Jonbil

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 652 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
Jonbil, Inc. and Union of Needletrades, Industrial and
Textile Employees, AFL-CIO, CLC. Cases 11–
CA–16707, 11–CA–16899, and 11–CA–16760, and
11–RC–6102
September 29, 2000
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On January 21, 1997, Administrative Law Judge Philip
P. McLeod issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Union filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions2 only to the
extent consistent with this decision and to adopt the rec-
ommended Order3 as modified.
The judge concluded that, regardless of the results of the
election, the Respondent’s unfair labor practices warranted
issuance of a remedial bargaining order based on proof
that the Union had obtained valid authorization cards from
a majority of unit employees. See NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). We would normally at least
consider issuing a bargaining order in these circumstances.
However, given the long and unjustified delay of the case
here at the Board, we recognize that such an order would
likely be unenforceable. See generally Flamingo Hilton-
Laughlin v. NLRB, 148 F.3d 1166, 1171 (D.C. Cir. 1996),
and Charlotte Amphitheater Corp. v. NLRB, 83 F.3d 1074,
1078 (D.C. Cir. 1996). Accordingly, rather than engender
further litigation and delay over the propriety of a bargain-
ing order, we believe that employee rights would be better
served by proceeding directly to a second election.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge found that on or about September 14, Supervisors John
Reese and Calvin Mosely threatened employees including Raymond
Toone with loss of jobs if employees selected the Union to represent
them. We correct the judge’s inadvertent failure to include Calvin
Mosely’s unlawful conduct in his Conclusions of Law.
3 We shall also modify the judge’s recommended Order to include
provisions that are in accord with our decision in Indian Hills Health
Care Center, 321 NLRB 144 (1996), as modified in Excel Container,
Inc., 325 NLRB 17 (1997).
Although we will not impose a Gissel remedy in lieu of
directing a second election in this case, we do find that an
additional remedy is warranted in order to dissipate as
much as possible any lingering effects of the Respondent’s
unfair labor practices, and to ensure that a fair election can
be held. Specifically, we shall order the Respondent to
supply to the Union, on a request made within 1 year of
the date of this Decision and Order, the names and ad-
dresses of all current unit employees. The Board’s delay
in acting in this case, although unfortunate, was no more
the fault of the Union or the employees who were denied a
fair opportunity to choose whether they desire union repre-
sentation than it was of the Respondent. Our Order will
afford the Union “an opportunity to participate in restora-
tion and reassurance of employee rights by engaging in
further organizational efforts, if it so chooses, in an atmos-
phere free of further restraint and coercion.” Cooper Hand
Tools, 328 NLRB 145 (1999), citing United Dairy Farm-
ers Cooperative Assn., 242 NLRB 1026, 1029 (1979),
enfd. in relevant part 633 F.2d 1954 (3d Cir. 1980).4
AMENDED CONCLUSION OF LAW
Substitute the following for the judge’s Conclusion of
Law 13
“13. On or about September 14, Respondent, acting
through Supervisors John Reese and Calvin Mosely,
4 Member Liebman believes that additional remedial measures are
necessary to dissipate, as much as possible, the lingering atmosphere of
fear created by the Respondent’s pervasive unlawful conduct and to
ensure that employees will be able to exercise a free choice in a second
election. Specifically, she would also order the Respondent (1) during
the time the notice is posted, to convene the unit employees during
working time and permit a Board agent, in the presence of a responsible
management official of the Respondent, to read the notice to the em-
ployees, and (2) to grant the Union and its representatives reasonable
access to its bulletin boards and all places where notices to employees
are customarily posted. From the beginning of the campaign, the Re-
spondent kept up a virtual drumbeat of threats of plant closure and loss
of jobs, including a threat made by the Respondent’s president on the
eve of the election. Member Liebman believes that the reading of the
notice, as well as the access remedy, are necessary to provide employ-
ees with reassurance that they can learn the benefits of representation
by the Union free from such a campaign of pervasive and serious
threats. See Aqua Cool, 332 NLRB No. 7, slip op. at 3, fn. 8 (2000);
(Member Liebman, dissenting in part) Blockbuster Pavilion, 331 NLRB
No. 165 (2000); Audubon Regional Medical Center, 331 NLRB No. 42,
slip op. at 5–6 (2000); Regal Recycling, Inc., 329 NLRB 355, 357 fn.
15 (1999) (Member Liebman, dissenting in part); Wallace International
Puerto Rico, 328 NLRB 29, 30 (1999).
In declining to grant a bargaining order, Member Hurtgen also relies
on the fact that Vice President Moore and Supervisors C. Mosely and
McCluster, who were responsible for a number of the unfair labor
practices, are no longer employed by the Respondent, and that there has
been a 44 percent turnover of employees (154 of 352 employees) be-
tween the time of the events at issue here, more than 4 years ago, and
the end of the hearing in this case on July 11, 1996. Although such
evidence may not be dispositive, it is clearly a relevant factor in deter-
mining whether a bargaining order should issue.
332 NLRB No. 63
JONBIL, INC. 653
threatened employees with loss of jobs if they selected the
Union to represent them, and Respondent thereby violated
Section 8(a)(1) of the Act.”
ORDER
The National Labor Relations Board orders that the Re-
spondent, Jonbil, Inc., Chase City, Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening plant closure if employees choose to ex-
ercise their rights protected by the Act.
(b) Interrogating employees, soliciting grievances from
employees, and expressly or impliedly promising to rem-
edy those grievances in order to discourage employees
from selecting the Union to represent them.
(c) Threatening employees with loss of benefits if they
select the Union to represent them.
(d) Threatening employees with the inevitability of
strikes and the futility of employees selecting the Union to
represent them.
(e) Threatening employees with loss of jobs if they se-
lect the Union to represent them.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Supply the Union, on its request made within 1 year
of the date of this Decision and Order, with the full names
and addresses of its current unit employees.
(b) Within 14 days after service by the Region, post at
its Chase City, Virginia facility copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 11, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by
the Respondent at any time since July 17, 1995.

5 If this order is enforced by a judgment of the 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.”
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
[Direction of Second Election omitted from publica-
tion.]

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten plant closure if employees
choose to exercise their rights protected by the Act.
WE WILL NOT interrogate employees, solicit griev-
ances from employees, and expressly or impliedly promise
to remedy those grievances in order to discourage employ-
ees from selecting the Union to represent them.
WE WILL NOT threaten employees with loss of bene-
fits if they select the Union to represent them.
WE WILL NOT threaten employees with the inevitabil-
ity of strikes and the futility of employees selecting the
Union to represent them.
WE WILL NOT threaten employees with loss of jobs if
they select the Union to represent them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL supply the Union, on its request made within
1 year of the date of the Decision and Order, with the full
names and addresses of our current unit employees.
JONBIL, INC.
Michael W. Jeannette, Esq., for the General Counsel.
Townsell G. Marshall Jr., Esq. and Robin E. Shea, Esq. (Con-
stangy, Brooks & Smith), for the Respondent.
Michael Okun, Esq. and John Harkavy, Esq. (Patterson,
Harkavy, & Lawrence), for the Charging Party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Boydton, Virginia, on May 4–6 and July 9–11, 1996. In
this proceeding, counsel for the General Counsel and the Charg-
ing Party seek a bargaining order remedy for alleged violations of
Section 8(a)(1) and (3) of the National Labor Relations Act dur-
ing the Charging Party Union’s organizing campaign at Respon-
dent’s Chase City, Virginia facility.
The Union filed a petition for an election on July 24, 1995, in
Case 11–RC–6102, seeking to represent Respondent’s production
and maintenance employees. An election was conducted on
September 15, with 134 voting for union representation and 133
against. Challenged ballots were determinative of the results.
Following the election, on September 21, the Union filed timely
objections to conduct affecting the results of the election. On
November 21, a report on objections and challenged ballots,
order directing hearing, and order consolidating cases issued
wherein six challenges were ruled on. The remaining 12 chal-
lenges were set for hearing along with the objections and alleged
unfair labor practices.
During the trial of the cases, the parties stipulated to or with-
drew all of the remaining challenges except one. The remaining
challenge of Sebert Kyle is no longer determinative of the results
of the election, and in view of the result reached need not be
addressed here. Pursuant to the agreement of the parties, there
were 10 additional eligible voters. Those 10 ballots were counted
on September 6, 1996, and all were against union representation,
with the final tally therefore being 134 for and 143 against union
representation.
Respondent admits in its answer to the consolidated complaint,
and based on the record I find that Jonbil, Inc. (Respondent) is,
and has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act,
and that Union of Needletrades, Industrial and Textile Employ-
ees, AFL–CIO, CLC is a labor organization within the meaning
of Section 2(5) of the Act. Respondent also admits the status of
certain individuals as supervisors and agents of Respondent
within the meaning of Section 2(11) of the Act. Respondent
denies having engaged in any conduct which would constitute an
unfair labor practice within the meaning of the Act.
At the trial, all parties were represented and afforded full op-
portunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. On or about September 15, 1996,
counsel for the General Counsel, the Charging Party Union, and
Respondent filed timely briefs which have been duly considered.
On the entire record in this case, and from my observation of
the witnesses, I make the following
FINDINGS OF FACT
A. Background
Respondent manufactures blue jeans and denim pants at its fa-
cility in Chase City, Virginia. This facility consists of two build-
ings, commonly referred to as the “bottom” plant wherein the
cutting, stitching, and sewing processes are performed and the
“top” plant wherein the administrative, shipping, receiving, and
washing processes are performed.
Until his death in December 1992, W. J. Bank owned all of the
shares of Jonbil. In October 1993, Herbert Winkler, now presi-
dent of Jonbil, and Thomas Smith, now chief financial officer,
purchased the company from Bank’s estate. At that time, and
until the summer of 1995, Jonbil had facilities in Chase City,
Virginia; Danville, Virginia; and Henderson, North Carolina.
During the first year of operation under Winkler and Smith,
the Company had $25 million in sales, but a net loss before taxes
of $800,000. During the Christmas of 1994, garments that Jonbil
had manufactured for J.C. Penney Co. did not sell well. Penneys’
canceled its contracts with Jonbil, leaving Respondent with ap-
proximately $1 million in inventory.
1995 was worse yet. Work slowed, and employees were tem-
porarily drawing unemployment compensation. The employees
at the Danville and Henderson facilities were working 1 week on
and 1 week off. During 1995, Respondent was forced to accept
orders for cutting work to keep the employees working, even
though it was not nearly as profitable as manufacturing an entire
garment. Respondent entered an indefinite contract with Calvin
Klein for the manufacture of designer jeans, but Klein canceled
the contract at the end of 1995. For 1995, Respondent suffered a
loss before taxes of $1.27 million. As of the time of the hearing,
Respondent was suffering a $300,000 loss for 1996.
In the midst of this economic uncertainty, in mid-July 1995,
the Union began its efforts to organize the employees of Jonbil at
its Chase City facility. In August 1995, Respondent closed the
Danville, Virginia facility. In January 1996, it closed the Hen-
derson, North Carolina facility. Only the Chase City facility
remains open.
B. July 17: Thomas Smith’s Speech to Employees
On July 14, Thomas Smith, Respondent’s executive vice
president and chief financial officer, first learned of the Union’s
efforts to organize Respondent’s employees. On July 17, he met
with and addressed employees about the Union’s campaign.
Employee Diana Hawley testified that on July 18, she and
about 25 to 30 other employees attended a meeting with Smith,
Human Resources Director Jack Albertson, and Supervisor Bar-
bara McCluster, in which Smith stated he would do everything in
his power to keep the Union out. According to Hawley, Smith
told employees “he would not have to keep the plant open if the
Union was to get in.”
Smith testified that he began to formulate remarks for employ-
ees right after he learned of the union campaign. Smith testified
credibly that he did not deviate from a text which he prepared for
these meetings with employees and which was introduced by
Respondent. The scripted speech contains no such statement by
Smith. The script shows that during the meetings with employ-
ees, Smith spoke about the economic condition of the Respon-
dent, including its significant losses since he and Winkler had
purchased the company.
Smith admits he specifically read from the text of his speech
the following: “WE CAN’T AFFORD THE EXPENSE AND
DISTRACTIONS OF A UNION CAMPAIGN. THE EXTRA
COST COULD PUSH US OVER THE EDGE. . . . WE DON’T
NEED A UNION TO COME BETWEEN US AT THIS CRITICAL
TIME! [Emphasis in original.]” Smith admitted that by being in
all capital letters, it meant he said this not just once, but he reiter-
JONBIL, INC. 655
ated to employees. Smith’s speech also includes the following:
“AND LET MAKE IT CLEAR THAT WE WILL DO
EVERYTHING LEGAL AND PROPER TO HELP YOU
FIGHT THIS UNION ATTEMPT WHICH COULD HURT
THIS COMPANY AT A VERY CRITICAL TIME IN WHICH
WE ARE FIGHTING TO SURVIVE AND CONTINUE TO
PROVIDE AMERICAN JOBS.”
Counsel for the General Counsel admits Smith’s statements to
employees regarding the economic situation of the Company,
while “questionable as to their timing,” are lawful. Counsel for
the General Counsel asserts, however, that these statements by
Smith quoted above constitute threats of plant closure should the
employees select the Union to represent them, and thereby vio-
late Section 8(a)(1) of the Act. AutoZone, 315 NLRB 115, 127–
128 (1994). See Be-Lo Stores, 318 NLRB 1 (1995); Fieldcrest
Cannon, Inc., 318 NLRB 470 (1995).
As Respondent argues, the Board and the courts have held that
statements about plant closing are not unlawful when they are
reasonable predictions based on economic factors beyond the
control of the employer. See Action Mining, Inc./Sanner Ener-
gies, Inc., 318 NLRB 652 (1995), which has certain similarities
to the instant case in that it involves an employer in a depressed
industry who made statements to employees indicating that un-
ionization could have dire consequences for the company. The
Board found that because of the financial context of the state-
ments and the employer’s willingness to share detailed informa-
tion about the company’s condition, the employer’s statements
were lawful predictions rather than unlawful threats. Likewise,
the Board found it was not unlawful for the coowner to tell em-
ployees the company might lose customers even without a strike
if the union came in where such statements are predicated on
factors beyond Respondent’s control.
Respondent argues that the reasoning of the Board in Action
Mining should be applied in the instant case. Like the employer
in Action Mining, Jonbil is in an industry that has fallen on diffi-
cult times. The decline of the U.S. apparel industry as it faces
off-shore foreign competition is well known. Respondent argues
that where, as here, the employer’s economic condition is genu-
inely precarious, such statements are lawful.
I agree with Respondent that Action Mining demonstrates the
Board recognizes that comments by an employer during a union
campaign about the possibility of the business closing must be
viewed in context in determining whether the statements are
illegal. The Board and the courts have repeatedly held, however,
that in order to be lawful, such comments must be reasonable
predictions and must be based on circumstances beyond the em-
ployer’s control.
Applying this standard to the instant case, I find that Respon-
dent stepped over the line by linking the possibility of plant clo-
sure with circumstances within Respondent’s own control. I
agree with counsel for the General Counsel that by telling em-
ployees the cost of fighting the Union’s campaign could itself
push the Respondent “over the edge,” Smith conveyed to em-
ployees that their mere exercise of Section 7 rights might itself
cause Respondent to close the plant. Smith then emphasized his
point by telling employees that Respondent would “fight this
Union attempt which could hurt this Company at a very critical
time.” Smith’s statements did not reflect reasonable predictions
of the economic consequences of unionization beyond his con-
trol. With regard to the union campaign, Respondent had several
choices—all of which were within its own control.
Respondent could choose to recognize and bargain with the
Union if it demonstrated majority status, thereby saving money
otherwise spent on an antiunion campaign. Or Respondent could
choose to attempt negotiate a contract with the Union that main-
tains the status quo pending Respondent making a profit. Instead,
Smith made it clear that Respondent chose to fight the Union,
and that choice alone could result in Respondent closing the
plant. Therefore, by continuing to exercise Section 7 rights, em-
ployees were running the risk of losing their jobs. I find that
Smith’s remarks, phrased as they were, threatened plant closure if
employees chose to exercise their rights protected by the Act, and
Respondent thereby violated Section 8(a)(1) of the Act.
C. July 20: Jack Albertson’s Speech to Employees
Diana Hawley testified that she attended a meeting of employ-
ees on July 20 with Human Resources Director Jack Albertson
and Supervisor Barbara McCluster. Hawley testified that Albert-
son spoke to employees about how the Company was in the “red”
and that “if we [the employees need] to talk that he had an exten-
sion 233 and that we could talk to him at any time with this ex-
tension.” According to Hawley, this is the first time she learned
of such an “open-door” policy of Albertson.
Counsel for the General Counsel asserts that Albertson’s
comments to Hawley about calling or meeting with him if em-
ployees have questions in essence created a heretofore unknown
“open door” policy, which is a benefit for employees in violation
of Section 8(a)(1) of the Act.
Regarding the alleged “open-door policy,” Albertson testified
credibly he told employees to come by his office, or call him, if
there were any questions and he would get them an answer. By
either Hawley’s version or Albertson’s, the evidence is woefully
insufficient to establish that Jonbil implemented a new “open-
door policy” during the campaign. Obviously, all Albertson was
offering to do was be available to employees if they had ques-
tions about the Union, which was completely within the Com-
pany’s 8(c) rights.
Hawley testified Albertson stated during this same speech that
“Smith would not have to keep the plant open if the Union” was
selected by the employees. Albertson denied making this state-
ment. I credit Hawley insofar as she testified Albertson stated
Respondent would not “have” to keep the plant open. Counsel
for the General Counsel argues that Albertson’s statement “vio-
lates the very heart of Section 8(a)(1) of the Act.” I disagree.
Albertson’s remark about the plant remaining open must be
placed in its proper context in order to be properly judged. Re-
spondent had lost considerable amounts of money since Winkler
and Smith purchased the business. The Union, however, was
campaigning with claims that Respondent had made a consider-
able profit and could afford a wage increase for employees. By
Hawley’s own version, Albertson did not threaten, or even pre-
dict, that employees would lose their jobs if the Union won the
election. What Albertson did say was simply that Smith would
not have to keep the plant open if the Union won the election, an
accurate statement of the law. In the Union’s campaign, as is
more fully discussed below, employees had been lead to believe
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
that merely electing the Union meant that Respondent was re-
quired to give employees some improvements in wages, hours, or
working conditions. In the context of this case, therefore, Albert-
son’s statement properly informs employees that they should not
mistakenly equate selection of the Union with perpetual job secu-
rity.
D. July 20: Restriction on Visitation
Corine Hayes, a first-shift employee at Jonbil, testified that on
July 20, 1995, she came to the plant at 7:30 p.m., during second
shift, to visit her nephew, who was having his meal break at a
picnic table outdoors. Hayes’ testimony about this incident is so
confused that it is difficult to determine what actually happened.
In her initial description, Hayes testified that while she was at the
picnic table with her nephew, Hayes showed the others various
union materials. A security guard whom she did not know then
came to the table and told her that visitors were not allowed.
Hayes testified that 2 weeks earlier, presumably before the union
campaign, she had been allowed to visit her son, who also
worked second shift. The same security guard was involved both
times. Hayes asserted that in all, she had come back to the plant
to visit other employees approximately “a dozen” times, and July
20 was the only time she was ever asked to leave.
During further testimony, however, Hayes corrected herself
and stated that on July 20, she never got out of the car she was
driving when the guard instructed her to leave. On recross ex-
amination, Hayes acknowledged that she sat in a parked car and
her nephew came over to her. Obviously, therefore, she did not
show union materials to other employees at the picnic table.
Hayes also stated that she had informed counsel for the General
Counsel that her affidavit given to the Board during the investiga-
tion of this case was incorrect in various details.
Later in the trial, counsel for the General Counsel stated on the
record that he had indeed been informed by Hayes of the inaccu-
racies in her affidavit, and that he inadvertently overlooked this
in asking the question about being at the table when she spoke to
her nephew. Counsel for the General Counsel stated that he
wanted to bring his error to the attention of the court having read
the transcripts.
Counsel for the General Counsel maintains that Hayes’ unre-
butted testimony should be credited and a finding made that Re-
spondent violated Section 8(a)(1) of the Act when it restricted its
off-duty employees from visiting its premises during working
employees’ lunchbreaks in order to discourage its employees
from participating in the union campaign.
I cannot agree with counsel that even Hayes’ unrebutted testi-
mony supports finding a violation. Hayes “unrebutted” testi-
mony offers two such varied versions that it is difficult to deter-
mine what really happened. Her willingness to offer the first
version under oath in response to counsel for the General Coun-
sel’s questions leaves me with some doubt about the reliability of
her testimony. Moreover, on cross-examination, Hayes admitted
that she had not told the security guard why she was at the plant
on July 20. Further, the guard did not say anything to indicate
that he knew why Hayes was there. Hayes also admitted that she
visited the same nephew approximately 2 weeks after July 20—
while the campaign was still ongoing—and that no one asked her
to leave on this occasion. Finally, on questioning by me, she
testified that on July 20, she did not know whether the security
guard had any idea that she was engaged in union activity. Based
on the record herein, I cannot agree with the position advanced
by counsel for the General Counsel.
There is absolutely no evidence that on July 20, the security
guard had even the slightest idea Hayes was distributing union
materials, or that he asked her to leave in order to disrupt that
activity. What is clear is that Respondent did not institute some
new rule on learning of union activity among employees, for as
Hayes herself testified, she visited the same nephew approxi-
mately 2 weeks after July 20—while the campaign was still on-
going and no one asked her to leave on this occasion. Hayes’
own testimony is less than clear about what happened on July 20,
and in the end we are left with nothing but speculation about
what might have motivated the guard to ask Hayes to leave on
that day. I find that counsel for the General Counsel has failed to
carry its burden of proof, and I shall therefore dismiss that allega-
tion from the complaint.
E. July 27: Albertson’s Meeting with Employees
Catherine Martin, who had worked for Respondent approxi-
mately 4 years and quit just a few weeks before she testified,
stated that on or about July 27, she attended a meeting with about
30 other employees. Human Resources Director Albertson,
Moore, and Supervisor McCluster were all present. Martin testi-
fied that Albertson spoke to employees without the benefit of any
papers in front of him. According to Martin, Albertson told em-
ployees that once the Union came into the plant, any employee
who did not make 5 percent over production would be termi-
nated. Martin also testified Albertson told employees that if the
Union did get in, and if the “Union said strike then we would
have to strike.” According to Martin, she informed Albertson
that if the Union said they had to strike, employees did not have
to strike, but Albertson replied that they did.
Pearl Andrews testified that she too attended this meeting.
According to Andrews, she heard Albertson state that the Union
would have employees fired who are unable to make 5 percent
over production.
Albertson admits making statements to employees in this
meeting somewhat similar to, yet substantively different from,
the comments attributed to him by Martin and Andrews. Albert-
son testified credibly that he informed employees about a union
contract at another employer where all employees who did not
make 100-percent production could be terminated, and denied
telling employees that they could he discharged if they did not
make 5 percent above production requirements. Albertson fur-
ther testified credibly that in response to an employee question
about employees going out on strike, Albertson replied that em-
ployees would be expected to honor the strike. Albertson credi-
bly denied telling employees that they would have to honor a
strike called by the Union.
Counsel for the General Counsel asserts that Albertson’s
comment to employees violates Section 8(a)(1) of the Act “for it
coerces employees into believing that the Union’s winning of the
election could cause them to be later terminated from their jobs.”
Counsel for the General Counsel goes on to argue that even as-
suming Albertson’s comments about another company and union
are factually correct, the statements by Albertson nevertheless
JONBIL, INC. 657
violate the Act because they “give Respondent’s employees a
reasonable impression that such a provision would automatically
be included in their contract and thus not making a certain level
of production, whatever that level decided upon, would cause
employees to be terminated.” I reject each of these arguments.
Albertson’s statements regarding contract provisions at an-
other employer were in fact nothing more than an accurate de-
scription of the give-and-take during bargaining, the accuracy of
which counsel for the General Counsel does not dispute. Even
assuming Albertson implied that such terms could be or even
would be included in a contract at Jonbil, it has long been recog-
nized that an employer is free to point out to employees that the
bargaining process can and sometimes does result in employees
having more strict work rules than before. See, e.g., Custom
Window Extrusions, Inc., 314 NLRB 850 (1994).
F. July 31: Addition of Supervisor
Employees Pearl Andrews, Gwen Canada, and Catherine Mar-
tin testified that on July 31, Smith announced over the intercom
at the plant that a unit of employees would henceforth consist of
20 to 25 employees, which would result in there being more su-
pervisors per employees. As a result in this reduction in the
number of employees per supervisor, Rosa Mosely became An-
drews’, Canada’s, and Martin’s supervisor. Canada testified that
having more supervisors per employee could allow employees
more access to supervisors and therefore quicker response in
resolving production problems, thereby increasing production
and allowing employees to make more money. Martin, however,
testified that it made no difference to her work whatsoever.
Counsel for the General Counsel contends Respondent failed
to explain why it chose to implement “this benefit” to employees
about 2 weeks after the union campaign began. According to
counsel for the General Counsel, the addition of Mosely as su-
pervisor, and the resulting reduction in the number of employees
per supervisor, constituted an unlawful benefit to employees in
violation of Section 8(a)(1) of the Act. I cannot agree.
There is no dispute that on July 31, Respondent announced
that it he would be adding supervisors to help employees with
their productivity, something it referred to as “the JOBS Pro-
gram.” Respondent’s unrebutted and altogether credible evi-
dence was that in January 1994, long before any union campaign,
Winkler and Smith hired consultants to find ways to improve
employee productivity. In early 1995, still 3-1/2 months before
any campaign began, they hired a new group of consultants for
the same purpose. This second group of consultants made a se-
ries of recommendations that were submitted to Winkler and
Smith at the end of June 1995, approximately 2 weeks before the
campaign began. The Fourth of July shutdown followed, and
after the shutdown, it took the Company approximately 2-1/2
weeks to implement the recommendations. The record is utterly
convincing that although the JOBS program was announced to
employees after the campaign began, this announcement was
simply the culmination of a process that began long before the
campaign. I shall therefore dismiss this allegation from the com-
plaint.
G. August 8: Supervisor Barbara Stenbridge
Angela Ward testified without contradiction that around Au-
gust 8, she had a conversation with her supervisor, Barbara Sten-
bridge, in which Stenbridge asked Ward why she was supporting
the Union. Ward testified Stenbridge then asked what kind of
problems Ward had, and “if [there was] anybody else she could
talk to.” Stenbridge then told Ward “to make a list of the prob-
lems [she] had, and [Stenbridge] would go to Tom Smith with the
list.” Finally, Stenbridge told Ward that she “was scared for her
job.”
Ward’s unrebutted testimony establishes a clear violation of
Section 8(a)(1) of the Act, including both unlawful interrogation
and solicitation of grievances with an implied promise to remedy
those grievances. Performance Friction Corp., 319 NLRB 859
(1995). Even though Ward was a known supporter of the Union,
this does not preclude her from being unlawfully interrogated.
The proper test is one of the totality of the circumstances, which
in this case establishes that the interrogation occurred in the con-
text of Stenbridge also soliciting grievances. In this context,
Ward’s status as a known union adherent is immaterial. See
Rossmore House, 269 NLRB 1176, 1177 (1984). I find that
Respondent interrogated Ward, solicited grievances from Ward,
and expressly or impliedly promised to remedy those grievances
in violation of Section 8(a)(1) of the Act.
H. August 18: Smith Meeting with Employees
On August 18, employees were paid in part by check and the
other part by cash. Respondent admits it utilized this payment
approach in order to demonstrate to employees the amount of
money they would be paying for dues if they joined the Union.
Employees were required to sign a receipt to get the cash portion.
When employees saw what Respondent had done, some became
upset, and a commotion developed on the work floor. Smith was
then called to the work floor. Conversation between Smith and
employees began on the work floor, and was then moved to the
cafeteria.
Current employees Victoria Brooks, April Mason, Dequta
McBee, and Pearl Andrews, and former employees Margaret
Johnson and Rufus Marable all testified about the events that
occurred after Smith arrived on the work floor. Brooks stated
that as Smith talked, employees became very loud. According to
Brooks, she asked Smith why employees could not get more
money, and Smith replied, “with or without a Union [the em-
ployees] were not getting [any] more money.”
April Mason asserted that during the meeting, Smith told em-
ployees that “before he let the Union come in, he would close the
factory.” At the same time, Mason asserted Smith stated that
Respondent would bargain with the Union “from scratch.”
Margaret Johnson testified that after she had refused to sign
the paper to get her money in cash, she asked Smith in the meet-
ing what employees were going to receive if they work there 30
years. According to her, Smith replied, “Nothing.” Johnson
recalled a conversation between employees and Smith during this
meeting wherein Smith said that the “Union was no good” and
“if the Union came into Jonbil, we would have to start from
scratch.” According to Johnson, Smith went on to say, “We
would have nothing and he said that if the Union came in he
wouldn’t be able to afford their prices and he would close the
doors.”
Dequta McBee testified that employees were upset and crying.
According to McBee, Smith responded to a question about the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
Union saying, we are “not promising you anything, because we
have nothing to give you.” Then another question was asked of
Smith, if “the Union comes in, will you sit down and bargain
with them?” According to McBee, Smith replied, “No, we don’t
have the—if the Union comes in we do not have to sit down and
bargain with them. We do not have to give you all anything. All
we have to do is bargain in good faith.”
Rufus Marable testified that Smith informed employees that
“we wouldn’t be able to have a Union in [Jonbil]” and “If we do,
it would be just a matter of time until [the plant] would close.”
Pearl Andrews testified that she was sitting at her machine
when the conversation began between Smith and employees
about their paychecks. Andrews testified that as the conversation
was still ongoing on the plant floor, her supervisor, Barbara
McCluster, came over and said, “I can tell you this much. If the
Union comes in here, Jonbil will close in two to three years.”
Counsel for the General Counsel acknowledges Smith’s al-
leged comments to employees vary from witness to witness.
Counsel for the General Counsel notes, however, these are state-
ments from employees who testified against their interest and
contain the central theme of futility in selecting the Union as the
employees’ representative in violation of Section 8(a)(1) of the
Act. Counsel for the General Counsel argues that the comments
by Smith regarding how the Respondent was not going to pay
employees more money with or without a union, and how it was
going to bargain from scratch or start from scratch, all indicate to
employees that it is futile to select the Union as their collective-
bargaining representative. In addition, he argues Smith’s com-
ments that the plant would close if the employees selected the
Union, attributed to him by Mason, Johnson, and Marable, con-
stitute a threat of plant closure.
The record establishes that when employees found out they
were being paid partly by check and were being required to sign
a receipt to get the remainder of their salary in cash, many be-
came upset. Victoria Brooks testified that employees became
very loud. Dequta McBee testified that employees were upset
and crying. It is not surprising, therefore, that different witnesses
recall Smith’s alleged statements differently. Particularly where
employees are upset, loud and crying, few recall what was actu-
ally said. Some recall what they think was said. Others recall
what they understood was meant by what was said. Having ob-
served these witnesses, some are more credible and more accu-
rate than others. I have no doubt, for example, that when Brooks
asked Smith why employees could not get more money, Smith
replied something very much like, “with or without a Union [the
employees] were not getting [any] more money,” or words to that
effect. Similarly, I credit Margaret Johnson that when she asked
Smith what employees were going to receive if they work 30
years, Smith replied, “Nothing,” or similar words. Such state-
ments obviously do not encourage employees to choose the Un-
ion to represent them, but the employer is not obligated to do so.
The statements described above are sufficiently ambiguous
that they may impart a lawful meaning, as well as an unlawful
one. While one can conclude that Smith threatened futility in
selecting the Union, it is just as reasonable—and in the context of
this case more likely—Smith was simply conveying to employ-
ees that Respondent was stretched to its economic limit, and it
was not going to give employees more simply because they se-
lected the Union to represent them. Employees are fully capable
of analyzing and weighing such remarks in the context of a
heated campaign such as that conducted by both the Union and
Respondent.
I credit April Mason only to the extent she testified Smith
stated that Respondent would bargain with the Union “from
scratch,” testimony corroborated by Margaret Johnson. I do not
credit Mason’s claim Smith told employees that “before he
[would] let the Union come in, he would close the factory.” That
alleged statement is internally inconsistent with his statement that
Respondent would bargain—albeit from scratch—and is not
supported by a single other witness. I have no doubt whatever
that Smith did say something about the possibility—or even the
probability—of the plant closing. This was testified to by John-
son and by Marable. According to Marable, Smith stated to em-
ployees “we wouldn’t be able to have a Union . . . [and] if we do,
it would be just a matter of time until [the plant] would close.”
Marable’s use of the phrase “it would just be a matter of time”
strongly suggests and tends to corroborate Smith that remarks
about closing were made in the context of economic conditions.
This becomes especially clear from Johnson’s testimony, in
which she expressly remembered that remarks Smith may have
made about closing were in the context of his statement that “if
the Union came in, he wouldn’t be able to afford their prices.” I
therefore conclude Smith did not threaten plant closure as retalia-
tion for employees selecting the Union. Rather, Smith warned
employees that the Union could cause economic consequences
which might result in the plant closing.
The internal inconsistency in Dequta McBee’s testimony is
obvious. According to her, when she asked Smith, if “the Union
[does] comes in, will you sit down and bargain with them?”,
Smith replied, “No, we don’t have the—if the Union come in we
do not have to sit down and bargain with them.” She then went
on to testify Smith stated, “We do not have to give you all any-
thing. All we have to do is bargain in good faith.” Obviously
Smith did not say both that Respondent did not have to sit down
and bargain with the Union—and that it did have to bargain in
good faith. It is apparent from the testimony of both McBee and
Smith that Smith told employees Respondent did not have to
agree to any union demands (“we do not have to give you all
anything”) but that Respondent did have to sit down and bargain
with the Union in good faith. Obviously such a statement is an
absolutely accurate description of the law and does not violate the
Act.
Based on the above, I find the evidence inadequate to conclude
that during his remarks to employees on August 18, Smith threat-
ened employees with plant closure or that it would be futile to
select the Union as their collective-bargaining representative. I
shall therefore dismiss those allegations from the complaint.
Supervisor Barbara McCluster, on the other hand, did not tes-
tify at the hearing. The testimony of employee Andrews stands
unrebutted and, as described, constitutes a clear and unequivocal
threat of plant closure. Accordingly, I find that by McCluster’s
statement, Respondent violated Section 8(a)(1) of the Act. See
Roadway Packaging System, 302 NLRB 961, 963 (1991).
JONBIL, INC. 659
I. August 18: Rosa Mosely
Employees Victoria Brooks and Gwen Canada, and former
employee Catherine Martin, testified that Rosa Mosely was at the
August 18 meeting between Smith and employees concerning
paychecks, described above. All testified that after Smith met
with employees, Mosely spoke to a few employees separately.
According to Brooks, Mosely said that if employees do not leave
the Union alone, the Company would close the plant. Canada
testified very similarly to Brooks, noting that Mosely said, “if
you don’t listen to Mr. Smith, they would close the plant down if
the Union [came in].” Martin corroborates both Brooks and
Canada, testifying Mosely stated that “we had better listen to the
owners . . . because if we didn’t, that they would close Jonbil
down.”
I credit Brooks, Canada, and Martin over the bare denials of
Mosely. All three corroborate one another with enough detail yet
just enough difference in their description that I have no doubt
whatever they are telling the truth—and accurately so. I find that
Mosely threatened plant closure if employees selected the Union
to represent them, and Respondent thereby violated Section
8(a)(1) of the Act.
J. August 22: Laundry Manager John Reese
Employee Angela Ward testified that around August 22, she
met with Laundry Manager John Reese in his office. Ward testi-
fied during their conversation, Reese told her his uncle lived in a
city that had unions, and they were always starting riots. The two
of them talked about how some of the employees at Jonbil were
no longer talking to each other, and Reese said “if you think it’s
bad now, wait until the Union comes in.”
According to Ward, Reese continued talking and informed
Ward about bargaining with the Union. Reese stated that if the
Respondent gave the employees more money, then “[Jonbil]
could take one of our holidays like Christmas . . . away from us.”
Reese testified at the hearing, but was not asked by Respon-
dent’s counsel about any conversation he had with Ward.
Ward’s testimony stands uncontroverted. I find nothing unlaw-
ful, however, in Reese’s remarks. Reese’s remarks accurately
describe some of the possible consequences of unionization. The
comment about interpersonal employee relationships worsening
if the Union were voted in was obviously a mere personal opin-
ion about how employees would behave between themselves, and
did not in any way suggest specific action or reaction by Respon-
dent itself. The comment about employees possibly losing a
holiday in return for a pay raise simply represents an accurate
description of the possible give-and-take of the bargaining proc-
ess. There is no indication Reese threatened any retaliation by
Respondent if employees selected the Union to represent them.
Accordingly, I shall dismiss complaint allegations related to this
conversation.
K. August 22: Fred Moore Meeting
Diana Hawley testified that on August 22, she attended a
group meeting of half of her department at which Vice President
of Manufacturing Fred Moore spoke to employees. According to
Hawley, Moore told employees they were like family and “the
Union would change our attitudes and that we [employees]
wouldn’t [be] able to talk to the supervisors.”
Moore testified that he spoke from a prepared speech and did
not deviate from his prepared text. Moore’s speech, however,
notes that one of the changes that would occur should the Union
be voted in is that his “personal relationship with each and every
one of [of the employees] would change and [his] ability to work
with [them] would be restricted.” The speech also states that no
longer “could we work side by side, but with a union steward
between us.”
Moore’s own speech clearly informs a reasonable person that
selecting the Union will cause employees to lose their ability to
discuss work-related matters with management, something which
the Board has held on numerous occassions constitutes a threat of
loss of benefits in violation of Section 8(a)(1) of the Act.
L. Late August: Rosa Mosely
Catherine Martin testified that near the end of August, she had
a conversation, one of several, with Supervisor Rosa Mosely at
Martin’s machine. Mosely asked Martin what she thought the
Union could do for her. According to Martin, during this conver-
sation Mosely told Martin that if the Union got in, and it said
strike, the employees would have to strike, and management
would not have to bargain or negotiate with the Union. I credit
Martin that Mosely also stated that if the Union was voted in, all
the benefits including vacation pay, holiday pay, and insurance
would be stopped right then, and that the employees would not
get those benefits back until a contract was negotiated.
I credit Martin’s very detailed testimony over Mosely’s bare
denials. Further I find that Mosely’s comments constitute threats
of loss of benefits if employees were to select the Union as their
bargaining representative in violation of Section 8(a)(1) of the
Act. See Baddour, Inc., 303 NLRB 275 (1991); Be-Lo, supra;
Fieldcrest Cannon, supra.
M. Late August to Mid-September: Rosa Mosely
Sherry Hailey testified that that she had about 10 conversations
with her supervisor, Rosa Mosely, about the Union from late
August until election day in mid-September. According to
Hailey, Mosely would come up to Hailey at her machine and start
a conversation, which would soon get around to the Union and
the Company. Hailey testified credibly Mosely told her: “Tom
Smith would close the plant if the Union [came] in. [Smith]
wasn’t going to let a Union tell him how to run this Company
and he would make us go on strike because he would not negoti-
ate with the Union, he wouldn’t negotiate at all and the Union
would make us strike.”
Hailey is one of several employees who testified credibly to
remarks made to them about the Union by Supervisor Rosa
Mosely, who apparently took it on herself to conduct her own
vigorous antiunion campaign after hearing remarks and speeches
of top-level management. The credible evidence shows that
Mosely in her own remarks to employees repeatedly threatened
plant closure, the inevitability of strikes, and the futility of em-
ployees selecting the Union to represent them, and Respondent
thereby violated Section 8(a)(1) of the Act. See Be-Lo, supra;
Fieldcrest Cannon, supra.
N. September 5: Calvin Mosely
Orin Osborne, a 10-year employee, testified that on September
5, he had a conversation with Shipping Manager Calvin Mosely
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
on the receiving floor. Mosely told him Hamco, another plant in
town, was closing. Osborne testified credibly Mosely then stated
that Jonbil would close down by Christmas if the Union got in.
Mosely denied making the statement attributed to him by Os-
borne, but I found Osborne more credible with regard to this
conversation.
Based on Osborne’s credible testimony, I find Mosely’s state-
ment that Jonbil would close by Christmas if the Union were
selected by employees constitutes a clear threat of plant closure
in violation of Section 8(a)(1) of the Act. See Fieldcrest Cannon,
supra.
O. September 7: The Debate
On September 7, UNITE Representative David Sailer and Re-
spondent’s human resources director Jack Albertson engaged in
an open debate in front of most of the employees. Employees
Brogdon, Hayes, and Hawley, as well as former employee Mar-
tin, all testified that during the debate, Albertson asked the em-
ployees to raise their hand if they were for the Union. It is undis-
puted that a number of employees present did in fact raise their
hands in response to something Albertson said.
Counsel for the General Counsel argues that Albertson asking
employees to raise their hands during the debate constituted inter-
rogation and polling in violation of Section 8(a)(1) of the Act. I
find, however, that this is not what occurred. In reaching this
conclusion, I am well aware that both current and former em-
ployees, as well as the union representative who was at the event,
all testified that Albertson asked employees to raise their hands if
they supported the Union. They provided little context, however,
in which this is supposed to have occurred. Moreover, from the
perspective of the employees, it may well have appeared as if this
is what happened. Albertson’s explanation how this incident
developed is particularly credible in the context of this incident.
The debate was held in a large warehouse with 40-foot ceil-
ings. There was only one microphone for Albertson, Sailer, and
the Reverend Bill Luck, a local minister who acted as the mod-
erator, to share. Neither party, by the way, called Luck to testify
concerning Albertson’s alleged polling of employees. For the
most part, union supporters were not a bashful, shy group. Nor
was this some purely intellectual debate. Rather this was a spir-
ited, highly partisan, and somewhat rachous event—with over-
tones of a pep rally from each side.
Albertson testified credibly that he did not literally ask em-
ployees to raise their hands if they were for the Union, but rather
there was a point during the debate where employees asked ques-
tions. Employees in the audience did not have a microphone, and
when a question was addressed to him, Albertson repeated the
question before trying to answer it. During this question-and-
answer period, a woman asked why the Company did not recog-
nize the Union when it was obvious that so many employees
supported it. She then challenged Albertson to ask for a show of
hands in support of the Union. Albertson testified credibly he
responded that he did not care to know how many employees
were in favor of the Union. At that point, someone else in the
audience asked Albertson, “What don’t you care about?” Al-
bertson replied, “She wanted me . . . to ask by a show of hands
how many people were here for the Union.” At that point, a
group of employees raised their hands.
I agree with Respondent that Albertson’s testimony was at
least partially supported by a “Freudian slip” by Orin Osborne,
who appears to have caught himself in midthought. When asked
about Albertson’s alleged interrogation or polling, Osborne testi-
fied, “It started off was a lady asked—Jack Albertson asked how
many was for the Union.”
It is highly unlikely that an experienced management represen-
tative with Albertson’s background would openly interrogate an
entire group of employees about their union support in the pres-
ence of a union organizer. More importantly, I credit Albertson
entirely regarding the way in which this alleged polling of em-
ployees occurred at the debate. Accordingly, I find that at this
debate, Respondent did not unlawfully poll or interrogate em-
ployees, and I shall dismiss that allegation from the complaint.
P. September 11–12: Fred Moore Meetings
Employee Dequta McBee testified that on or about September
11, she attended a meeting held by Vice President of Manufactur-
ing Fred Moore with about 12 other employees, most of who
were relatively new employees. McBee agrees with Moore that
he read remarks from a prepared text. McBee testified Moore
said that “if the Union came in, that all our holidays would be
taken from us, like Christmas, Thanksgiving, Labor Day. That
they would have to wipe the slate clean, we will start all over.
And there would be less holidays than we have now.” According
to McBee, Moore further stated that if the Union wins, then it
will make employees go out on strike, and if they went out on
strike, the employees would be out of a job—Jonbil would sim-
ply hire more employees to work in their place so that they would
all be out of a job.
McBee testified that around September 12, a few days before
the election, Moore conducted yet another meeting with about 12
employees and Supervisor Barbara McCluster. In this meeting,
Moore allegedly told employees that the Respondent “would just
have to bargain in good faith. They didn’t have to negotiate with
the Union because no law stated that they had to negotiate with
the Union.” Moore’s alleged comments are then placed in real
context when McBee continued, “Which I didn’t know whether
that was true or not, but from the meetings I had attended . . . it
was expressed to me that a company do have to give us some-
thing. You know. They have to give us something if the Union
did come in.”
According to Michelle Brogdon, she attended the meeting, and
Moore simply stated Jonbil “couldn’t afford to give [employees]
what [they] wanted, that they were in financial difficulties.”
Brogdon stated that Moore had some papers from which he ap-
peared to occasionally read.
Moore credibly testified that he read from a prepared text.
According to Moore, he informed employees at these meetings
that if the Union was voted in, Respondent and Union would
have to sit down and start bargaining for things such as “holidays
and vacations and all of that.” Moore candidly admitted that he
reminded the employees of Respondent’s undeniable financial
plight and that “if the Union won the vote and went on strike,
[Respondent] couldn’t survive no more than maybe two to three
months.”
Counsel for the General Counsel asserts that Moore’s state-
ments to employees constitute threats of plant closure, of loss of
JONBIL, INC. 661
benefits, futility, and the inevitability of strikes in violation of
Section 8(a)(1) of the Act. I disagree. Moore credibly denied
telling employees that any specific benefits would be taken from
them, and admits telling employees that all benefits would have
to be negotiated. Moore admitted he informed employees that
the parties would “start over” and start to bargain for their bene-
fits, holidays and vacations.
When considering credibility of counsel for the General Coun-
sel’s witnesses and Respondent’s witnesses, counsel for the Gen-
eral Counsel contends that its witnesses’ testimony is unlikely to
be false inasmuch as Gwen Andrews, Victoria Brooks, Michelle
Brogdon, Gwen Canada, Sherry Hailey, Diana Hawley, Corine
Hayes, Dequta McBee, Penny Staten, and Angela Ward were
employed by the Respondent at the time of their testimony.
Thus, these witnesses testified adversely to their own interest
and, the argument goes, should be credited over the testimony of
Respondent’s witnesses. In making credibility resolutions, I am
fully aware that many employee witnesses can be said to have
testified against their own interest. Indeed, I find few instances in
which I have any reason to believe these witnesses knowingly or
intentionally misconstrued any of the facts. In other words, I
have no reason to believe that they themselves do not honestly
believe their own testimony. Whether they are accurate, how-
ever, is another matter altogether.
McBee’s testimony represents a particularly good example.
McBee’s testimony clearly shows that, while perhaps in good
faith, she misunderstood what was actually said to her by focus-
ing on only a portion of that. Counsel for the General Counsel
has tried to build on that by lifting specific phrases out of context.
This is especially evident in the portion of McBee’s testimony in
which she says Moore told employees that Respondent “would
just have to bargain in good faith” but at the same time “didn’t
have to negotiate with the Union.”
Based on a composite of the credible portions of the testimony
of McBee and Brogdon, and the wholly credible testimony of
Moore, I find that Moore told employees if the Union were voted
in, all benefits would be subject to negotiation; that from the
company’s standpoint, negotiations would “start all over;” that
Respondent would not be required to give in to the Union’s de-
mands (something different from what employees had been led to
believe in union meetings); and that Respondent would only have
to bargain in good faith. I also find Moore told employees that if
they went out on strike, they would be permanently replaced. The
Board has repeatedly found that none of these specific comments,
without more, violates the Act. All of these statements represent
an accurate statement of the law and/or reasonable description of
the give-and-take process of negotiations.
Finally, Moore reminded the employees of Respondent’s un-
deniable financial plight, and opined that “if the Union won the
vote and went on strike, [Respondent] couldn’t survive no more
than maybe two to three months.” As noted above, the Board
and the courts have repeatedly held that such comments must be
viewed in their entire context. Given Respondent’s undeniably
bleak financial condition, I find nothing inappropriate in Moors
telling employees that Respondent could not survive a strike for
more than 2 or 3 months.
The alleged threats of the futility of bargaining were really
statements based on the accurate and poor economic condition of
the Company. The Union had distributed literature implying that
it could get Jonbil employees substantial increases in wages and
benefits. It is not unlawful for an employer to describe the give-
and-take of the bargaining process, to inform employees that the
employer does not have to agree to anything that the union pro-
poses in bargaining, or to inform employees that it may not be
able to afford what the union proposes. See, e.g., C & D Charter
Power Systems, 318 NLRB 798 (1995); Custom Window Extru-
sions, 314 NLRB 850 (1994); Plated Plastic Industries, 311
NLRB 638 (1993).
Q. September 13: Albertson Meeting
Employee Michelle Brogdon testified that on or about Sep-
tember 13, she attended a meeting held by Human Resources
Director Albertson with about 10 other employees. According to
Brogdon, Albertson stated at the meeting that Jonbil would not
have to bargain even if the Union is selected to represent the
employees. According to Brogdon, Albertson asked the employ-
ees to “go home and think about the Union and if [they] had any
questions to call him.”
Albertson testified at length at the hearing, and credibly denied
ever telling employees that Respondent would not have to bar-
gain with the Union even if elected by employees.
Counsel for the General Counsel tries time and again to claim
that Respondent told employees that selecting the Union would
be futile in violation of Section 8(a)(1) of the Act, but the credi-
ble evidence simply does not support such a conclusion. As with
employee Dequta McBee, whose testimony is described at length
in the preceding section, the record shows that employee wit-
nesses called by counsel for the General Counsel often misunder-
stood what was actually said to them by focusing on only a por-
tion of that, and counsel for the General Counsel has tried to
build on that by lifting specific phrases out of context. I am sim-
ply not confident that Brogdon is any more credible than McBee
in reporting what Albertson actually said to employees. To many
of these employees called by counsel for the General Counsel,
saying that Respondent “would just have to bargain in good
faith” is the same thing as saying that Respondent “didn’t have to
negotiate with the Union.” This is particularly true where, as
here, employees were led by the Union to believe that if they
elected it, Respondent would have to give them something. I
credit Albertson that he never told employees Respondent would
not have to bargain with the Union even if elected, and I shall
dismiss that allegation from the complaint.
R. September 13: Rosa Mosely
Penny Staten testified that during the union campaign, Super-
visor Rosa Mosely would come up to Staten from time to time
and initiate conversations, often about the Union. On or about
September 13, Staten was at her sewing area when she had a one-
on-one conversation with Mosely. Staten testified credibly that
on this day, Mosely told Staten, “before Mr. Winkler would let a
Union come into Jonbil he would close the doors.” Mosely de-
nied making this statement to Staten, just as she denied making
similar statements to other employees. I credit Staten, and I find
that Mosely violated Section 8(a)(1) of the Act by threatening
employees with plant closure if they selected the Union to repre-
sent them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662
S. September 14: Winkler Speech
On September 14, Corporate President and CEO Herbert
Winkler addressed employees one last time on the day before the
Board-conducted election. It is undisputed that certain known
avid union supporters were not invited to this meeting and were
asked to leave.
Employee Dequta McBee testified Winkler told employees at
the meeting that the union representative was a “s.o.b.” and that
“the Union members were damn fools.” McBee also asserted
that Winkler stated before he would let the Union come in, he
would close the plant because he could make more money as an
accountant than working at Jonbil. According to McBee,
Winkler also told employees he had a letter from Calvin Klein
stating that if the Union won at Jonbil, it would lose the contract
with Calvin Klein. McBee testified that she was aware the Union
had received a letter from employees who produce garments for
Calvin Klein and the letter stated how those workers supported
Jonbil workers in their efforts to organize Jonbil.
Employee Raymond Toone testified about the way in which
certain employees were escorted out of the meeting because
“they [were] for the Union.” According to Toone, Winkler then
started out by saying he was the “s.o.b. that the people wanting
the Union [were] talking about.” Toone testified Winkler told
employees he was not willing to negotiate with the workers be-
cause he preferred to close the plant down than negotiate any-
thing with the employees.
Winkler credibly denied threatening plant closure as claimed
by McBee and stating a refusal to negotiate as claimed by Toone.
Winkler testified credibly that on this occasion, he read a scripted
speech to employees word-for-word as previously written.
Winkler testified credibly that he scripted this speech in so much
detail that carats were even inserted in the text to remind him
where to take pauses. Winkler rehearsed the speech for 2 days
before he actually delivered it. I credit Winkler that his remarks
to employees on this occasion came entirely from the scripted
speech.
It is unnecessary to quote the speech at length. Certain pas-
sages in the speech, however, do deserve specific attention. After
Winkler informed employees about the undeniable dire financial
situation Respondent was in, he then read to employees the fol-
lowing:

Tomorrow’s decision could affect everyone who depends on
your paycheck and most of the people in this town. Why?
Because Jonbil is in trouble, big trouble. . . Jonbil is in big
trouble, and, in my opinion, what could put this company
under is the division and infighting and yes, even the possi-
ble strike that this union could bring to Chase City. . . .
[Emphasis in original.]

Later in the speech Winkler discussed how an economic strike
at the plant could result should he not give in to “unreasonable”
Union demands. Winkler stated that Respondent could “try to
survive by operating . . . with replacements.” Winkler then went
on to say, “And I am concerned about those employees who
would find it difficult to find another job if a union strike puts
Jonbil out of business.”
It is clear that Winkler dwelt at length on the possibility of Re-
spondent going out of business. As I have noted above, the
Board and the Courts have held that statements about plant clos-
ing are not unlawful when they are reasonable predictions based
on economic factors beyond the control of the employer. I find,
however, that Winkler repeatedly crossed that line and threatened
plant closure based on circumstances very much within Respon-
dent’s own control in order to frighten employees to vote against
the Union. My analysis begins with the portion of Winkler’s
speech in which he stated, “what could put this company under is
the division and infighting . . . that this union could bring.”
Winkler is in fact predicating the possibility of the plant closing
based on nothing more than employees selecting the Union to
represent them, i.e., employees exercising their Section 7 rights
protected by the Act. The fact that he almost immediately cou-
ples this with a “possible strike,” does not alter the fact that with
these words he is predicating possible plant closure with nothing
more than employees selecting the Union.
It is apparent from the context of the speech that Winkler also
links possible plant closure with strikes, but I find he does not
always do so in the context of circumstances beyond Respon-
dent’s control. Clearly, Winkler opines that “what could put this
company under is . . . even the possible strike that this union
could bring . . . .” Later Winkler told employees, “giv[ing] in to
unreasonable union demands then in my opinion this company
will go under—because we cannot afford those increased costs.”
There is nothing objective, however, to predicate the view that
the Union would necessarily make unreasonable economic de-
mands. If Respondent was in the poor financial condition it
claimed, and was willing to document this for the Union in nego-
tiations, the Union might obviously ask for less than they might
otherwise want, or even give concessions. However, Respondent
never mentioned this scenario to employees for obvious reasons.
Rather, Winkler simply offered an unfounded threat of closure
predicated upon undefined and unfounded beliefs.
Further, part of Winkler’s effort to instill in employees the fear
of Respondent closing also involved an intentional misconstruc-
tion and misinterpretation of a letter received from Calvin Klein,
one of Respondent’s customers. Winkler stated to employees
that he had received a letter from Calvin Klein informing Jonbil
that Klein would withdraw its business from Respondent should
the Union win the election. Winkler informed employees that the
“union will get Calvin Klein to stop giving us business,” should
the employees elect the Union to represent them. However, the
letter in question fails to substantiate Winkler’s description.
Rather, the letter sets forth that the unionized employees who sew
Calvin Klein clothes at another plant “have some control over
who else gets Calvin Klein contracts” and so those employees
will oppose any company that treats its workers unfairly. No-
where does the letter state or even imply that Klein would take
business elsewhere if Respondent’s employees became union-
ized. Winkler exaggerated the statements in the letter when he
spoke to his employees in order to suit one purpose—sway the
outcome of the election scheduled for the next day by using fear
of the possibility of Respondent going out of business. I find that
Respondent violated Section 8(a)(1) of the Act by threatening
employees with loss of jobs and plant closure should they select
the Union as their representative.
JONBIL, INC. 663
T. September 14–15: Laundry Manager John Reese
Raymond Toone worked for Respondent approximately 4
years until he quit in early 1996. Toone testified that on Septem-
ber 14 or 15, he was cleaning up in the pressing area when laun-
dry manager Reese came in and told Toone to come into the
washroom. Toone testified credibly Reese then told him that he
needed Toone to “think about the way [he] was going to vote in
the election. Because [Reese] didn’t want me to lose my job and
that [Reese] didn’t want to lose his job.” Reese then told Toone
that he needed to try and get some other employees “to vote, you
know along with me.” Toone was told that Calvin Mosely
wanted to speak to him, so Toone left.
Calvin Mosely met with Toone and told Toone, “we need
some Company support in the election.” Toone testified that
while he wanted to vote for the Union, he voted for the Company
because he “was scared I wouldn’t have no job to come back to,
so I voted for the Company.”
Angela Ward testified that Reese also spoke to her very briefly
on election day. Ward testified credibly, “right before [the em-
ployees] went to vote, Reese came by, and he said we better pray.
I said pray for what, Johnny, and he said we better pray for our
job.”
I find that Reese violated Section 8(a)(1) of the Act by threat-
ening Toone with loss of his job should the Union win the elec-
tion. Further, it is not unreasonable to conclude Reese and Cal-
vin Mosely were working together in approaching Toone, for
Reese instructed Toone to see Mosely. Consequently, even
though Mosely only told Toone that Respondent needed some
support in the election, I find that these comments tended to ratify
or enforce the threat uttered by Reese himself, and I therefore
find calling Toone to Mosely’s office for this purpose also served
to interfere with Toone’s Section 7 rights in violation of Section
8(a)(1) of the Act.
Ward’s credible testimony establishes that Reese also violated
Section 8(a)(1) of the Act by threatening loss of jobs. See Be-Lo,
supra; Fieldcrest Cannon, supra; Heritage Nursing Homes, Inc.,
269 NLRB 230, 232 (1984). Such comments are especially co-
ercive given the fact that it was uttered on the day of the election
just as Ward was preparing to vote.
U. September 15: Refusal to let Employees Leave Property
Hailey, Martin, and Staten testified that on the day of the
Board-conducted election, they were not allowed to leave com-
pany premises and return later to vote. Hailey, who wore a union
T-shirt while at work on election day, testified that she was not
feeling well and so she punched out before 3 p.m. and was going
to go sit in her car until it was time to go vote. Hailey told Su-
pervisor Rosa Mosely what she planned on doing. Mosely in-
structed Hailey not to go outside until she talked to Moore.
When Mosely returned from talking to Moore, Mosely told
Hailey that she could not go outside, and if she did, then she
would not be allowed to come back in and vote. Thus, Hailey
stayed in the snack bar until it was time to vote, at 4:10 that after-
noon.
Martin testified that around 2:45 p.m., she and Staten were told
to clock out. They decided to leave the plant, and come back
later to vote at the appointed time. Mosely told them that rather
than leave, the employees should punch out and go to the cafete-
ria and sit until time to vote, which they did. Staten’s testimony
concerning this event corroborates Martin.
Mosely and Moore testified Moore simply told Mosely to ask
the employees if they would mind waiting in the cafeteria until
their voting time. Mosely claims that is all she did. Mosely de-
nied employees were required to wait in the cafeteria.
I credit the testimony of Hailey, Staten, and Martin regarding
this incident. Counsel for the General Counsel, however, cites no
authority to support this as a violation of the Act, and I fail to see
how requiring the three employees to stay on Respondent’s
premises for approximately 1 hour until it was time to vote inter-
fered with the employees’ Section 7 rights. Accordingly, I shall
dismiss that allegation from the complaint.
V. Mid-September: Reduction in Hours of Catherine Martin and
Penny Staten
Catherine Martin worked for Respondent for over 4 years, un-
til she quit a few weeks before she testified. Penny Staten has
worked for the Respondent for 5 years, and continues to do so.
At the time relevant to this case, Martin and Staten each worked
under the supervision of Rosa Mosely, where they operated sin-
gle needle machines, sewing labels onto the outside of garments.
Most of Martin’s sewing was on “Long Haul” jeans, which is
Jonbil’s own brand.
Martin and Staten testified that prior to the union campaign,
neither would be sent home early if there was sufficient work for
them to sew elsewhere, in which case supervisors would assign
them work in other departments. This testimony is really not
disputed. In fact Plant Manger Ricky Wilson and Supervisor Pat
Dodson agree Martin and Staten were sent to other departments,
including Dodson’s, notwithstanding that Martin and Staten did
not care to work in Dodson’s area. Martin had in the past “turned
jeans,” stayed pockets, and sewed pleats. Staten had stayed
pockets, sewed pleats, and sewed darts.
Both Martin and Staten were open and active supporters of the
Union. Both distributed prounion leaflets in Respondent’s park-
ing lot. Martin wore prounion stickers to work, while Staten
wore a union T-shirt to work.
Martin and Staten testified that beginning about the week be-
fore the September 15 election, their hours decreased as they
were sent home by their supervisor when work was slow, rather
than being assigned to help in other departments as had been the
practice in the past. Both Martin and Staten asserted that on days
they were sent home early, recently hired employees, including
Seamans and Langford, continued sewing Calvin Klein labels on
pants, which they could have performed. Staten testified that she
had been told a few months before the election by Barbara
McCluster, her supervisor until late July, and Rosa Mosely, for
whom she worked at the time of the election, that single needle
operators were not to be sent home early because there was other
work to be done.
General Counsel’s exhibits indicate that Martin worked 11.25
hours the week ending September 9, which did not included time
off for Labor day. The 3 weeks prior to that, Martin worked
17.75, 25, and 26.75 hours, respectively. The three week period
after the week ending September 9, Martin worked 36, 11.25, and
34.50, respectively.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
Using the same documents for Staten, the evidence indicates
that the week ending September 2, Staten worked 23 hours. The
average of the 4 weeks prior to September 2 show that Staten
worked an average of 29.75 hours. The 4-week period after Sep-
tember 2, Staten worked an average of 29.50 hours.
Both Martin and Staten were openly active for the Union dur-
ing the campaign and both were the recipients of threats of vari-
ous types in violation of Section 8(a)(1) of the Act. Moreover,
according to counsel for the General Counsel’s argument, both
women had their hours “substantially reduced,” which in essence
was a layoff for a day or two, within 2 weeks of the election.
Counsel for the General Counsel thus argues that a prima facie
case has been established that Martin and Staten were discrimi-
nated against in violation of Section 8(a)(1) and (3) of the Act.
For the following reasons, I reject this argument.
In short, Staten’s and Martin’s claims were not supported by
the record. The evidence shows that Seamans was not hired until
October 24, 1995, more than a month after the election. Lang-
ford was hired the day after Seamans was hired. Thus, the record
shows clearly that Seamans and Langford were not doing work
Staten and Martin could have done during the period of their
alleged reduction in working hours. Seamans and Langford were
not yet even employees of Jonbil.
Further, Respondent’s payroll records shed serious doubt on
whether Staten or Martin suffered any reduction in work hours
during the election period because of lack of work. A study of
Staten's time records from August 1 through September 30, 1995,
suggest that she worked more hours on average during the elec-
tion period than she did during the overall 2-month period. Her
average weekly hours for the election period were 31.0, while her
average weekly hours for August and September were only 28.3.
A study of Martin’s time records for the same periods showed
that her best week (36 hours worked) was the week of September
11, the week of the election. Although the week before and the
week after were lower, the week after the election (September 18,
1995), Martin was absent 2 full days and worked only a half hour
on a third day because of her own personal needs. Judy Shef-
field, engineering coordinator who works with payroll, testified
credibly that she reviewed Martin’s time schedule and noted that
Martin left early from work with work available on September
19, and she was absent from work on September 20 and 21,
thereby reducing the number of hours she could have worked.
The position advanced by counsel for the General Counsel that
recently hired employees were allowed to continue working
while Martin and Staten were sent home is not supported by the
record. However, even if it were, disparate treatment is not es-
tablished. Implied, if not expressed within counsel for the Gen-
eral Counsel’s argument is the assertion that Martin and Staten
should have been retained in place of less senior employees. Yet
there is no evidence that at any time, junior employees were sent
home temporarily from their regular jobs in order to make room
for more senior employees, whether it be Martin and Staten, or
any other employee. Rather, the record simply shows that Martin
and Staten were kept working when there was extra work avail-
able.
The argument that Martin and Staten should have been kept
working rather than other employees is founded on circuitous
reasoning—an implied but unstated argument that Respondent
should be required to afford departmental seniority. Further,
contrary to the argument advanced by counsel for the General
Counsel, the evidence is not at all clear that Martin and Staten
were in essence laid off for a day or two at approximately the
time of the election. For these reasons, I find that counsel for the
General Counsel has failed to establish any disparate treatment of
Martin and Staten, and I shall dismiss those allegations from the
complaint.
W. October 19: Failure to Reassign Orin Osborne
Orin Osborne worked for the Respondent for about 10 years.
Osborne was a material handler for most of his employment with
Jonbil. On October 19, Osborne was transferred to the laundry,
where he worked until he was laid off in early November.
Counsel for the General Counsel maintains that as of October
19, Osborne should have been transferred to truckdriver, rather
than the laundry, and that he should have continued working until
November 13, when Joseph Fromal was laid off. According to
counsel for the General Counsel, Fromal, a truckdriver, worked
in the same department but had less tenure than Osborne. These
allegations are premised on the theory that because of Osborne’s
known union activity, Respondent imposed more stringent work-
ing conditions on Osborne by requiring that he have a commer-
cial driver’s license (CDL) before he could operate a truck, when
such was not required for the other drivers.
Osborne distributed union leaflets where his supervisor, Calvin
Mosely, observed him, and there is no dispute Osborne was an
open and active supporter of the Union.
On October 19, Osborne met with Supervisor Calvin Mosely
and Human Relations Manager Jack Albertson. Albertson in-
formed Osborne that the Respondent was in a severe financial
bind and he could no longer keep Osborne on the floor when
there was no stock, matters which are not disputed by counsel for
the General Counsel. Osborne admits that Albertson then offered
Osborne the job of driving a truck. According to Osborne’s un-
disputed testimony, however, Albertson informed Osborne that
he needed a (CDL) to drive a truck.
As counsel for the General Counsel notes, Albertson and Cal-
vin Mosely both testified at the hearing regarding Osborne, and
neither rebutted Osborne’s allegation that Albertson informed
Osborne he had to have a CDL before he could drive a truck. I
credit Osborne that Albertson said this. I also credit Albertson
and Mosely, however, that Osborne stated he did not want the
truckdriver position. Further, I credit both men that Osborne
refused a similar position in the spring of 1995. After the meet-
ing on October 19, Osborne was not laid off, but was transferred
to the laundry department where he worked until November 3.
Osborne was laid off on November 3 when he refused to work in
the washroom, otherwise known as the rock room, where jeans
are given a stone-washed treatment.
It is undisputed that in April 1995, when Vernell Ghee re-
signed, Calvin Mosely offered Ghee’s job to Osborne. Osborne
turned it down, and Fromal then got the job after Osborne de-
clined it. While Osborne was unaware if truckdrivers Charles
Hughes, Wayne Reese, and Joe Fromal, had a CDL, Hughes
testified that he did not have such a license. Finally, it is undis-
puted that Fromal, who did not support the Union, continued to
JONBIL, INC. 665
work until he was laid off on November 13, while Osborne was
laid off a few days earlier.
Counsel for the General Counsel’s prima facie case concerning
Osborne consists of the fact that he was an active and open union
supporter in a facility where the Respondent engaged in numer-
ous allegations of Section 8(a)(1) of the Act, including a threat to
close the facility directed to Osborne by Mosely in early Septem-
ber, and where a nonunion supporting employee was kept work-
ing after Osborne was let go. While counsel for the General
Counsel’s position carries considerable surface appeal, certain
elements are missing. Most particularly, the record fails to sup-
port a conclusion that Osborne’s union activity was in any way a
motivating factor in his being transferred to the laundry and/or in
his being laid off in early November.
What primarily lends appeal to counsel for the General Coun-
sel’s position is the unrebutted fact Albertson told Osborne on
October 19 that to be a truckdriver, Osborne needed a commer-
cial driver’s license. Why Albertson would have said that is not
at all clear. If Respondent wanted to retaliate against Osborne for
his union activities, it could have used that very excuse to lay off
Osborne then and there. Instead, Respondent went out of its way
to transfer Osborne to the laundry and keep him working. Fur-
ther, while Counsel for General Counsel argues that Fromal
worked slightly longer than Osborne, the credible evidence estab-
lishes that Osborne himself would have continued working if he
had not refused work in the washroom. There is certainly no
evidence that Respondent singled out Osborne for layoff. In fact,
when Osborne was laid off from the laundry job, he was among
30 others who were also laid off. In the final analysis, I conclude
counsel for the General Counsel has failed to prove that Os-
borne’s union activity was a motivating factor either in his being
transferred to the laundry and/or his later being laid off in early
November. Accordingly, I shall dismiss that allegation from the
complaint.
X. October 27: Layoff of Doris Boyd
Doris Boyd worked for Respondent at various times for about
13 years, with the last occasion being from 1991 until her layoff
in November 1995. In early 1995, Boyd worked in the bag and
tag department, where she would bag the pants to go out for or-
ders and sometimes place the price tag on them for the retail
stores. Later in 1995, she was assigned to the picking department
under the supervision of Calvin Mosely. In the picking depart-
ment, she would receive an order form indicating the size and
quantity of pants desired and then pick the request jeans, place
them on a truck, and roll them to the packers. As discussed in
greater detail below, most of Boyd’s orders were for J.C. Penny,
Sears, and Advantage.
Boyd worked in picking with employee Deborah McKinney.
Boyd and McKinney were the only two order pickers at the
Chase City plant. McKinney’s job was to pick “Long Haul”
jeans, Respondent’s own label, marketed primarily to truckdriv-
ers. McKinney would pick selected jeans, place them in a cart,
and carry them to bag and tag to have the tickets attached before
being sent to packing.
It is undisputed that prior to the Board-conducted election, if
Boyd or McKinley ran out of orders to pick, they were sent home
if there was no work to perform in other departments. Boyd
testified that she has worked on about five occasions in other
departments such as bag and tag and long haul.
Boyd was an open and avid supporter of the Union. McKin-
ney did not do anything or wear anything to work that would
indicate she supported the Union.
In November, Boyd was called into the office where she was
told there was not enough work for two pickers, and so she was
being laid off. McKinney, who had been on medical leave for a
month and not working at the time, was allowed to return to her
old job.
Around Christmas, Boyd met with Calvin Mosely to inquire
about work. Mosely informed Boyd that work was still slack.
Mosely explained that the system for picking had been changed,
and most of the orders were being packed straight out of the wash
boxes to the packers stations, thereby reducing the need for the
picking function she had performed. Boyd asked about working
in her old department, bag and tag, but Mosely said there was not
enough work.
In January 1996, Boyd again returned to Mosely, who again
told Boyd that work was too slow to call her back. According to
Boyd, she observed Fernanda Queensberry, supervisor in bag and
tag, picking jeans out of wash boxes, as Boyd previously did for
prepack orders.
Again in February I996, Boyd returned and was told for a third
time that work was still slow, and she would he called back when
things picked up. Boyd asserted that at no time did any supervi-
sor offer her the chance to work an alternative work schedule or
rotate with McKinney prior to being laid off. Kendall Hayes,
assistant shipping manager during the fall and winter of 1995,
testified credibly, however, that he and Queensberry asked Boyd
about working an alternate work schedule with McKinney such
as to rotate week to week, but Boyd refused.
Counsel for the General Counsel asserts that Boyd was unlaw-
fully laid off in November and thereafter failed to be recalled in
violation of Section 8(a)(1) and (3) of the Act. There is no dis-
pute that Respondent was aware of her union sympathies. Coun-
sel for the General Counsel argues that disparate treatment of
Boyd is shown by the fact that McKinney was allowed to con-
tinue working while Boyd was laid off. Thus, counsel for the
General Counsel argues it has met its burden under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). For the following reasons, however,
I find that counsel for the General Counsel has failed to establish
any disparate treatment and has failed to establish that Boyd’s
union activity was a motivating factor in selecting Boyd for lay-
off.
McKinney picked “Long Haul” jeans, a men’s jean that is Jon-
bil’s own label. Because Long Hauls are made only in men’s
sizes, they had a wide variety of sizes, based on 1-inch variations
in waist size and inseam length. Boyd picked various labels of
women’s jeans, which were in sizes 8, 10, 12, 14, and 16. Previ-
ously with the women’s labels and currently with Long Haul, the
order picker received an order for jeans. For example, a chain of
stores might have placed an order for 300 pairs of jeans, with
several of each size and style. The order picker would take the
order, go to storage bins, take out the requested number of each
size and style, and put the jeans on handtrucks. The picker would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
then take the handtrucks to the packers, who would pack the
jeans in boxes and send them on for shipping to the customer.
The record reflects that in 1995, before Boyd’s layoff, Kendall
Hayes, Calvin Mosely’s assistant, decided that it would be more
efficient if the bins containing women’s jeans were placed near
the packers so that the packers could pick and pack at the same
time. This was not done with Long Haul jeans because of the
greater variety of sizes. Allowing the packers to do the picking
of women’s jeans meant that there was less work for the pickers
to do. Because Boyd was primarily responsible for picking
women’s jeans, her work was reduced the most.
McKinney, who had more tenure than Boyd, was on a medical
leave of absence from September 27 until October 30, 1995.
Hayes testified credibly that he had offered Boyd the opportunity
to alternate picking Long Haul with McKinney, but Boyd de-
clined. I also credit Hayes that he also offered to let Boyd return
to belt-bag-and-tag, where she had previously worked, but she
declined that offer as well. Fernanda Queensbury overheard this
conversation and corroborated Hayes’ testimony. Determining
that there was no longer a need for two order pickers, Hayes laid
Boyd off, both because McKinney picked Long Haul, which still
required a picker, and because McKinney had more tenure than
Boyd.
McKinney testified credibly that, in her opinion, there was not
enough work for two pickers. Queensbury agreed, as did Hayes.
Since Boyd was laid off, McKinney has averaged only approxi-
mately 20 hours a week. Although extra pickers are needed for
some rush orders, such work can be done by the supervisors,
which is precisely why Boyd may well have observed Queens-
bury doing some of that work when Boyd returned to the plant in
January 1996. Even this “as needed” work has been drastically
reduced because of combining the picking and packing functions
for the women’s labels. Considering all of the record evidence, I
am convinced Respondent has established that Boyd was laid off
solely for lack of work, and not because of her union sympathies.
Counsel for the General Counsel has failed to establish that
Boyd’s union activities were a motivating factor in her layoff,
and I shall therefore dismiss that allegation from the complaint.
Y. January 15, 1996: Layoff of April Mason
April Mason worked for Respondent on several different occa-
sions during the past 10 years. She was most recently rehired in
January 1994. Mason and Melissa Johnson operated the serge
machines, placing a double lock stitch on a rough edge of fabric
to keep it from unraveling. Mason and Johnson worked under
the supervision of Pat Dodson.
Mason also had some experience performing certain opera-
tions on the single needle machines, a fact which is discussed in
greater detail below. Before the union election, Mason would
sometimes not work an entire day due to the lack of work, and
sometimes she would work in other departments when there was
extra work available.
Mason was an open and active supporter of the Union, a fact
which was known to and is not denied by Respondent.
On January 15, 1996, Mason was laid off. She returned to
work February 13, where she was first assigned to operate a sin-
gle needle machine. Eventually, she was returned to the serge
machine.
Counsel for the General Counsel contends that Mason’s layoff
was discriminatory in violation of Section 8(a)(1) and (3) of the
Act because certain recently hired employees in her department
continued working.
Mason does not dispute that Melissa Johnson had better pro-
duction than her, and that it was logical for Respondent to keep
Johnson. However, from the time of the union election until
Mason was laid off, Mason observed the hiring of new employ-
ees Denise Langford and Margaret Seamens as single needle
operators in Dodson’s department, work which Mason had ex-
perience in doing. It is on the basis of Respondent keeping Lang-
ford and Seamans that counsel for the General Counsel argues
Respondent discriminated against Mason.
Counsel for the General Counsel conveniently ignores certain
important facts. Both Pat Dodson, Mason’s supervisor, and
Ricky Wilson, plant manager at the time of Mason’s layoff, testi-
fied credibly and without contradiction that Mason was to be
called back a week before she actually returned to work. Mason,
however, did not have a telephone, so Dodson had to leave word
with Mason’s family. By the time Mason finally received the
message, a week had passed in which she could have worked.
More importantly, the evidence is quite clear, and in fact not
disputed, that Mason was a relatively slow worker. Dodson testi-
fied without contradiction that she brought Johnson in to help
Mason in the serging work because Mason could not keep up
with the work. However, once Johnson and Mason were both
doing the work, they finished too early, sometimes punching out
as early as 10 or 11 a.m., when their shift was supposed to end at
4:30 p.m. Dodson also testified credibly and without contradic-
tion that her original plan was to keep Johnson in serging and
reassign Mason elsewhere, but because of the slowdown in work,
there was no place to reassign Mason. Accordingly, Mason was
temporarily laid off.
Dodson testified that she laid off Mason and kept Johnson be-
cause Johnson was a faster and more versatile worker. Johnson
agreed that her skills were more versatile than Mason’s. Mason
admitted that Johnson was more productive than she was. While
the relative speed of Johnson and Mason is not disputed by coun-
sel for the General Counsel, the importance of that fact is. Mason
was in the serging job before Johnson, and in fact Johnson was
brought in to help Mason. The fact that Johnson was kept and
Mason laid off suggests that productivity, and not union senti-
ment, was the motivating factor.
Significantly, Johnson herself was a vocal union supporter,
having passed out leaflets, worn union T-shirts, and worn stickers
during the campaign. Johnson testified that everyone in the plant
knew she supported the Union. However, Johnson was never
laid off. Further, Mason herself admitted that many procompany
employees were laid off.
Margaret Seamans and Denise Langford sewed Calvin Klein
labels on that brand of jeans, which was a different type of work
than Mason was doing. While Mason had performed some single
needle work, Dodson testified without contradiction that Mason
could not do the Calvin Klein label work because she was too
slow. Mason herself made no claim to having sewn on labels and
admitted she could not name a specific job that she could have
been assigned to during the time of her layoff.
JONBIL, INC. 667
Mason testified that, even after the election, when work was
slow, she would sometimes be assigned elsewhere. Respondent,
however, was aware of her union sympathies as early as the sum-
mer of 1995. There is no question that at earlier times when
Respondent had plenty of chances to release Mason, it kept her in
spite of her known union sentiments. Mason admitted that there
was no new union-related activity around January 1996 that
might have motivated the company to take discriminatory action.
Considering all of the record evidence, I am convinced Re-
spondent has established that Mason was selected for layoff
solely because of relative productivity, and not because of her
union sympathies. Careful analysis of counsel for the General
Counsel’s position regarding each of the alleged violations of
Section 8(a)(3) of the Act in this case reflects that it is founded on
an unspoken, implied argument that unless Respondent accorded
union activists departmental seniority in layoff situations, it there-
fore discriminated against them in violation of the Act. There is
no evidence, however, that Respondent utilized seniority in mak-
ing any of its layoff decisions except where two people occupied
the same position within the same department. Because of this
implied, yet unspoken argument, counsel for the General Counsel
has repeatedly failed to show actual disparate treatment afforded
the alleged discriminatees. As it relates to Mason, I find counsel
for the General Counsel has failed to establish that Mason’s un-
ion activities was a motivating factor in her layoff, and I shall
therefore dismiss that allegation from the complaint.
Z. February 1996: Failure to Recall Charles Hughes
Charles Hughes worked for Respondent 5 years until he was
laid off on February 12, 1996, from the shipping and receiving
department.
In early 1995, Respondent had three truckdrivers: Wayne
Reese, Hughes, and Vernell Ghee, in order of relative tenure.
Ghee resigned in April 1995, and the position was filled by Jo-
seph Fromal, who is referred to in the transcript as “Joe Farmer.”
Hughes was a “long haul” driver, driving to and from Respon-
dent’s plant in Henderson, North Carolina. When Respondent
closed its Danville, Virginia facility in August 1995, Supervisor
Calvin Mosely assigned Reese to the Henderson route and as-
signed Hughes to the local Chase City route, driving a truck with
materials and finished goods from the bottom plant to the top
plant and making stops at the area landfill. Fromal was assigned
as Hughes’ helper.
During the union campaign, Hughes distributed union leaflets
at the parking lot on several occasions, where Supervisor Calvin
Mosely observed him. Hughes was an open and active supporter
of the Union, a fact which Respondent does not deny.
Fromal was laid off for lack of work on November 13, 1995,
and his layoff became permanent on December 5. Thereafter,
Fromal was reinstated/rehired to a position in the laundry de-
partment on second shift on January 15, 1996. He later changed
to first shift on February 8.
When the Henderson facility closed in February 1996, there
was no need for two drivers. Reese and Hughes occupied the
same position in the same department, and because Reese was
more senior than Hughes, Hughes was laid off effective February
9, 1996. Approximately 15 other employees were laid off around
the same time.
On February 9, Calvin Mosely met with Hughes and told
Hughes he was being laid off. The payroll change notice docu-
menting Hughes’ layoff states that Calvin Mosely “would” rehire
Hughes. It is undisputed Mosely informed Hughes that he would
set up an appointment with Human Resources Director Jack Al-
bertson to talk about other possible positions in the plant. It is
also undisputed that Mosely never set up the appointment for
Hughes to talk to Albertson. Albertson testified credibly that
Mosely did speak to him about this, but according to Albertson,
nothing was ever set up with Hughes because there were no posi-
tions available.
At about the same time as Hughes’ layoff, Fromal was allowed
to transfer from second shift to first shift in the laundry. Counsel
for the General Counsel argues that Hughes should have been
offered this first-shift laundry position because Hughes had more
tenure than Fromal, or, that at the very least, this transfer should
have created a position on second shift in the laundry, where
Hughes previously worked before becoming a truckdriver.
Counsel for the General Counsel argues that work remained
available there, at least for a matter of weeks after Hughes was
laid off.
Laundry Manager John Reese testified without contradiction
that Fromal was not the only second-shift employee from the
laundry allowed to transfer to first shift. Several employees
transferred at the same time, and all in anticipation of the second
shift being phased out. Reese testified credibly that none of the
people who transferred were replaced because phasing out of the
second shift was already under way.
In counsel for the General Counsel’s posttrial brief, he “avers
that while Hughes’ layoff was lawful,” the failure to recall
Hughes to or transfer Hughes to the laundry department was
unlawful. Counsel for the General Counsel argues that when
Fromal was transferred to first shift in the laundry, that position
should have been offered to Hughes, and when it was not, Re-
spondent discriminated against Hughes in violation of Section
8(a)(1) and (3) of the Act. I cannot agree with counsel for the
General Counsel, whose argument effectively mandates not just
departmental seniority, but plant wide seniority if Respondent is
to avoid an inference that it discriminated against Hughes.
As before, analysis of counsel for the General Counsel’s posi-
tion regarding each of the alleged violations of Section 8(a)(3) of
the Act in this case reflects that it is founded on an unspoken,
implied argument that unless Respondent accorded union activ-
ists departmental seniority—or in Hughes’ case plantwide senior-
ity—in layoff situations, it therefore discriminated against them
in violation of the Act. There is no evidence, however, that Re-
spondent utilized seniority in making any of its layoff decisions
unless two people occupied the same position within the same
department. Precisely because of that limited use of seniority,
Hughes, the union supporter, was kept working when Fromal, not
a union supporter, was laid off in November 1995.
Counsel for the General Counsel has repeatedly relied on this
implied, yet unspoken argument requiring the using of depart-
mental or even plant wide seniority, and in doing so has repeat-
edly failed to show actual disparate treatment afforded the al-
leged discriminatees. As it relates to Hughes, I find counsel for
the General Counsel has failed to establish that Hughes’ union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
activities was a motivating factor in his layoff, and I shall there-
fore dismiss that allegation from the complaint.
The Bargaining Order Remedy
The complaint alleges and Respondent admits that the fol-
lowing unit is appropriate for purposes of collective bargaining:

All production and maintenance employees employed by
the Respondent at its Chase City, Virginia, facilities; ex-
cluding all office clerical employees, guards, and supervi-
sors as defined in the Act.

The “Excelsior list” used in the Board-conducted election
contains the names of 198 employees who worked at the “bot-
tom plant” and the names of 121 employees who worked at the
“top plant.” Six challenged ballots were stipulated to be ineli-
gible to vote, and only one challenged ballot remains. There-
fore, at most there are 314 unit employees.
Four union representatives, Harold Bock, David Greenlief,
Mark Wilkerson, and David Sailer, testified without contradic-
tion about soliciting Jonbil employees to sign union authoriza-
tion cards. The union representatives read to or the potential
card signer read the union authorization card prior to signing it.
The employees are bound by the clear language of the card.
See DTR Industries, 311 NLRB 833, 838 (1993). At no time
did they ever inform a Jonbil employee that the sole purpose of
the union authorization card was “only” to get an election.
Harold Bock, assistant regional director for the Union who
had participated in about 30 union organizing campaigns, testi-
fied concerning 20 union authorization cards that he personally
solicited and that he observed the employees sign. Several of
the card signers Bock solicited also signed the union sign-in
sheets for the July 16 and 17 union meetings.
David Greenlief, another union representative, testified
without contradiction regarding 23 authorization cards he per-
sonally solicited and observed the employee sign. Greenlief
received other signed cards from employees at the two union
meetings, but did not see those employees actually sign their
cards. A comparison of all such card signatures against the
sign in sheets and the available W-4 forms shows that they are
authentic. The Board has long held that expert testimony is not
required to prove the validity of the signatures on union au-
thorization cards and has specifically approved the use of W-4
for signature comparisons. See Be-Lo, supra; Action Auto
Stores, 298 NLRB 875, 879 (1990), enfd. mem. 951 F.2d 349
(6th Cir. 1991).
Mark Wilkerson, a third representative of the Union, solic-
ited 11 employees personally. In addition, counsel for the Gen-
eral Counsel introduced W-4 forms for the remainder of the
cards solicited by Wilkerson, and a comparison of the W-4
forms and the sign in lists indicate that the same person signed
both documents.
The remaining authorization cards were introduced and re-
ceived into evidence via the actual card signer, or on a few
occasions, the actual card signer authenticated his/her signature
after the card had been received into evidence via the solicitor.
The record reflects that on August 5, the date used for the “Ex-
celsior list,” the Union had obtained 182 valid union authoriza-
tion cards, and as of that date enjoyed majority status.
I have dismissed many of the complaint allegations, includ-
ing all of the allegations that Respondent discriminated against
various individuals in violation of Section 8(a)(3) of the Act.
Nevertheless, I have found Respondent has committed numer-
ous unfair labor practices before the election, which are gener-
ally considered “egregious” and so serious and substantial in
character that the possibility of conducting a fair rerun election
by use of traditional remedies is slight, at best. I have found
that in speeches to employees, both as soon as Respondent
learned of union activity and as late as the day before the
Board-conducted election, Respondent’s top management offi-
cials threatened employees with plant closure if employees
selected the Union to represent them. In similar circumstances,
the Board has generally held that employees would be best
protected by the issuance of a bargaining order.
In determining whether a bargaining order is appropriate to
protect employees sentiments and to remedy an employer’s
misconduct, the Board examines the nature and persuasiveness
of the employer’s practices. In weighing a violation’s persua-
siveness, relevant considerations include the number of em-
ployees directly affected by the violation, the size of the unit,
the extent of dissemination among the work force, and the iden-
tity of the perpetrator of the unfair labor practices. Holly
Farms, 311 NLRB 273 (1993).
In the current case, Respondent’s highest ranking onsite offi-
cial, Tom Smith, on learning of union activity, conducted meet-
ings with nearly all of the employees wherein he threatened
employees with plant closure. Following his lead, various su-
pervisors began to talk to employees and threatened them with
plant closure and job loss. As the Board stated in General
Stencils, Inc., 195 NLRB 1109, 1110 (1972), threats of loss of
employment and plant closure are especially repugnant to the
purposes of the Act and are inevitably going to be discussed
among employees. The record here reflects that the day before
the election, Herbert Winkler, the majority owner of Jonbil, met
with the vast majority of employees and repeated these same
threats of plant closure and job loss.
The Board has held that conduct of the type engaged in here
warrants the issuance of a bargaining order. See Be-Lo, supra;
Holly Farms, supra; Lasar Tool, Inc., 320 NLRB 105 (1995).
In Salvation Army Residence, 293 NLRB 944 (1989), enfd.
mem. 923 F.2d 846 (2d Cir. 1990), the Board found a bargain-
ing order an appropriate remedy to numerous 8(a)(1) violations,
and noted:

In view of the serious misconduct the Respondent has en-
gaged in, and particularly the threats of closure of the fa-
cility directed at the entire unit, we are convinced that the
coercive impact on the employees has not dissipated, and
in any event we are convinced that the misconduct is
likely to recur. . . . Requiring the Respondent simply to re-
frain from such conduct will not eradicate the lingering ef-
fects of the violations. [Id. at 945–946.]

Respondent contends that a second election is the appropri-
ate remedy in this matter, partly because turnover within the
unit has reduced the impact of any violations of the Act which
may have occurred. There are 115 employees listed on the
JONBIL, INC. 669
“Excelsior list” that have been terminated or permanently laid
off and not recalled. Hence, there has been approximately a 37-
percent (115 of 314) turnover in employees since the election.
In addition, there are nine other employees who have since
been hired and not terminated or permanently laid off. Thus,
the total turnover in bargaining unit employees is 124, which is
39 percent of the 314 complement of bargaining unit employ-
ees. As counsel for the General Counsel argues, the Board has
issued Gissel bargaining orders in cases of even higher turnover
than the instant case. See Be-Lo, supra, 15 (bargaining order
found valid where new employees constituted two-thirds of the
work force); Action Auto Stores, supra at fn. 3 (bargaining or-
der found valid where new employees constituted three-fourths
of the work force); Salvation Army, supra at 946 (bargaining
order valid where new employees constituted two-thirds of the
work force).
Accordingly, I find sufficient precedent that a bargaining or-
der is the appropriate remedy for the unfair labor practices
found herein, and I shall order that Respondent be required to
recognize and bargain with the Union as the exclusive represen-
tative of employees in the appropriate unit.
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
3. On or about July 17, Respondent, acting through Thomas
Smith threatened plant closure if employees chose to exercise
their rights protected by the Act, and Respondent thereby vio-
lated Section 8(a)(1) of the Act.
4. On or about August 8, Respondent, acting through Super-
visor Barbara Stenbridge, interrogated an employee, solicited
grievances from that employee, and expressly or impliedly
promised to remedy those grievances in violation of Section
8(a)(1) of the Act.
5. On or about August 18, Respondent, acting through Su-
pervisor Barbara McCluster, threatened an employee with plant
closure if employees chose to exercise their rights protected by
the Act, and Respondent thereby violated Section 8(a)(1) of the
Act.
6. On or about August 18, Respondent, acting through Su-
pervisor Rosa Mosely, threatened employees with plant closure
if they selected the Union to represent them, and Respondent
thereby violated Section 8(a)(1) of the Act.
7. On or about August 18, Respondent, acting through Fred
Moore, threatened employees with loss of benefits in violation
of Section 8(a)(1) of the Act.
8. In late August, Respondent, acting through Supervisor
Rosa Mosely, threatened employees with loss of benefits if they
selected the Union to represent them, and Respondent thereby
violated Section 8(a)(1) of the Act.
9. In late August to mid-September, Respondent, acting
through Supervisor Rosa Mosely, threatened employees with
plant closure, the inevitability of strikes, and the futility of em-
ployees selecting the Union to represent them, and Respondent
thereby violated Section 8(a)(1) of the Act.
10. On or about September 5, Respondent, acting through
Supervisor Calvin Mosely, threatened employees with plant
closure if they selected the Union to represent them, and Re-
spondent thereby violated Section 8(a)(1) of the Act.
11. On or about September 13, Respondent, acting through
Supervisor Rosa Mosely, threatened employees with plant clo-
sure if they selected the Union to represent them, and Respon-
dent thereby violated Section 8(a)(1) of the Act.
12. On or about September 14, Respondent, acting through
Herbert Winkler, threatened employees with plant closure if
they selected the Union to represent them, and Respondent
thereby violated Section 8(a)(1) of the Act.
13. On or about September 14, Respondent, acting through
Supervisor John Reese, threatened employees with loss of jobs
if they selected the Union to represent them, and Respondent
thereby violated Section 8(a)(1) of the Act.
14. Respondent did not otherwise violate the Act and other
complaint allegations are dismissed as more specifically dis-
cussed above.
15. The following unit is appropriate for purposes of collec-
tive bargaining:

All production and maintenance employees employed by
the Respondent at its Chase City, Virginia, facilities; ex-
cluding all office clerical employees, guards, and supervi-
sors as defined in the Act.

16. On August 5, the date used for the “Excelsior list,” the
Union had obtained 182 valid union authorization cards, and as
of that date enjoyed majority status.
17. Respondent has committed numerous and egregious un-
fair labor practices before the election, which are so serious and
substantial in character that the possibility of conducting a fair
rerun election by use of traditional remedies is slight, at best.
Accordingly, a bargaining order is the appropriate remedy for
the unfair labor practices found herein, and Respondent shall be
required to recognize and bargain with the Union as the exclu-
sive representative of employees in the appropriate unit.
18. The unfair labor practices which Respondent has been
found to have engaged in have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several states
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices in violation of the Act, I shall recommend
that it be ordered to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]