ct. C1. 186 , 221. But see Stresskin
Products, supra; Automated Business Systems, supra, 205 NLRB No. 35.
JACKSON SPORTSWEAR CORP.
her whether she had anybody who had met those
qualifications ("I need X number of people that can do this
or do that"); and that she then gave the plant manager, for
his final approval, the people's names and their folders.
When asked whether Mrs. Johnson could recommend
hiring, Naftzinger testified:
Recommend, in a very loose sense , yes. If, for
example, we had ten applicants and two of them
obviously weren't qualified, those two would not be
recommended, as opposed to the other eight being
recommended for, let's say, three openings. So that Mr.
Parnelle, or the supervision, would have eight pieces of
paper to look at, to determine what three or four of
them they might want.
So, in a very loose sense of the word, yes, she would
recommend.
Three employee witnesses called by counsel for the
General Counsel48 testified that in advising the employees
that Mrs. Johnson would distribute the ballots for the poll,
Naftzinger described her as the "personnel manager."
Naftzinger testified that he referred to her as the "person-
nel clerk." In view of the absence of any testimony directly
corroborating Naftzinger,49 and the witnesses' demeanor, I
find that he described her as the "personnel manager."
Employee Roxanna Bush testified on direct and on cross-
examination that in March 1973, when she asked Plant
Manager Parnelle about a job for a friend, Parnelle told
Mrs. Bush that "Edith Johnson was in charge of all the
hiring" and that she was the "personnel manager ." Because
Mrs. Bush impressed me as a wholly honest witness, and
because her undisputed testimony is indirectly corroborat-
ed by the uncontradicted evidence regarding Mrs. John-
son's duties and the credited testimony regarding her title,
I credit Mrs. Bush's testimony in this respect notwithstand-
ing her failure to refer to this statement when describing
this incident on redirect examination.
(2) The alleged extension of the 1972 agreement
It also seems convenient to treat at this point the
disputed issue , whose alleged materiality is discussed infra,
of whether Respondent was bound by the purported
extension of the collective-bargaining agreement beyond
its April 15, 1972, expiration date. As previously found, a
few days before that date, Company Attorney Smith
agreed, purportedly on Respondent's behalf, to extend the
agreement indefinitely, subject to 10 days' termination
notice by either party. Naftzinger testified that Porter told
him Smith had no authority to make such an agreement on
Respondent's behalf. Neither Porter nor Smith testified.
Because Smith did represent Respondent during the
48 Virginia Smith , Reba LaBruyere , and Rosa Cofer.
49 Although Respondent still has in its employ a number of executives
and supervisors who were present on this occasion (supra fn. 17), the only
other witnesses called by it were Snead and several employees , none of
whom was asked about the title Naftzinger attached to Mrs . Johnson on this
occasion . I ascribe to faulty recollection the testimony on cross-examination
of employee Audrey Parry, called by counsel for the General Counsel, that
nobody from the Company had ever told her that Mrs. Johnson was the
personnel manager (see supra, fn. 18). On cross -examination, employee
Roxanna Bush (called by counsel for the General Counsel) replied "Right"
903
negotiations, because he tendered this agreement in lieu of
scheduling additional meetings while the minimum-wage
change was still uncertain, because until May 3 Respon-
dent never suggested to the Union that Smith's action
failed to bind Respondent50 even though Naftzinger on
April 16 admittedly received a copy of Smith's letter
confirming the April 11 oral extension agreement, and
because Respondent admittedly continued to observe the
terms of the bargaining agreement until at least May 3,
1973 (but no later than July 8, 1973), 1 conclude that as of
April 26, 1973-the date of the poll-Respondent had
ratified the extension agreement and was bound thereby,
whether or not Smith had actual or apparent authority to
bind Respondent thereto in the first instance. N.L.R.B. v.
Coletti Color Prints, Inc., 387 F.2d 298 (C.A. 2, 1967);
Roadway Express, Inc., 170 NLRB 1146, 1448.
(3) The evidentiary value of Respondent's poll
The 1947 amendments added, to the provisions in the
original 1935 Act for union-requested Board elections,
specific provisions for Board elections at the behest of
employers and employees. Nevertheless, neither before nor
after these additions has the Board held that an employer
is obligated to continue honoring a certification with
respect to his employees until the certification is rescinded
by the Board itself. Rather, as previously noted, the Board
permits the employer to withdraw recognition after the end
of the certification year where he can prove that the union
no longer enjoys majority support or that he reasonably
has a good-faith doubt, based upon objective considera-
tions, of such support. So far as I am aware, the Board has
never set forth a complete and self-contained explication of
its reasons for thus permitting an employer to resort to self-
help. However, it appears that this Board policy is based
partly on the view that the certification should not require
the employer to recognize a union as its employees'
representative where, but for the certification, such
recognition would constitute an unfair labor practice
violative of such employees' rights; partly on the seeming
incongruity of requiring a Board election to unseat a
recognized but uncertified union, whose agreement with
the employer is for reasons of industrial stability afforded
much the same effect as a certification; and partly on
reluctance to impose an unfair labor practice finding on an
employer because he made an honest and reasonable
mistake as to the fact of the union's support, particularly in
view of the limitations imposed, both by his lack of access
to union records and meetings and by Section 8(a)(1), on
his ability to find out the truth. While for these reasons the
Respondent's withdrawal of recognition is not conclusively
rendered improper by the fact that the Board has never
rescinded the Union's certification, the weight (if any) to
to the question , "Right, and that the employees would get a ballot from the
personnel clerk, Edith Johnson"; but I do not believe she regarded counsel
as purporting to quote Naftzinger's exact words . Employee Bessie Mae
English testified that she "wasn't paying too much attention" during the
prepoll speeches, and she corroborated neither the other employees' nor
Naftzinger's version of the title he attached to Mrs. Johnson.
50 Even then, Respondent merely advised the Union that Respondent
was not "admitting or conceding that Mr. Smith had appropriate authority"
to extend the agreement.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be given to Respondent 's private "election" in determining
the legality of such withdrawal is related, at least to some
extent, to whether the Board would have rescinded the
certification on the basis of a Board election held under
comparable circumstances. More specifically, in determin-
ing whether the results of Respondent 's "election" consti-
tute reliable evidence of the employees' desires, the
standards used by the Board in evaluating a Board
election-which is intended to produce such evidence-are
herein relevant, at the very least, to the extent that these
standards are intended to assure the employees a free and
informed choice .51 Respondent's "election" fell significant-
ly short of such standards.
Thus, Respondent conducted its "election" without
giving the employees or the Union any advance notice
whatever. Nonetheless, immediately prior to the "election,"
Respondent delivered a speech to its assembled employees
asserting that a "large number of this plant's employees
voluntarily have informed management that they no longer
wish to be represented by this union," that Respondent's
contract with the Union had expired about 10 days earlier,
and that "nothing very much [had] been accomplished"
during the negotiations for a new contract. Such state-
ments cannot be equated (as Respondent's brief suggests)
with "addressing the employees to explain the purpose of
the poll." Rather, these allegations were calculated to
induce employees to vote against the Union.52 According-
ly, they would have invalidated any Board election
conducted immediately thereafter, because "the combined
circumstances of (1) the use of company time for
preelection speeches and (2) the delivery of such speeches
on the eve of the election tend to destroy freedom of choice
and establish an atmosphere in which a free election
cannot be held." Peerless Plywood Company, 107 NLRB
427, 429-430. I can perceive no reason why a private
"election" would be less vulnerable to such a speech than a
Board election would be.
Moreover, Peerless Plywood found such a last-minute
address objectionable on the ground that, "Such a speech,
because of its timing , tends to create a mass psychology
which overrides arguments made through other campaign
media and gives an unfair advantage to the party, whether
employer or union, who in this manner obtains the last
51 1 discuss infra the relevance vel non of Board election requirements
primarily designed to achieve other purposes.
52 Thus, this speech led Snead , who had had no previous contact with
Respondent , to characterize "No" votes as votes "for the Company."
53 See also, Michem, Inc., 170 NLRB 362:
... the potential for distraction , last minute electioneering or
pressure, and unfair advantage from prolonged conversations between
representatives of any party to the election and voters waiting to cast
ballots is of sufficient concern to warrant a strict rule against such
conduct , without inquiry into the nature of the conversations . The final
minutes before an employee casts his vote should be his own, as free
from interference as possible . Furthermore, the standard here applied
insures that no party gains a last minute advantage over the other
54 National Labor Relations Board Field Manual , Sections 11302.1,
11314. The Board follows this practice because "an employee who has had
an effective opportunity to hear the arguments concerning representation is
in a better position to make a more fully informed and reasonable choice."
Excelsior Underwear, Inc., 156 NLRB 1236, 1240; N.L.R.B. v. Wyman-
Gordon Co., 394 U.S. 759, 767 (1969); N.L.R.B. v. Hanes Hosiery Division,
384 F.2d 188 , 191 (C.A. 4, 1967) ("An informed electorate is essential if the
result of an election is to be accorded its intended significance and
most telling word ... noncoercive speeches made prior to
the proscribed [24-hour] period will not interfere with a
free election, inasmuch as our rule will allow time for their
effect to be neutralized by the impact of other media of
employee persuasion." 107 NLRB at 429-430.53 Here,
however, Respondent's action in scheduling its "election"
without notice-contrary to the invariable practice in
Board elections-54 aggravated the election prejudice
described in Peerless Plywood by wholly forestalling any
anticipatory (let alone after-the-fact) union response to
Respondent's "election" representations about whether the
Union had been able to retain for the employees the
protection of a current bargaining agreement and how
likely the Union would be able to gain them the benefit of
a new agreement in the foreseeable future, which state-
ments were plainly material to the desirability of continued
Union representation and were, at least arguably, inaccu-
rate. Further, Respondent's conduct in delivering antiun-
ion arguments in the same speech which announced the
poll effectively prevented the employees from preparing
themselves for an informed choice by asking the Union or
the employee members of the negotiating committee about
such matters,55 or about whether in truth many of their
fellow employees had told Respondent that they were
dissatisfied with the Union.56 For these reasons I regard as
beside the point (and, therefore, do not reach) Respon-
dent's contention that partly because the truth of such
statements was allegedly merely a matter of opinion,57 they
would not have invalidated a Board-conducted election-a
contention which rests entirely on cases where the Union
and the employees had had advance notice of the election
and the timing of the statements did not disregard Peerless
Plywood Respondent's abrupt scheduling of its "election"
forestalled any investigation or discussion of the matter
-including any such investigation or discussion which
would likely be prompted by mere awareness of a pending
election, whether or not Respondent had already raised
these issues-and, therefore, "tend[ed] to interfere with
that sober and thoughtful choice which a free election is
designed to reflect" (Peerless Plywood, supra at 429). For,
"It is obvious that where employees cast their ballots upon
the basis of a material misrepresentation, such vote cannot
reflect their uninhibited desires , and they have not
accomplish its aim.")
85 I note that because the Union's last regular monthly meeting prior to
the poll was held on April 3, the Union could not have used this meeting to
advise employees either of the agreements reached during the second and
last bargaining session held on April 4, or of the April I1 extension
agreement.
56 Counsel for the General Counsel asserts in his brief that Naftzinger
engaged in misrepresentation when stating that a "large number" of
employees had made such statements to management . However, the record
merely fails to contain any probative evidence that any such employee
expressions were made , or that Naftzinger had any reason to believe (either
from any conversations of his own with employees , or from reports received
from other members of management ) that his representations to the
assembled employees were true (see supra, fn. 17). Cf. Gyrodyne, supra, 459
F.2d at 1335-46.
57 As found supra part III,F,c(2), Naftzinger was in fact wrong in his
statement that the contract had expired . Indeed, some 10 days earlier he
himself had received a copy of the extension agreement signed by
Respondent 's attorney, but (so far as the record shows) Naftzinger had
never previously told anyone that he did not regard the agreement as
binding.
JACKSON SPORTSWEAR CORP.
exercised the kind of choice envisaged by the Act."
Hollywood Ceramics Co., Inc., 140 NLRB 220, 223.58
Respondent's failure to give any advance notice of the
poll meant, in addition, that nine employees on the voting
list who could not vote because they had left early, were
absent, or were on maternity leave had no opportunity to
make arrangements to participate therein (see infra, fn.
60) . 59
Moreover, the ballots in this case were handed out by
Mrs. Johnson (whom Respondent had just described to the
employees as its "personnel manager"); Respondent's
management watched the employees receive or "refuse"
their ballots, and line up to vote, in full view of the
employees; Mrs. Johnson made and gave to Naftzinger
(admittedly a management representative) a list of the
employees who voted, who "refused" ballots, or who for
other reasons failed to vote; and some of the employees
voted under circumstances where (to their knowledge or
not unwarranted belief) other employees could have seen
how they voted. In these respects, Respondent's conduct of
its "election" failed to meet standards required in Board
elections to avoid the exertion of undue influence by any
party and-by assuring each employee that his privacy was
protected in any choice he may have made (including a
decision to acquiesce in the decision of a majority of his
fellows rather than himself to vote)-to limit the influence
of fear of reprisal, social pressures, and bandwagon
psychology.60 In view of the size of the workforce (about
120) and the absence of any claim that any other individual
except the plant manager had any contact with applicants,
I am inclined to think that Mrs. Johnson's admitted power
to recommend against the hire of employees who "obvious-
ly weren't qualified," and her duty to comply with the
plant manager's requests for the names of applicants who
could do particular tasks required for the jobs for which he
was selecting employees, called for the exercise of
independent judgment in such hiring recommendations
and, therefore, rendered her a supervisor within the
meaning of Section 2(11) of the Act. In any event, the
"personnel manager" title which Respondent publicly
attached to her, her visible participation in much or all of
those portions of the hiring procedure known to the
employees, and the reinforcement lent during the poll to
her special status by admitted management's concomitant
appearance outside the door, closely identified her with
management in the eyes of the employees. Accordingly, I
conclude that a Board election would have been set aside if
she had merely acted as Respondent's observer.61 More-
58 Cf. N.L.R.B. v. H. P. Wasson and Co., 422 F.2d 558, 560 (C.A. 7),
where the employees expressed their choice without any prior expression of
views by management ; and Taft Broadcasting, 201 NLRB No. 113, where
the employer's announcement of the poll merely "as a whole lack[ed] the
neutral tone of the Board 's official notices of the election ." Further, in Taft
Broadcasting, the employer overstated the length of the 2-year period during
which he had had no union agreement rather than , as here , making the more
material misstatement that the employees were not currently protected by a
bargaining agreement.
59 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, where all eligible
employees were asked to attend the "important meetings"-although not
advised of their purpose-at which the poll was taken.
60 Brooks, supra, 348 U.S. at 99-100; Piggly-Wiggly #011, 168 NLRB
792; Imperial Reed & Rattan Furniture Co., 118 NLRB 911; Performance
Measurements, Inc., 149 NLRB 1451, 1453; and cases cited infra, fn. 61. As
previously noted , at least 7 employees cast ballots while others were in the
905
over, the undue influence that her mere presence as an
observer would have exerted toward an antiunion vote in a
Board election was aggravated in Respondent's private
"election" by Respondent's failure to accord the Union the
opportunity which it would have had in a Board election to
select a rank-and-file employee as an observer of its own,
and the fact that "personnel manager" Johnson was in sole
charge of ascertaining eligibility and handing out the
ballots 62
For the foregoing reasons, I conclude that whether
standing alone or in conjunction with other circumstances
relied on by Respondent, the result of Respondent's poll
failed to constitute evidence sufficiently strong and reliable
to overcome the presumption of majority created by the
Union's certification (based on a Board election with
safeguards significantly absent from Respondent's poll)
and its active representation of unit employees in the
administration of the 1972 contract and its extension and
in the negotiations for a new agreement. Because all of the
circumstances of the poll were known to Respondent, the
same considerations call for the conclusion that the poll
did not create objective circumstances on which Respon-
dent could base a good-faith doubt of majority support 63
Moreover, for the reasons set forth infra part III,F,3, I find
that Respondent's conduct of the poll violated Section
8(a)(1) of the Act, and that Respondent decided on and
structured its poll with the intent to procure a union defeat.
Accordingly, Respondent could not in any event use that
defeat as a basis for urging good-faith doubt. N.L.R.B. v.
Sky Wolf Sales, 470 F.2d 827, 830 (C.A. 9).64
This result gains support from Respondent's failure to
observe, in conducting its poll, certain Board practices
which are intended not so much to enable the employees to
mark their ballots (or refrain from voting) freely and
informedly, as to assure all affected persons that the
announced result accurately reflects what these ballots
showed.65 Where the tally shows a union victory, confi-
dence in the tally's accuracy fosters a stable and productive
bargaining relationship by instilling respect for the union
in the employer; self-respect, confidence, and a sense of
responsibility in the union; and conviction in the employ-
ees that the union has both the right and the duty to make
decisions affecting their conditions of employment. More-
over, regardless of the results of the tally, all parties'
confidence in its accuracy promotes industrial peace by
assuring even those dissatisfied with the result that they
received their fair chance. To accomplish these ends, the
Board's procedures call for the union and the employer to
room , and Respondent's list named all 14 nonvoters (5 being specifically
named as having "refused" to vote, and 9 as absent during the unheralded
poll) and all voters. The plurality shown by the tally was 16.
61 International Stamping Co., Inc., 97 NLRB 921, 922-923; Owens-Parks
Lumber Co., 107 NLRB 131, 132; Herbert Men's Shop Corp., 100 NLRB 670,
671; Harry Manaster & Bro., 61 NLRB 1373, 1374.
62 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, where the only
nonvoters present during the polling were a member of an outside firm of
certified public accountants and a Pinkerton guard.
63 Cf. Automated Business Systems, supra, 205 NLRB No. 35.
84 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, fn. 4, where no
allegations were made that the safeguards required by the Board for holding
private polls were violated.
65 To be sure, a philosopher might argue that an employee cannot be
really free in marking his ballot unless he is persuaded that the ballot will be
counted and not ignored.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspect the ballot box, to make sure it is empty, and to
watch it being sealed (except for the ballot slot); for
nonsupervisory employee observers selected respectively
by the employer and the union; for the sealing of the ballot
slot immediately after the closing of the polls; for a neutral
person (the Board agent) thereafter to retain custody of the
ballot box at all times prior to the tally; for the presence of
all parties during the unsealing of the ballot box and the
counting of the ballots; and for immediate release of the
results upon completion of the tally.66 Moreover, a Board
agent who conducts an election usually tries to account for
all of the ballots printed for the election. However, the
procedure followed by Respondent here was likely to
create serious question in the minds of the employees and
the Union about whether the result eventually announced
by Respondent was in fact the real one. Thus, Respondent
did not give the result to the employees until the morning
after the poll, whose result Respondent had learned early
in the preceding afternoon. In view of Respondent's openly
expressed desire for a vote against the Union, Respon-
dent's delay would naturally tend to (and, at least to Union
representative Dickinson, did) render the announcement
suspect. Such suspicions would likely be aggravated by the
fact that neither a union representative nor any of the
employees had seen the ballots counted, their ignorance of
who had counted them, their lack of opportunity to assure
themselves that the "ballot box" was initially empty, the
fact that the "ballot box" was never sealed, and the fact
that after being counted the ballots were at all times (as the
employees must have suspected) in the custody of
Respondent-which had openly urged the employees to
vote against the Union, had itself prepared the ballots, and
might well have (indeed had in fact) ballots left over with
which it could stuff the ballot box or substitute ballots.67
To be sure , Respondent gave Snead a copy of the tally
which he had signed, but there is no reason to suppose that
the employees knew this 88 Further, Mrs. Johnson's error
in giving two ballots to one employee might suggest to the
employees that the announced tally could be inaccurate
through carelessness-as, indeed , the "Refused to Indi-
cate" in fact was .69 Moreover , Respondent did not
withdraw recognition from the Union until a week after the
es National Labor Relations Board Field Manual, Secs . 11310, 11318.4,
11324, 11340.1, 11340.2, 11340.10.
67 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, where the employees
were invited to attend the opening and counting of the poll.
88 As previously found , Respondent did not specifically promise to make
any payment for Snead 's services until after he had signed the tally showing
the result Respondent wanted . Nor is there any evidence that any of the
employees had any basis other than Respondent 's word for believing that
Snead was in fact a minister . Accordingly, while I fully credit Snead's sworn
testimony regarding the tally, someone who was dissatisfied with the results
might perhaps have questioned his reliability as an in camera counter.
69 As previously found, Mrs. Johnson asked employees for their names
only when she did not think she knew who they were . The Board 's field
manual (Section 11322 . 1) contains and underlines the following instruc-
tions : "The voter should give (his name]; it should not be given by an observer,
subject to assent by the voter." This requirement is intended to prevent
employees from voting more than once , ineligible persons from voting, and
eligible employees from being denied ballots . However , under the particular
facts of this case, I do not think that the employees may have believed that
such improprieties resulted from Mrs. Johnson' s failure to follow this Board
procedure , or that such improprieties did in fact result.
70 Cf . Brooks, supra, 348 U.S. at 99 ("Since an election is a solemn and
costly occasion , conducted under safeguards to voluntary choice, revocation
poll, although prior to the balloting Respondent an-
nounced , in effect, that Respondent would stop recogniz-
ing the Union if it lost.
So far as the likely effect of such circumstances on
employees is concerned , it is wholly immaterial that the
record herein persuades me that the tally was not
materially inaccurate . Respondent 's employees did not
have the benefit of the record evidence , which was
adduced more than 4 months after the ballots were cast
and counted . To permit Respondent to dishonor (in effect,
to revoke) the Union's Board certification on the basis of
an "election" whose announced results employees might
question for lack of the safeguards observed in the Board's
certification election tends to cheapen and degrade a
Board certification itself and , therefore , to undermine its
social utility ; for it is natural for affected parties to equate
the reliability of a Board certification election with the
reliability of an at least superficially similar procedure if
the Board has found it sufficient to reverse the election
results .70 Moreover, employers and nonincumbent unions
which are dissatisfied with particular Board certifications
and feel disadvantaged by quality Board procedures can be
expected to seek revocation of such certifications by using
the lowest quality informal procedures the Board's unfair
labor practice determinations will let them get away with.71
While such considerations have been held insufficient in
themselves to require honoring a certification until revoked
by the Board (supra, fn. 40), they are entitled to weight in
determining whether under all the circumstances such a
certification must be honored.
(4) Whether Respondent was precluded as a
matter of law from relying on the poll
The conclusion that Respondent did not reasonably have
a good-faith doubt, based on objective considerations, of
the Union's continued majority support means that at the
time Respondent conducted its own private poll, the Board
would not have entertained a petition filed by Respondent
seeking a Board-conducted election. United States Gypsum
Co., 157 NLRB 652, 654-656. While counsel for the
General Counsel does not so contend, I conclude that
apart from the deficiencies in the poll itself, this circum-
of authority should occur by a procedure no less solemn than that of the
initial designation"); L. L. Majure Transport Co., 95 NLRB 311, 312, enfd.
198 F.2d 735 (C.A. 5) ("When employees have expressed their considered
opinions by a method [a secret election) which leaves no room for doubt as
to their true desires, repudiation of their selection can be established only
through the medium of an equally probative technique "); Consolidated
Textile Co., Inc., 106 NLRB 580, 586 ("Until the validity of the presumed
majority status established by the certification is rescinded or superseded by
the same authority which first established it, the Board 's certification
remains valid, otherwise the challenger is being permitted to usurp the
Board's function"); N.LR.B. v. Botany Worsted Mills, 133 F.2d 876,
881-882 (C.A. 3), cert. denied 319 U.S. 751 ; United States Gypsum Co., 90
NLRB 964, 966; Regency Electronics, Inc. v. N.LRB., 84 LRRM 2891,
2893-2894 (C.A. 7). Employee Reba LaBruyere , an intelligent witness,
thought that Respondent 's poll was carried on under the same auspices as
the prior Board election ; and several other intelligent employee witnesses
confused the ballots used in Respondent's poll with the ballots used in the
prior Board elections.
11 Cf. NLRB. v. Trancoa Chemical Corp., 303 F.2d 456, 462 (C.A. 1)
("... some persons will make misstatements when they are allowed to. If
the Board tolerates low standards, that is where they will stop"); 13
Encyclopedia Americana , "Gresham's Law," p. 462 ( 1969).
JACKSON SPORTSWEAR CORP. 907
stance precludes Respondent from relying on the results of
the poll as a defense to its refusal to bargain .72 The fact
that Board policy would have precluded Respondent from
obtaining a Board election at this time renders this case
analogous to a case where the employer party to a contract
(or a settlement or recognition agreement ) which would
bar a representation petition filed by him has withdrawn
recognition from the union . The employer could not
defend his action on the ground that a poll conducted by
him showed that the union had lost its majority; "[o]ther-
wise we should have the anomalous result of an employer
being permitted unilaterally to redetermine his employees'
bargaining representative at a time when the Board would
refuse to make such redetermination because the time is
inappropriate for such action ." Hexton Furniture Co., 111
NLRB 342, 343-344.73 Moreover , as is cogently shown by
the facts of the instant case , to withhold a Board-
conducted election while at the same time permitting the
employer to withdraw recognition on the strength of his
own "election" would deprive the employees of the
safeguards and assurances supplied by Board election
procedures . While it is true that such a private "election,"
unlike a Board-conducted election, does not limit the
Union's statutory right to obtain a new certification, the
Union 's rejection in the private "election" and an interven-
ing period of nonrecognition coupled with a wage increase
would likely encourage the employees to vote against the
Union in a subsequent Board election .74 In any event, the
employees would at the very least have suffered the
irrevocable injury of a period during which they were
deprived of the benefits of collective representation.
3. Whether the poll violated Section 8(a)(1) of the
Act
As discussed in detail supra, Respondent scheduled its
poll without affording the employees or the Union any
advance notice whatever ; immediately before the election,
gave the employees an antiunion speech which at least
arguably included misrepresentations about whether the
employees were currently protected by a contract and
72 By letter dated October 9, 1973, after the close of the initial hearing, I
requested the parties to treat in their briefs the following questions, inter
alia:
A. Whether, at the time Respondent conducted the poll herein, the
Board would have entertained a representation petition filed by
Respondent . See United States Gypsum Co., 157 NLRB 652.
B. Assuming that the Board would not have entertained such a
petition , the relevance (if any) of that circumstance to the instant case.
While urging that question "A" should be answered in the affirmative,
Respondent 's able brief does not appear to treat question "B" at all. The
brief filed by counsel for the General Counsel merely urges that
Respondent's failure to file such a petition evinces awareness that it could
not show reasonable grounds therefor , and that such awareness motivated
the poll-contentions discussed infra part III, F,c,3.
73 See also, Sanson Hosiery Mills, 92 NLRB 1102 , 1103, enfd . 195 F.2d
350 (C .A. 5), cert . denied 344 U.S. 863; Marcus Trucking Co., Inc., 126
NLRB 1080, 1081, enfd . in pertinent part , 286 F .2d 583, 592-593 (C.A. 2);
Shamrock Dairy, Inc., 119 NLRB 998, 1002, 124 NLRB 494 , enfd . and affd.,
280 F .2d 665 (C.A.D.C., 1960), cert . denied 364 U.S. 892 1960 ; Duralite Co.,
Inc., 132 NLRB 425, 427, 440; Montgomery Ward & Co., 162 NLRB 294,
enfd . 399 F .2d 409 (C.A. 7, 1965); Poole Foundry and Machine Co., 95
NLRB 34, enfd . 192 F.2d 740 (C.A . 4), cert . denied 342 U.S . 954; W. B.
Johnston Grain Co., 154 NLRB 1115, enfd. 365 F .2d 582 (C.A. 10, 1966).
While U.S. Gypsum would not appear to affect petitions by employees or
rival unions , no election request proceeded from any such source here; and,
about the progress of pending negotiations ; arranged for
ballots to be distributed by a woman whom it described as
its personnel manager , in full view of admitted members of
management ; and to the employees ' knowledge prepared a
list of the names of employees who "refused" ballots and
who, therefore, might be held individually to blame if the
voters failed to produce the result which Respondent
wanted . Respondent 's conduct thereby tended to deprive
the employees of the opportunity of exercising a sober,
thoughtful, and informed choice ; to give Respondent's
antiunion arguments an unfair advantage through Respon-
dent's use of mass psychology unneutralized by the passage
of time for reflection and through management 's adminis-
tration of and visible presence during the poll; to put the
employees in fear should they decline to participate in the
poll; to establish an atmosphere in which a free election
could not be held; and thus to destroy the employees'
freedom of choice . Furthermore, Respondent conducted its
private "election" in the absence of a good-faith doubt of
majority and of objective considerations sufficient to
warrant a reasonable and good-faith doubt and , therefore,
at a time when , for reasons of industrial stability, the
Board would have dismissed an election petition filed by
Respondent . Moreover, the Union's failure to prevail in
Respondent's private "election" (conducted in such a
manner as to be confused with the Board 's certification
election in the minds of the employees), and Respondent's
withdrawal of recognition on that ground, hindered any
subsequent effort by the Union to prevail in a Board-
conducted election . Accordingly , Respondent's conduct in
connection with the poll , taken as a whole , tended to deter
employees from resort to the Board's processes ; to limit the
effectiveness of such Board processes if invoked; and to
create and perpetuate a labor relations situation controlled,
as a practical matter , by a private "election" which, if
conducted as a part of the Board's processes, would have
been rejected as constituting , inter alia, insufficiently
reliable evidence of the employees ' choice and unnecessari-
ly disruptive of industrial stability . In short , Respondent
has thereby limited its employees' right to the protection of
Board standards in effectuating their freedom of choice
in any event , neither is the contract -bar doctrine uniformly applicable to a
representation petition regardless of source . Absorbent Cotton Co., 137
NLRB 908; Zia Co., 108 NLRB 1134, 1135 , In. 1. Indeed, in Duralite, supra,
the Board applied Hexton, supra, and Marcus, supra where the contract
would not have barred a rival petition and the contracting union was
uncertified (132 NLRB at 427, 438 ). In support of that conclusion, the
Board quoted the following language from Brooks, supra, 348 U.S . at 103:
If an employer has doubts about his duty to continue bargaining, it
is his responsibility to petition the Board for relief , while continuing to
bargain in good faith at least until the Board has given some indication
that his claim has merit . . . . Although the Board may , if the facts
warrant , revoke the certification or agree not to pursue a charge of
unfair labor practice , these are matters for the Board ; they do not
justify employer self-help or judicial intervention.
74 Franks Brothers Co. v. N.L.R.B., 321 U.S. 702 , 704; N. L.R.B. v. Savair
Mfg. Co., 94 S. Ct . 495, 499 (a cardsigner's "outward manifestation of
support must often serve as a useful campaign tool in the Union's hands to
convince other employees to vote for the Union , if only because many
employees respect their co-workers ' views on the Union issue"); N.L.R.B. v.
Pennsylvania Greyhound Lines, Inc., 303 U .S. 261 , 267; International Ladies'
Garment Workers ' Union v. N.L.R . B. [Bernhard-Altmann], 366 U.S . 731, 736
(1961). The results of Respondent 's poll would likely be particularly
impressive to the employees here , in view of the evidence that they confused
the poll with the Board elections which had preceded the Union's
certification.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and jeopardized the industrial stability which the statute
seeks to promote. I conclude that Respondent thereby
interfered with, restrained, and coerced its employees in
the exercise of their Section 7 rights, in violation of Section
8(a)(1) of the Act.75
I reach this result wholly apart from Respondent's
motivation for this conduct. Proof of antiunion motivation
in conduct which interferes with protected employee rights
is necessary only if the employer has come forward with
evidence of legitimate and substantial business justifica-
tions for such conduct; 76 and I can perceive no such
justifications (nor has Respondent suggested any) for
bypassing Board election processes and seeking to substi-
tute therefor the results of an "election" which significantly
failed to meet Board election standards. In any event, I
infer that Respondent conducted its poll with a purpose of
procuring the Union's defeat. Respondent decided to
conduct the poll even though it did not entertain a good-
faith doubt of the incumbent certified Union's majority.
Moreover, by using its own private "election" instead of
resorting to Board processes, Respondent avoided the
precondition that it establish good - faith doubt and
sufficient objective bases therefor, and also avoided
significant Board-imposed safeguards to freedom of
choice. Further, the deficiencies in Respondent's poll
tended, almost without exception, to improve the prospects
of the Union loss which Respondent wished to bring
about; while not a single deficiency tended to improve the
Union's chances. Particularly because the poll was admit-
tedly decided on by, inter alia, Respondent's counsel and
its industrial relations manager, I cannot believe that either
Respondent's decision to use its own "election" procedures
or their built-in bias was merely accidental.
Further, I agree with counsel for the General Counsel
that Struksnes Construction Co., 165 NLRB 1062, calls for a
finding that Respondent's conduct of the poll violated
Section 8(a)(1) of the Act. Struksnes stated that "any
attempt by an employer to ascertain employee views and
sympathies regarding unionism generally tends to cause
fear of reprisal in the mind of the employee if he replies in
favor of unionism and, therefore, tends to impinge on his
Section 7 rights." The Board went on to say:
other and because it made and maintained a record of the
names of employees who "refused" ballots and of
employees who failed to vote for other reasons; and, for
the reasons previously stated, failed to meet the underlined
portions of criterion (5) as well. Further, I conclude that
Respondent failed fully to meet criterion (1) in that it had
no good-faith doubt (nor was it presented with objective
considerations which reasonably warranted such a doubt)
of the Union's majority and conducted the poll in an effort
to procure a Union loss.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act on
April 26, 1973, by conducting a poll among its employees
about whether they wanted the Union to continue to
represent them.
4. At all relevant times, the Union has been and is the
duly certified exclusive bargaining representative within
the meaning of Section 9(a) and (c)(1) of the Act, in the
following appropriate unit:
All production and maintenance employees at the
Respondent's North Augusta, South Carolina, plant,
excluding all office employees, professional employees,
guards and supervisors as defined in the Act.
5. Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing, on and after May 7, 1973, to
recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the aforesaid
unit.
6. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not, in violation of Section 8(a)(5)
and (1) of the Act, fail to bargain with the Union in good
faith between February 6, 1973, and May 3, 1973.
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards are
observed: (1) the purpose of the poll is to determine the
truth of a union 's claim of majority, (2) this purpose is
communicated to the employees, (3) assurances against
reprisal are given, (4) the employees are polled by secret
ballot, and (5) the employer has not engaged in unfair
labor practices or otherwise created a coercive atmos-
phere. [Emphasis supplied.]
Respondent here failed to meet criterion (4) because it
failed to protect some voters' privacy as between each
75 Cf. Jif-E-Mart, 205 NLRB No. 116.
76 N.L. R.B. v. Fleetwood Trailer Co ., Inc., 389 U.S. 375 (1967); N.L.R.B.
v. Jemco, Inc., 465 F.2d 1148 , 1150-52 (C.A. 6), cert . denied 409 U.S. 1109;
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent cease
and desist from such conduct, and like or related conduct.
By way of affirmative relief, which I find is also
appropriate here, I shall recommend that Respondent
bargain with the Union, on request, and post appropriate
notices.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I recommend the following Order:
Cavalier Division of Seeburg Corp., 192 NLRB 290, 290, enfd . 476 F.2d 868,
876-878 (C.A.D.C.).
JACKSON SPORTSWEAR CORP. 909
ORDER77
Respondent Jackson Sportswear Corporation, its offi-
cers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Polling or otherwise interrogating its employees about
their union views in a manner constituting interference,
restraint , and coercion.
(b) Refusing to recognize or bargain collectively with
United Wholesale and Production Workers Union, Local
586, affiliated with the Retail , Wholesale and Department
Store Union , AFL-CIO, as the exclusive bargaining
representative of all production and maintenance employ-
ees at the Respondent 's North Augusta , South Carolina,
plant , excluding all office employees , professional employ-
ees, guards , and supervisors as defined in the National
Labor Relations Act.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
77 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 pruposes.
the above-named Union as the exclusive bargaining
representative of the employees in the above-described
unit, and embody in a signed agreement any understanding
reached.
(b) Post at its North Augusta, South Carolina, plant
copies of the attached notice marked "Appendix." 78
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by an
authorized representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained for 60 days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT Is ALSO ORDERED that the complaint herein be
dismissed insofar as it alleges that Respondent violated
Section 8(a)(5) of the Act prior to May 3, 1973.
78 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."