J.P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1979

244 N.L.R.B. 407 (N.L.R.B. 1979)

J. P. STEVENS & CO.. INC J. P. Stelens & (o., Inc. and Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC. Suc- cessor to I extile Workers Union of America, AFL- CIO. Cases I1 ('A 6077 and I I RC 39F7 August 20. 1979 DECISION AND ORDER By CIIAIRMAN FANNING ANI) MIMBFRS JINKINS AND) TRULSI)AIF On March 22, 1978, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. The Charging Party filed cross-exceptions and a support- ing brief, including a reply to Respondent's excep- tions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions 3 of the Administrative Law Judge, as modified herein.4 After the penod for filing exceptions and briefs to the Administrative Law Judge's Decision expired, Respondent filed a motion to reopen the record and to conduct additional hearings. Respondent asserted that the evidence sought to be adduced would show numerous actions taken since the close of the hearing herein to assure compliance with the Act. The General Counsel and the Charging Party have filed briefs in opposition to Respon- dent's motion. We find that the evidence. even if establishing Respondent's assertions. would not in any way undercut our findings herein. Accordingly. Respondent's motion is denied. We also find no merit in the Charging Par- ty's motion to strike Respondent's exceptions and portions of Respondent's supporting brief. 2 Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dri Wall Productsr. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3rd Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find no merit in Respondent's allegations of bias and prejudice on the part of the Administra- tive Law Judge. Thus, we perceive no evidence that the Administrative Law Judge prejudged the case, made prejudicial rulings, or demonstrated a bias against Respondent in his analysis or discussion of the evidence. 3 We agree with the Administrative Law Judge that the Union has made a valid continuing demand for recognition sufficient to support a finding that Respondent has violated Sec. 8a)(5) and (I) of the Act by refusing to recog- nize and bargain with the Union. Unlike the Administrative Law Judge. however, we date the bargaining order as of February 19. 1975. the date the record establishes that a majority of the unit employees designated and se- lected the Union as their representative for purposes of collective bargaining. We further note that the Administrative Law Judge in his Conclusions of Law referred to the election in Case II RC 3987 as having taken place in 1974, 1975. and 1977. The record shows that the election was on February 19. 1975. Hence. we hereby correct the inadvertent references to 1974 and 1977. Finally, we note that the Administrative Law Judge relied on Shopping Kart Food Market, Inc. 228 NRB 1311 (1977,1. in dismissing the Petition- The General Counsel has excepted to the Adminis- trative Law Judge's dismissal of the allegation that Respondent violated Section 8(a)( I) of the Act h\ "instructling its employees as to how they could in- validate union authorization cards when they were called as witnesses in a Board proceeding." In sup- port of this allegation the General Counsel relied on a speech delivered by Respondent's plant managers on April 13 and 14, 1977, on round table discussions be- tween employees and management officials that ibl- lowed the speech, and on a notice posted b Respon- dent on April 26, 1977. The Administrative La\ Judge found that this evidence furnished no basis for concluding that in the course of these events Respon- dent engaged in unlawful interrogation, solicited grievances, promised benefits, or made coercive threats. He further found that, apart from the speech, the evidence did not eveal specifically what was said by management representatives at the round table discussions. Finally, he said that he was unaware oft precedent under the Act which condemns such con- duct since it was unaccompanied by other forms of coercion. Accordingly he found that the General Counsel had failed to present a primtnaJ/ic violation. 5 We find merit in the General Counsel's exceptions. The gravamen of the General Counsel's allegation is a portion of the prepared speech read by Respon- dent's plant managers to small groups of employees at the Carter and Holly plants on April 13 and 14, 1977, just one month before the hearing in this case.' Thus, the plant managers said: er's Objection 8 in Case II RC 3987 In the absence of exceptions thereto. Chairman Fanning and Member Jenkins who dissented n Shipping hurt, find it unnecessary to pass on the merits of this objection n setting aside he election. Member Truesdale. who was not n the Board when Shopping Kar issued. concurs fully in his colleague's position In addition. we note that Shopping Kaur has been overruled recently in General Knlt of Caulrrn. Inc.. 239 NLRB 619 (1978). We find that the Administrative Law Judge's recommendation that Re- spondent first notify the Union and afford the Union an opportunity to consult with Respondent before Respondent takes adverse action for disci- pline against any employee or group of employees at the Wallace facilities is unwarranted Hence, we shall not include this requirement in the Order Finally, we shall modify the Administrative I.aw Judge's recommendation regarding the reading of the notice by () deleting the provision that the Union be afforded an opportunity to have a representative present: and (2t permitting Respondent the option of having a Board agent read the notice or. if the highest management official reads the notice, to afford the Board a reasonable opportunity to provide for the attendance of a Board agent 'The Administrative Law Judge also found that the allegation has not been conclusively litigated and thus denied the General Counsel's motion to amend the complaint to incorporate this allegation. We note that there is no factual dispute as to the remarks by Respondents plant managers in the prepared speech on April 13 and 14. nor as to the wording of the April 26 notice. Furthermore, we note that the exhibit describing remarks made at the round table discussions was submitted by Respondent. Thus. we find that the evidence upon which the General Counsel relies to support the allegation has bee, fully litigated and we hereby amend the complaint to incorporate this allegation. ' Additional portions of the speech are set forth In the Administrative l.aw Judge's Decision. 244 NLRB No. 82 407 I)I!('ISIONS OF1 NATIONA. I.ABOR RELATIONS BOARI) In the upcoming legal proceeding, those employ- ees who signed cards prior to the last election will be called into court to testif about their signature. Unless an employee can prove that he/she was misled or deceived into signing a card, or fraud was involved, or the card was not signed by the employee, the Labor Board will count the card for the Union. Following the speech, Respondent invited the em- ployees to express their views concerning any issue, including the hearing to be held in this proceeding, at round table discussions attended by management offi- cials including the plant manager. Although there is record evidence that employees raised questions and discussed the circumstances surrounding the card signings at these meetings, there is no evidence as to questions, responses, or other expressions by Respon- dent's officials at these meetings.7 We find that Respondent's conduct was a thinly veiled attempt to color testimony in the upcoming Board proceeding. This patent attempt to encourage employees to invalidate authorization cards when they were called as witnesses, as the Administrative Law Judge aptly described, "carried all the earmarks of a deliberate design to capitalize upon a combina- tion of fear and dimmed memories in the interest of influencing testimony to be afforded [sic] in this pro- ceeding." Such conduct reasonably tended to coerce the employees in the exercise of their rights under the Act. 8 In finding that Respondent's conduct violated Section 8(a)(1), we have considered not only the cir- cumstances immediately surrounding the speech but also Respondent's pattern of unlawful conduct in this and previous cases, as detailed in the Administrative Law Judge's Decision.9 Finally, we note that the Charging Party seeks cer- tain remedies in addition to those recommended by the Administrative Law Judge that we have adopted. Considering Respondent's long history of violations of employee rights and its flagrant disregard of Board decisions and court orders, and for the reasons set 7 Respondent also posted a notice pertaining to efforts by NLRB agents to consult with card signers in preparation for the instant hearing following the April speeches. That notice, which urged employees to testify truthfully, also stated: The NLRB agents are interested in whether you signed a card because you were misled into believing it was only to get an NLRB election. or pressured, or if you really intended to designate the Union as your agents. These are important legal questions which may determine whether you are unionized or not. It is well settled that a violation of Sec. 8(a( I ) does not turn on whether the coercion succeeded or failed. Rather. the test is whether the conduct reasonably tended to interfere with the free exercise of employees' rights under the Act. Florida Steel Corporation, 244 NLRB 45 11976): Hanes Ho- siery, Inc., 219 NLRB 338 11975). ' Florida Steel Corporaiion. 233 NLRB 491 (1977), enforcement denied 587 F.2d 735 (5th Cir. 1979). forth in earlier cases involving Respondent 0"' we shall grant the following additional remedies: union access to bulletin boards and lists of employees' names and addresses, and in-plant access for the Union. In addi- tion, we shall require Respondent to include in appro- priate company publications, such as employee news- letters, a copy of the notice, together with Appendix B attached hereto, an explanatory letter, and we shall order Respondent to issue written instructions to all of its supervisors at the facilities involved herein to comply with the notice to employees marked "Ap- pendix A." ORDER Pursuant to Section 10(c) of the National Labor Act, as amended, the National Labor Relations Board hereby orders that the Respondent, J. P. Ste- vens & Co, Inc., New York, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain in good faith with Amalga- mated Clothing and Textile Workers Union, AFL- CIO-CLC, as the exclusive collective-bargaining rep- resentative of employees in the unit found appropri- ate below for purposes of collective bargaining. The bargaining unit is: All production and maintenance employees em- ployed at the Employer's Carter plant, Holly plant, and warehouses at Wallace, North Caro- lina, including plant clerical employees, watch- men, computer programmer in the dye house, electrical technician, and plant driver; excluding office clerical employees, professional employees, cloth store clerk, managerial employees, guards and supervisors as defined in the Act. (b) Impeding employees in their right to distribute union literature in nonworking areas on nonworking time by promulgation, maintenance, or enforcement of any rule prohibiting employees from engaging in such activity, by physically obstructing them, threat- ening to call local law enforcement authorities, sus- pending them, or by in any other manner interfering with their right to engage in such activity protected by Section 7 of the Act. (c) Engaging in surveillance of employees engaged in the distribution of union literature in nonworking areas on their own time, or creating the impression that union activity is the subject of surveillance. (d) Threatening employees with discharge because of their union activity. 10 See J. P. Stevens & Co., Inc., 239 NLRB 738 ( 1978}, and 240 NLRB 33 (11979). 408 J. P. STEVENS & CO., INC. (e) Instructing employees to report to the Respon- dent the union activities of other employees. (f) Granting benefits to employees to discourage them from engaging in activities in support of a union. However, nothing herein shall be construed as requiring Respondent to vary or abandon any eco- nomic benefit or term and condition of employment which its employees at its Wallace facilities, or any other facilities, would otherwise be entitled to receive. Benefits shall not be denied to employees at Respon- dent's Wallace facilities, or at any other of its facili- ties, that such employees would have received but for their support of a union or for their involvement in protected concerted activities. (g) Instructing employees as to how they could in- validate union authorization cards when they are called as witnesses in a Board proceeding. (h) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their right to self-organization: to form, join, or assist the aforesaid union, or any other labor organization: to bargain collectively through representatives of their own choosing; and to engage in other concerted ac- tivities for the purpose of collective bargaining or mu- tual aid or protection, and to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain with the aforesaid Union, as the exclusive representative of all employ- ees in the appropriate unit described above and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Make whole the Union for all reasonable and necessary organizational costs and expenses sustained during the campaign at Wallace, North Carolina, be- tween September 1974 and February 1975, including, but not limited to, salaries, travel expenses, subsis- tence, materials, rents, cost of printing, and postage fees, the total amount due under this provision to in- clude interest as set forth in the section of the Admin- istrative Law Judge's Decision entitled "The Rem- edy." (c) Make whole the National Labor Relations Board and the Union for the reasonable costs and expenses incurred by them in the investigation, prep- aration, presentation, and conduct of this proceeding. said sums to include interest as set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (d) Post in conspicuous places at all its plants cop- ies of the attached notice marked "Appendix."" Cop- " In the event that this Order is enforced by a Judgment of a nited States Court of Appeals. the words in the notice reading "Posted by Order of ies of said notice, on forms provided by the Regional Director for Region I 11. after being duly signed on behalf of Respondent by its president, the chairman of its board of directors, by each of the members of the board or directors, and by the highest managerial official of the plant in which the notice is posted, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered. de- faced, or covered by any other material. (e) Reproduce and mail to the home ot each of its employees at all of its plants a facsimile otf the afore- said signed notice, together with a letter appended hereto as "Appendix B." Said letter shall be repro- duced on the Company's regular business stationary and signed by the highest official of the recipient's plant. Respondent shall provide the Regional Direc- tor for Region I I with proof of such mailing. (f) Reproduce and give to each supervisor at its Wallace, North Carolina, facilities a facsimile of the aforesaid notice, and give written instructions, signed by the highest official at each facility. to each supervi- sor to comply with the provisions of the notice. Re- spondent shall provide the Regional Director for Re- gion I I with proof of compliance with this paragraph. (g) At such reasonable time after the entry of this Order, as the Board may request, convene during working time by departments and shifts all its em- ployees in each of its plants. and, at its option. either have the notice read by the highest managerial official in the plant or provide facilities and permit a Board agent to read the notice to the said employees. In the event Respondent chooses to have the notice read by its official, the Board shall be afforded a reasonable opportunity to provide fior the attendance of a Board agent. (h) Upon request of the Union. made within 2 years from the date hereof, immediately grant the Union and its representatives reasonable access to the plant bulletin boards and all places where notices to employees are customarily posted, at each of Respon- dent's plants, for a period of I year from the date of request. (i) In the event that during a period of 2 ears foil- lowing entry of this Order any supervisor or agent of Respondent convenes any group of employees at any of Respondent's plants and addresses them on the question of union representation. give the Union rea- sonable notice thereof and afford two union represen- tatives a reasonable opportunity to be present at such the National Labor Relations Board" shall read "Posted Pursualnt to a Judg- ment of the United States Court of Appeals Entircing an Order of the Na- tional Labor Relations Board" 409 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speech and, upon request of said representatives, per- mit one of them to address the employees for the same amount of time as Respondent's address. (j) If, within the next 2 years, the Board schedules an election in which the Union participates at any of Respondent's plants, then, upon request by the Union, afford at least two union representatives rea- sonable access to each of Respondent's said plants and appropriate facilities to deliver a 30-minute speech to employees on working time. the date thereof to be within 10 working days before but not within 48 hours prior to any such election. (k) Upon request of the Union, immediately fur- nish it with lists of the names, addresses, and classifi- cations of all of Respondent's employees at each of its plants as of the latest available payroll date, and fur- nish a corrected, current list to the Union at the end of each 6 months thereafter during the 2-year period referred to above. (1) For the 2-year period, upon request of the Union and without delay, permit a reasonable num- ber of union representatives access for reasonable pe- riods of time to all its canteens and rest and other nonwork areas, including parking lots, within each of its plants, for the purpose of communicating orally and in writing with the employees in such areas dur- ing changes of shift, breaks, mealtimes, or other non- work periods. Respondent shall formulate rules on this subject in the same manner as provided in J. P. Stevens & Co., Inc., 239 NLRB 738 (1978). (m) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election conducted in Case I 1-RC 3987 on February 19, 1975, be. and it hereby is, set aside, and that the petition be dismissed. IT IS FURTHER ORDERED that the allegations of un- lawful conduct not specifically found to be violative herein shall be dismissed. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties were represented, by their attorneys and afforded the opportunity to present evidence in support of their respective posi- tions, it has been found that we have violated the National Labor Relations Act in certain respects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a represent- ative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. Accordingly, we give you these assurances: The Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, is the recog- nized collective-bargaining representative of our hourly employees at Wallace, North Caro- lina. WE WILL NOT refuse to bargain in good faith for a collective-bargaining agreement with the aforesaid Union regarding wages, hours, and working conditions of the employees at Wallace, North Carolina, nor will we take action affecting wages, hours, and working conditions of such employees without negotiating first with the Union. WE WILL NOT preclude our employees by posted rule, or oral instruction, from engaging in the distribution of union literature in nonwork- ing areas on their time. WE WII.L NOT prevent employees from distrib- uting union literature on their own time, by physical obstruction. by threatening to call or calling law enforcement authorities, or by telling them that they are suspended. WEI WILL NOI engage in surveillance of em- ployees, nor will we create the impression that we are spying on employees while they are en- gaged in union activity. WE WII.L NOI tell our employees to report on union activities engaged in by fellow employees. WE WI.L NOi tell our employees how they can invalidate union authorization cards when they are called as witnesses in a Board proceeding. WE WILL NOT threaten to discharge employees because of their union activity. WE WII.I. NOT grant benefits to employees to discourage them engaging in activities in support of a union. However, nothing herein shall be construed as requiring us to vary or abandon any economic benefit or term and condition of em- ployment which our employees at our Wallace facilities, or any other facilities, would otherwise be entitled to receive. Benefits will not be denied to employees at our Wallace facilities, or at any other of our facilities, that such employees would have received but for their support of a union or for their involvement in protected concerted ac- tivities. 410 J. P. SI EVENS & CO., INC. Wi WIl.t. NOI in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights under the National Labor Relations Act. WE Witl compensate the Union and the Board for their expenses in preparing for and in conducting this case, and we will compensate the Union for its expenses incurred during the or- ganizational campaign at Wallace between Sep- tember 1974 and February 19, 1975. Wt wi.i., upon request, bargain with the aforesaid Union, as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached. embody such un- derstanding in a signed agreement. The bargain- ing unit is: All production and maintenance employees employed at the Employer's Carter plant. Hol- ly plant, and warehouses at Wallace. North Carolina. including plant clerical employees. watchmen, computer programmer in the dye house, electrical technician. and plant driver: excluding office clerical employees. protfes- sional employees, cloth store clerk, managerial employees, guards and supervisors as defined in the Act. WE WILL send to all our employees copies of this notice, with an explanatory letter: wxv wl. read this notice to all our employees: WE WILL give all our supervisors at our Wallace, North Carolina, facilities copies of this notice and in- struct them to comply with its provisions; and WE WII. grant the Union, as ordered, access to our bulletin boards, access to our nonwork areas. speaking opportunities, and lists of the names and addresses of our employees at many of our plants. J. P. SEVENS & Co., IN('. APPENDIX B Dear Stevens Employee: This letter, and the enclosed notice. is being sent to all J. P. Stevens employees to inform you of a recent decision by the National Labor Relations Board* relating to the Ste- vens plants in Wallace, North Carolina. In 1974 and 1975. the Textile Workers Union of Amer- ica. AFL CIO. now the Amalgamated Clothing and Textile Workers Union, AFL CIO CLC, was engaged in an at- tempt to organize the Company's employees at the Carter and the Holly plants in Wallace. After a hearing, the Labor Board found that the Company violated the law by interfer- ing with employee distribution of literature. by spying on 'Should the Board's order he enforced, add here: ". approved hy a United States Court of Appeals.". employees while they were engaged in union activities, and bv threatening employees with discharge because of their union activities. The Labor Board also found that the Com- pany violated the law by changing the profit-sharing plan and by granting supplementary unemployment benefits. In addition. the Board found that the Compan3 violated the law by telling the employees how they could invalidate union authorization cards when they were called as wit- nesses in a Board proceeding. The Board held that these and other violations of the law by the Company at the Wal- lace plants made the union authorization cards signed h employees at the Wallace plants a more reliable indication of employee choice as to whether theN wanted the nion to represent them than the results of the Februar% 19. 1975 election. The Board found that a clear malorit t' the em- ployees signed union authorization cards indicating that theN wanted the Union to represent them. Accordingly. the Labor Board directed the Company to bargain with the Union as the exclusive representative of the employees and if' an agreement is reached to sign a contract cocvering the agreed upon terms. As you can see from the attached notice, the ('ompanN has promised that. in the future we will compl1 in good faith with the labor laws. Also, the (ompany has promised to compensate the tInion and the Government t'r their losses arising out o the iolations found. herelore. a- lhiing that ou hve heard which indicate that the ('onlpa n, does not intend to comply in good faith and fulls abide hb the nation's labor la ws. at any of its plant. is comlpletely erroneous. SIN( I RI Y Y () RS. PI ANI MANIA(IiR D)ECISION SI A I tN ()I I II Ci s ( tsL Joll A. It xRs Xlz. Administrative Law Judge: This con- solidated proceeding originates with the filing of an election petition in ('ase II RC 3987 on December 17. 1974. Thereafter, pursuant to a ecision and Direction o)f Flec- tion issued by the Regional Director for Region I on Janu- ary 20, 1975. a secret-hallot election was conducted on Feb- ruary 19. 1975. The tally of ballots shows that of approximately 1,014 eligible voters. I ballot was void. 404 cast ballots for, and 540 against. the Petitioner. with 3 non- determinative challenges. Thereafter. the Petitioner filed timely objections to conduct affecting the results of the elec- tion. Subsequently. on March 10, 1975. the Acting Regional Director for Region II. issued a Supplemental [)ecision. Direction and Notice of Hearing concluding that Petition- er's objections raised material and substantial issues best resolved on the basis of record testimony and accordingly he directed a hearing on Objections I through 9. On April 14, 1975 an unfair labor practice charge was filed in Case II CA 61)77. Pursuant thereto, on January 20. 1977. the Regional I)irector for Region II issued an Order consolidating cases, complaint, and notice of hearing. alleg- ing that Respondent independently violated Section 8(a)( I of the Act by various acts of' coercion impeding employees in exercising their right to organize and support the Charg- 411 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD ing Party-Petitioner, and further alleging that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Charging Party-Petitioner as the majority representative of employees in the appropri- ate unit. In this latter respect, the complaint alleges that the independent violations of Section 8(a)(1) of the Act were calculated to undermine the Union and destroy its majority status, the predicate for a remedial bargaining order under authority of N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), and Trading Port, Inc., 219 NLRB 298 (1975). By virtue of said consolidated complaint, Cases I -RC-3987 and Il CA-6077 were consolidated for hearing, ruling, and decision by an administrative law judge. In its duly filed answer to said complaint, Respondent denied that any un- fair labor practices were committed. Pursuant to the foregoing, a hearing was conducted be- fore me in Wilmington, North Carolina, on various dates between May 16 and August 3, 1977. After close of the hearing, briefs were filed on behalf of the General Counsel. the Charging Party-Petitioner. and the Respondent-Em- ployer. Upon the entire record in this proceeding, including my personal observation of the Witnesses while testifying and their demeanor and consideration of the post-hearing briefs, I hereby find as follows: FINDINGS OF FA(CI 1. THE BUSINESS ()F IHE RESPONI)E N-EMIP OYIYFR Respondent-Employer is a Delaware corporation en- gaged in the manufacture and sale of textile products at its Wallace, North Carolina, plants, the sole facilities involved in this proceeding. During the 12-month period preceding issuance of the complaint, a representative period, Respon- dent-Employer received goods and materials at said loca- tions from points directly outside the State of North Caro- lina valued in excess of $50,000, and also manufactured at said plants and shipped directly to points outside the State of North Carolina. products valued in excess of $50.000. 11. IE STATUS OF ITHE CHARGING PARTY-Pl TI'IONER The Merger Issue Respondent-Employer admits that the Amalgamated Clothing & Textile Workers Union, AFL CIO CLC, and the Textile Workers Union of North America, AFL CIO (TWUA), are labor organizations within the meaning of Section 2(5) of the Act, but denies that the former is a successor to TWUA. Through this denial, Respondent-Em- ployer interposes a defense of critical import to the effective redress of any unlawful conduct found herein. In this connection, it is noted that the instant case emerges from an organization campaign waged by the TWUA between September 1974 and February 19. 1975. Following the conclusion of this effort, on June 2, 1976, TWUA merged with the Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, the Charging Party-Peti- tioner herein. As I understand Respondent's position, it is claimed that, as no lawfully cognizable successorshop ex- ists, the Charging Party-Petitioner may not avail itself of any remedial interest which might have accrued to TWUA in consequence of that campaign. In A merican Enka Corpanv, 231 NLRB 1335 (1977),' the Board, after full examination of the nature of the merger and the circumstances under which it was effected, con- cluded that, as the consolidation preserved the continuity of the TWUA, which continued to serve as the day-to-day representative of employees, the Charging Party-Petitioner "is a continuation of... [TWUA] . .. and therefore has succeeded to its representation rights."2 That case involved an election conducted some 6 months before the effective date of the merger. In that election, the TWUA was desig- nated by a majority. In the course of a post-election pro- ceeding concerning employer objections to the validity of that election, the successorship issue was raised by a motion to change the name of TWUA to that of the Charging Party-Petitioner herein. In sustaining that motion, the Board not only confirmed the existence of a binding succes- sorship. but went on to conclude that the representation rights accorded thereby to the Charging Party-Petitioner would not be impaired even though employees previously subject to an organization campaign neither participated in the merger decision, nor ratified it.' Unlike the employees at American 'nka, xupra, the Wal- lace employees were never informed of the contemplated merger,4 nor were they invited, after the merger, to express their views in this regard. Nonetheless, the testimony of Scott Hoyman, the south- ern director of the Textile Division of the Charging Party- Petitioner,' dispells any notion that, under established union policies, the noninvolvement of Wallace employees was founded upon arbitrary considerations. He testified that in accordance with union practices execution of a blue authorization card in the course of an election campaign does not accord the rights and benefits of full union mem- bership. Employees are only admitted to membership after a chartered local is established, an event normally deferred until after execution of a collective-bargaining agreement.' Consistent with the foregoing. employees who signed au- thorization cards during the Wallace campaign were not notified of the possible merger, did not participate in the I See also the decision of Administrative l.avw Judge Bernard Ries, issued on December 21. 1977. relative Respondent's Roanoke Rapids plant J P. Stevens & (Co., Inc., 239 NLRB 738 (1977). 1231 NLRB at 1337. The Board did acknowledge facts showing that prior to the election in that case, the employees were apprised that the merger was under consider- ation. Furthermore, it was also noted that. following the election. a union meeting was conducted in which employees unanimously expressed their assent thereto. ' The merger discussions began in 1975. hut apparently did not open until after conclusion of the election of February 19, 1975. at the Wallace facili- ties. ' Prior to effective date of the merger. Hoyman occupied essentially the same position with TWUA. I The only exception to this constitutional requirement relates to chartered locals established at J. P. Stevens plants in Roanoke Rapids, North Carolina. and Statesboro. Georgia. In both instances. TWUA had achieved the status as statutory representative of employees at those locations, and due to lengthy negotiations and pending unfair labor practices against the Com- pany, special resolutions were adopted by the Union's 1976 convention. au- thorizing the issuance of charters establishing locals at said facilities. 412 J. P. STEVENS & CO. INC. decision. and were not aflorded an opportunilt to express their sentiment thereafter. Such variation rom the facts considered in ,mtn,'rican EnAI merits no different result. Thus, in accordance with the Board's holding in Amcricin EnAa. the structure of the TWLJA was retained after the consolidation. and the merger did not affect the identit of either union representatives or the organizational structure within which they served as the representative of employ- ees. For this reason. the Board held that the legal efficacy of the successorship was unhampered by the question of whether employees, who were subject to an active organiza- tion campaign at the time of the merger's approval. partici- pated in or were offered an opportunity to ratify. Extension of this view to the instant proceeding simply endorses a constitutional denial of membership benefits to nonmem- bers whose affinity to TWUA was inchoate and evidenced solely by designation of that union as their representative in the course of an organization campaign. The internal union policy in this respect. while consistent with legitimate sub- stantive and administrative interests of the Union. in the circumstances, does not impede employee free choice and is inoffensive to statutory policies. Accordingly, I conclude that the Charging Party-Peti- tioner constitutes a continuation of TWUA, and that it suc- ceeds to the organizational interests of TWUA, which were pending on the effective date of the merger, including all representation rights emerging from the 1974 75 organiza- tional campaign conducted at Wallace. which are in issue in this proceeding. li. CASE t-CA-6077 A. The Issues This consolidated proceeding presents another phase in the ongoing litigation involving labor relations practices of J.P. Stevens & Co., the multistate textile manufacturer du- biously described by at least one authority as having "earned the . . . reputation as the 'most notorious recidivist' in the field of labor law."' Involved here are the Stevens facilities in Wallace, North Carolina-the Carter plant. the smaller Holly plant. and the Uptown warehouse. The prin- cipal issues relate to the time frame-September 1974 through February 19, 1975-dates which mark the duration of the third separate effort to organize the Stevens work force in the Wallace area. As heretofore indicated, on February 19. 1975, an elec- tion was conducted among said employees in which the Union failed to receive a majority of the valid ballots cast. This proceeding is concerned essentially with the question of whether, in the foreground of that election. Stevens en- gaged in preelection misconduct and independent unfair la- bor practices of sufficient consequence to dissipate the ma- jority allegedly held by the Union on that date and to warrant a remedy requiring Respondent to recognize the Union as he majority representative of employees at the Wallace locations in accordance with N.L.R.B. v. Gissel Manufacturing Company', supra. ' See N.L.R B v. J. P. Stevens & Co.. Inc., el al (Stevens XVIllL 563 F.2d 8 (2d Cir. 1977). With respect to the refusal to bargain issue. in addition to the formidable question as to whether the Union eer achieved majority support. the appropriateness of an 8(a(5) remedy in this case turns essentially upon indepen- dent 8(a)( I allegations relative to: ( I ) the interference with employee distribution of union literature within the plant proper during shift changes commencing on the evening of February 18 and through the day of the election. February 19. 1975: (2) the announcement and implementation on January 21. 1975 of a "floor" or guarantee against declining values of employee holdings under the Stevens profit-shar- ing plan, and (3) the grant of a supplementary unemploy- ment benefit payment to certain employees announced on February 11. 1975. In addition to these issues, unfair labor practices are at- tributed to the Respondent-Employ er through coercive statements bh named supervisors on three different occa- sions. Finally. while Petitioner's objections for the most part are coextensive with the 8(a)(1) allegations. other alleged misconduct not specified in the complaint is involved. in- cluding questions as to whether the employer unlawfully interfered with the Union's utilization of designated observ- ers during the election, and whether the Employer impaired the Petitioner's exercise of rights granted by the United States Court of Appeals for the Second Circuit in a con- tempt adjudication, issued on September 13, 1972. B. Concluding Findingis I. Interference. restraint. and coercion a. Inl'er/'rccc with employee distribution The Holly and Carter plants operate on a three-shift ba- sis, with shift change intervals at 12 midnight, 8 a.m.. and 4 p.m. Prior to February 18. 1975. the Union's effort to com- municate with employees through distribution of campaign literature was confined to handbilling at access gates on the perimeter of Respondent's premises and off company prop- erty. On February 18. 1974. the day before the election, the Union elected to engage in on-premises distribution through employee organizers. Beginning at about 11:30 p.m.. shortly before the midnight shift change. on February 18, and continuing until 4 p.m. on February 19, employees attempted to pass out union literature inside the Carter and Holly plants.' Management first learned of the Union's shift in strategy shortly before commencement of the third shift on Febru- ary 18. 1975. when, about 11:30 p.m.. employee organizers first appeared with union literature in areas adjacent to en- trances on the interior of both the Holly and Carter plants. The complaint names eight different supervisors as hav- ing participated in the unlawful effort to frustrate this at- tempt by employees to exercise their Section 7 rights. It is further alleged that, in the course of said interference, cer- ' The notice of election reveals that polling was scheduled at the Carter plant on February 19, 1975. during Ihe following periods: 6 a.m. to 10 a.m.: 4:30 p.m. to p.m. Similarly. polling was conducted a the Holly plant. during the following time frames: 7:30 a m. to 9 a.m.: 4:30 p.m. to 5 p.m. 413 ) ('ISI()NS )t NA I (NAL AiBOR RIlA I IONS )ARI) tlain of tlhese stpersior indclpendlenll5 itlalted Section 8(a;)() of tile Act h thrleatenling ,ellplolccs tlt layi ein- torcctlcent ;uthoritics woul he calld o closc tlhell tro1 thle pmises, b hN ordlering crlail cllllocs to lc eC the plant hecause Ihelv engiaged in such acti its. h IlhrCatenlinr to hatve cmplo ces phlsic;lily relnloved froml the pliant land hy enggiing in surveillance oC emiploees while thes at- tempted to distrihbute union literature. Wiilh respect to the Ilollv plalnt temploects I lnd; Teachel a nd Betty Whilliet , both assigned to the third shift, commenced distributing literature at the emploece en- trance to that facilits at ahout I 1:15 p.m. on :ebruar! 18. :ilmplo q ces on enltering that access, first tra, erse a set of stairs to a level 4 to 5 feet abose the groundi aInd enter the plalnt through a glass aind metal door. O()n the interior of the entralcewa is a vast open area which t one time was used for storage. Walking lanes for employees are marked off as a saetly innovation, which isolates their passageay rorn an area in which forklifts operate some 3 times a day to load trucks parked at the nearhb loading docks. It was in this area immediately inside the door, that eachey and Whitfield were distributing literature when approached by Bennett lanchey, an admitted supervisor. Halnchey testi- fied that he observed them distributing union literalture. which he assumed to he prounion. and that he noticed a box of union buttons on a nearby table. tie claims that lie told the employees "that they were not supposed to he there, and it was too early for them to be at work," all urged them to "please go back to your car . . . or go on to the commissary, or work area and wait until it was time to go to work .' When the employees stood fast. Ilanches ad- mittedly told them that if they refused to leale, e would call his superior to determine what would be done next."' The employees refused to leave so Hanchey left to seek instructions. Hanchey testified that when he returned to the entrance Whitfield and Teachey were no longer present. Teachey did not testify. The testimony of Hanchey and Betty Whitfield is in conflict only insofar as she testified that Hanchey initially told them that they "couldn't pass out leaflets. that we'd have to move, and if we didn't move, he'd have someone to move us." When Whitfield advised Hanchey of the employees' right to pass out leaflets at that location. Hanchey repeated "if you don't move, I'll get someone who will move you." After this, Whitfield and Teachey engaged in no more distribution, but simply left the union literature behind, and went to their work stations. Later. still prior to the commencement of the third shift. Bernice Jenkins a first shift employee, appeared at the loca- tion vacated by Whitfield and Teachey and resumed the distribution of literature. When Hanchey returned. accord- t Hanchey admitted thai it was not uncommon lor employees to appear inside the plant prior to their work shit'. and that there was nm) prohibition against employees being on the premises at such time. O tHanchey testified that he called his superior Vaden Scholar, who ad- vised that he call Jim Weltons the planl manager. Wellons instructed Hanchey to get a witness and return to the entrance to inform the empthyoees that they were at the plant loo early. and should go o the parking lot. commissary or work area until their shitll began llanchey claims thai Wel- Ions instructed him to ack off and lake no further action. if the women refused to remove themselves. iii I(o his lestillmtlln). he reiterated to .Jenkins the mllessage pe\ iusl\ co)II C\scd to IllCChe I and Whitield. Jelkill tles- lilied tt laclics told hini) lto eave the ,tieal. a;Id Itirther related tt lie responded t Ilanlche b\t relclrrinig li to tile lac that tle ederal (iernmnr t gave eployvees a righl to engage in union aclvit and to distrihulc literature in n1ll workilig al-eas, o torili 'rkine timle. I lanches tlhen indicated that Ie h;adl been "ilnstucted to tell ou ... it ou doIn' le ,e. I'it going to call somebhody ad hla\e ou re- nitovd." 'Wil thills. Jenkins stepped outl the door and con- tinuedl to distribute union literature on Ihe adjoinin g pl;tt- tornm withuout turthler disruption. I credit the testitloni of Whittield and Jenkinls t the etlect that l lanhey aftter the employees indlicatedl a disin- clin;ition to adtliere to hi instruction to leave the planit inte- rior. threatened to hiae thenl remo,ed. Ihe testimonI, of' Whitfield anld enkins imputes a; consistent pattern of con- duct to lancheN, and in the circumllstances it struck me as probable that he took the forcelul approach to which the employees attest. It is ntced in this connection that, as of the time of the hearing. Bernice Jenkiris wa;s an incumbent employee of' the Respondent. Hlandbilling began inside the (Carter plant at or about the same time as the Holly facility. Access to the larger (Carter plant is availlble through two entrances. the malin enltrance and the so-called north entrance. 1ach entrance has an air- lock which separates the exterior doors from the interior doors leading into the planit proper. At the more frequently used m ain entrance, the airlock is approxinmately 6 leet by 10 fteet in diniension. The north entrance contains a smtaller airlock which measures 3 feet b 5 eetl. William A. Stallings a supervisor on the second shift at the (arter plaint testified that about 1:45 p.m. on F-ebru- ary 18. 1975. he wias intored that employees were distrib- uting union literature at the north entrance to the Carter plant. logether with supervisor Robert Piercy. Stallings went to that location. where two employees Billy Hum- phrey and Robert (ilasper were distributing union litera- ture. According to) Stallings, Piercy inormed the employees that it was against company rules to pass out union litera- ture inside the plant and that they were to leave the build- ing. The employees indicated that they would not do so. advising that a union official had informed them of their right to distribute literature inside the plant. Stallings ad- mits that when the employees indicated that they would not leave. Piercy indicated that he would call the law. Hum- phrey then left. and Glasper went outside the door. where he continued to pass out leaflets. Stallings admits that he remained at the airlock, watching Glasper pass out leaflets for some 3 or 4 minutes thereafter. Stallings and Piercy then went to the main entrance where 4 or 5 employees were passing out literature in the airlock at that location. The employees were informed that they would have to go outside, and when they refused to leave. Piercs again threatened "to call the law." Later, Su- pervisor Larry Keir admittedly received a report that Plant Manager Shelton had issued an instruction that employees engaged in handbilling be sent home arid told that they should not return to the plant until notified. Pursuant thereto. Supervisor Larry Keir told third-shift employees 414 . P Si FVIINS & (().. IN(. 1)1ald Rbmhison md 1 I atr (;1lspTr Ito ea.e 11ie plaini ;1and cL Ilitte.'I ()i t1e d-Li of te cleCtoh . thie eorl t Io reach 11emploees through l-plnt llstllbitlion1 rlumed at tile (;lrter plantl aibout ole-hlll hour belore te oniinnceeilllt of' the first hiftl. I ihus abouil 7:31) am.. enllployees Violet -utrell Ilatcher. Malie I ir', andl (;Ioria Kenned,, were passilng out union literature in te airlock. Stipersisor Robert ('rian- fbrd. in the company of' supervisors Kier and Shuffler. re- cei,ed infirnllaton to this effecl and proceeded to the main entlr;nce., here accordng to ('ranford's own testimony. he informed the emplosees "that they could not pass out lit- eratture in the plant and that they would have to leave.'' The three employees left the airlock and went to the pae- nient elos. ('ranford followed. I i'lrell advised Crailnford that he would not have to escort them, for thev knew the way to the gate." Ihe largest and most dramatic of the confrontaliions be- tween supervisors and employee organizers occurred be- tween 3 and 4 p.m. on the day of the election at the main entrance to the C(arter plant. Prior to this encounter, (ran- ford together with Supervisor Hazel Kirkland confronted employee Doug Ray. who w;as handbilling at the north en- trance. After ('ranfitrd told Ray that "he could not pass out literature in the plant," Ray departed. ('ranibrd and Kirk- land then went to the main entrance. When they arrived it does not appear that any employees were in the airlock. but they were on the front steps. Later. Supervisors Osbert FIus- sell, William A. Stallings. Davis A. Chestnutt. and Henry 1.atimore joined Cranford and Kirkland outside the door to the main entrance. On several occasions during this con- frontation. certain employee organizers manifested their in- tention to enter the airlock to distribute literature. The su- pervisors formed a cordon, physically obstructing their access, with Cranford informing the employees that they could not give out literature inside the plant. The employ- ees insisted that they had a right to distribute literature inside the plant, and, as the argument continued. Cranford admittedly told the employees that he would call the law i' they did not leave. Supervisor Kirkland actually left the area to call the police.'' Cranford admits that prior to this H Neither Rohinson nor Glasper lost any lime as a result of this instruc- lion. Both indicated that after consulting with union officials at the gale. they reported for work as usual. Kier during their shift apparently counter- manded the earlier suspension of these employees. it Although Cranford testified that it was twoi employees who were en- gaged in handbilling on that occasion. from the testimony of Hatcher. Ken- nedy. and Eury. I find that all three were present. it Cranford's testimony that he went outdoors on that occasion to check to see if it was raining did not have a ring of truth. ' (Cranford claims that he felt threatened and took steps to call the law only because the situation had reached explosive proporlions. I was not convinced. His testimony that he was pushed in the course of that incident by Jimmy Smith was not referred to initially when (ranford was specifically questioned as to the various aspects of the confrontation that led to the so- called explosive condition. While his subsequent lesilmony in this respect seemed exaggerated and contrived, it was my impression from all the sur- rounding circumstances. that any temperament that may have been exhib- ited that day was provoked by the actioin of Respondent's supervisors in physically obhstructing employees from vindicating their right toi engage in distribution of union literature during their own lime. in nunworking areas inside the plant proper. Accordingl) (ranfiord's threat to enlist the aid of law enforcement authorities in furtherance of the Compan?'s unlawful posli tion constituted a lurther interference with statutory rights. incident. superision was instrutetld to orhbid eir\ to the plant to cnpllllh ces seekin to distrilhutC Iltlature. lie lso adtnits that lihe remained on t porch OWtdC the l airlock lor a period of 3() minutes. of which the con111rontaltlon ith elilploees attelptilng to enter the plant laslted sone 5 to It) minutes. )urilng this perio union s inpathizers attempted to handhill other cemploees entering and easing the main entrance. 'The loregoing sustalitiates. in their enitirets, the .arlous allegaltlons n the complaint pertaining to the interlfrence with access to plant premises ifr the purposes of distrihut- ing union literature. I he reaction, t'ro m the utset, Ol the part of supervisors ';ias sif't and plainllx consisten with the directive. attested to hb Respondent's ow&n ;agents, on the part of Plant Manager Shelton. that supcrvisors preclude emploee distribution within the confines of the plant. Ihat nrstruction did not distinguish bet c leen workling arels and nonworking areas and constituted an unequivocal restraint. In an eent. there is no atlirmative. prohative cXldnce that the airlocks in the Carter plant were either working areas. or areas in which distribution could not have taken place without impairment of reasonable ingress and egress bh employees and others utilizing the plant entrances. With respect to the Holls plant. the mere act that the north entrance was adjacent to dock areas hich ahout three times a day were utilized bhs lift trucks also tails to ustil Respondent's absolute bar to empploee distribution at that location. 'ew statutory policies are of longer standinlg and hroader acceptance than the principle that Section 7 of' the Act pro- tects the right of emploee organizers to distribute literature on their own time in nowr orking areas on plant premises. It need not be gainsaid that interference ith such actis ity "must be presumed to be an unreasonable impediment to self organization and therefore discriminator, in the ab- sence of evidence that special circumstances make the rule necessary in order to maintain production or discipline." See Perion Pacing (Co.. ,In.. 49 NIRB 828, 843 844 (1943): Republic A vidlion (Corp. v. . L. R. B. 324 U.S. 793. 803 804 (1963) and Sllddard-QuirAl .MIlanu/lc ring Co.. 138 NI.RB 615 (1962). Respondent's position is unaided by any proof suggesting that the arious incursions on em- ployee rights which are outlined abhoe were justified by such special circumstances. Indeed. Respondent, in its briefl: does not seriously dispute that violations occurred in this regard. but appears to seek comfort through an effort to mitigate the seriousness of these violations. as an isolated reaction on the part of' a management surprised at the Union's shift in its preestablished policy of disseminating information outside the plant gates. It is difficult to imagine that local management in Wallace at the terminal stages of the third union campaign and while living under the sanc- tions of a contempt orderl" acted spontaneously and with- out consultation with advisors thoroughly conversant with ' Supervisor Hanchey conceded that the possibhle use of the leading dock had nothing to do with his reasons for stopping the employees 'from distrib- uting union literature at that hloation 16 h'L. RB J. P Sievrens (Co.. 464 F.2d 132t t2d (lr. 1972) 415 )IF('ISIONS () NA'I'IONA. LABOR RATIONS BOARDK the str-icturcs inmposed b law. before comipleting this broad- scaled assault on cmplloyee rights.'' In conclusion. I find that Respondent violated Section 8(a)( I of' the Act by precluding employees rt'om distribut- ing union literature on their own time. inside the employee entrance of' the lloll. and within the airlocks of the main and north entrances at the Carter plant. I further find that Respondent violated Section 8(a)( I ) of the Act in furthering its policy agiinst such employee access, by the conduct of supervisors in physically blocking the main entrance at the Holly plant during the period prior to the start of the sec- ond shift on the day of the election. by threatening to call the law i employees did not remove themselves from the plant, b threatening to have employees physically re- moved, and by instructing employees who were distributing literature to go home, rather than report on their scheduled shift. It is also clear that after employees were either removed or precluded from entering the plant proper, supervisors continued to observe them distributing literature outside the Holly and Carter plant entrances. The continued pres- ence of supervisors on those occasions would have an inhib- iting effect on employees who were the object of such distri- bution, and there being no legitimate justification for the presence of the supervisors, this surveillance constituted a further violation of Section 8(a)( 1 ) of the Act. b. (;rantl ohbentfiis (I) The profit-sharing "floor" Since 1965 Respondent-Employer maintained a profit- sharing plan covering hourly employees on a companywide basis. It was financed by employer contributions computed on the basis of a formula which imposed no obligation until annual earnings exceeded a percentage of stockholders eq- uity. Thereafter. 10 percent of all, after tax, profits were contributed. Separate accounts were maintained for each employee participant. The principal and earnings were held under a trust arrangement with the Morgan Guarantee Bank, the trustee, which invested the funds in stocks and bonds. Respondent, at times material herein, operated on a fiscal year basis ending October 30. Employees, however, were not notified as to the status of their individual accounts until the following spring.' During the recession of 1973-74. the stock held in trust for the benefit of the participants sustained a serious decline in value. The plan as originally conceived contained no guarantee against losses, which therefore were to be borne by employees. Consequently, in April 1974, the profit-shar- ing report distributed to employees reflected a decline in their individual holdings. 7 In J P. Stevens & Co., Inc.. Gullistan Division (Stevens VII). 179 NL.RB 254 (1969) Respondent was specifically ordered to cease and desist from: "Promulgating, maintaining, or enforcing any rule prohibiting employees during their nonworking time from distributing union literature or discussing union activities in nonworking areas on company property." 1i These reports reflected the values held as of the preceding December 31. Prior to the commencement of the instant organizational drive in September 1974. it does not appear that Respon- dent's highest management was alarmed by the revelation that profit-sharing benefits were subject to dilution through stock market fluctuations and no steps were taken to elimi- nate this risk. Yet, on January 21, 1975, just 4 weeks prior to the Wallace election, the C('ompany formally notified em- ployees in all of its plants that a guarantee against profit- sharing losses would be implemented. The guarantee was to be financed out of' general corporate funds, and assured participants that they would receive at least the full amount of company contributions and forfeitures credited to their account as of [)ecember 31, 1974. The complaint alleges that imposition of this guarantee violated Section 8(a)( 1) of the Act. Respondent asserts that this new protective factor against losses in the profit-sharing plan was not influenced by the union campaign at Wallace, but based on Respondent's need to "keep our head above water" in the competitive textile labor market, a concern reaching all 38,000 of Respondent's employees. Hastings Foster. a former general counsel of the Respon- dent. was the principal architect of this revision in the profit-sharing plan and the key witness affording testimony as to the genesis of this new profit-sharing innovation. Fos- ter testified that when the profit-sharing plan was adopted by Respondent in November 1964, it had been modeled after a plan utilized by Burlington Industries. After partici- pating in drafting the initial plan. Foster served continu- ously both on the profit-sharing committee, which held op- erating responsibility for the administration of the plan. as well as the investment committee of the Board of Directors of J. P. Stevens, which oversaw the manner in which funds were invested. On September 19. 1974, Burlington Industries announced a revision to its profit-sharing plan, also inspired by the decline in the value of investments during the recent reces- sion. That revision was a two-pronged attack on share loss depreciation attributable to market fluctuations. Thus, Bur- lington announced that effective January i. 1975, the prin- cipal of each participant's account would be guaranteed against losses, and in addition appreciation of the principal held would be guaranteed by an interest factor correspond- ing to that paid on passbook savings accounts. Foster concedes that prior to the Burlington announce- ment, officials of the Respondent in the industrial relations area had been after Respondent's headquarters to effect changes in the profit-sharing plan "which at least protected the amount that had been paid in for the respective individ- ual accounts." However, it is the sense of his testimony, that these internal rumblings caused no stir until after Bur- lington revised its plan. According to Foster, after reading newspaper releases on the Burlington revision, he contacted Burlington seeking more detailed information concerning the modification. Foster went on to relate that by memo dated October 4, 1974. he reported to J.D. Finley, Chairman of the Board of J. P. Stevens & Company that he would work with actuar- ies to obtain estimates of what a similar change would cost. Later, Foster was directed by higher management to work with the corporate comptroller to study the cost impact on Stevens of the Burlington revision, and also to make a cost 416 J. P. STEVENS & CO., INC. study in connection with a possible substitution of pension plan for the existing profit-sharing plan. In the meantime, Foster learned that another competitor of Respondent had taken measures to protect employees against impaired benefits in its profit-sharing plan. Thus, on November 21. 1974. Spring Mills announced that it would save whole employees eligible for benefits in 1974 either through retirement, disability, economic termination, or death, by a payment to offset the decline in value of their individual shares during 1973. The Springs arrangement was a one-shot revision, imposing no guaranteed floor on shareholdings in future years, but was adopted solely to offset the impact of 1973 losses, upon those eligible for benefits during 1974.9 With respect to the time table on implementation of the J. P. Stevens guarantee, Foster testified that preliminary cost figures were not available until late December 1974. Foster also testified, however, that it was not until January 17, 1975, when the cost background for establishment of a pension plan were available. Thus, Foster claimed that all cost data on all possible alternatives were unavailable until that date, and that a meeting was conducted on that issue with high level company executives at that time. The three alternatives considered at that time were: (I) The Burling- ton guarantee which coupled protection against losses with a guaranteed appreciation factor, or (2) a floor against losses without a continuing guarantee of interest, or (3) a pension plan. At this meeting, the decision was made to adopt a floor against losses, with no interest guarantee. The pension plan concept was rejected as "staggeringly expen- sive." The guaranteed interest concept was rejected as too inflexible since such a step could be taken in the future, but once done it could never be rescinded. Foster was then in- structed to prepare an announcement of the results of this meeting. In conjunction with J. W. Jelks. the corporate di- rector of industrial relations. 0 a notice to employees was prepared, and posted at each of Respondent's facilities on January 21, 1975. The notice defined the change as afford- ing employees who become eligible for benefits on or after January I, 1975 "no less than": The full amount of all company contributions made to his account from the beginning of the plan in 1965 through 1974. Also the full amount of all forfeitures credit to his ac- count in those years. In accordance with settled authority, the announcement of new benefits during an organization campaign is pre- sumptively violative of Section 8(a)( I) as a manifestation of economic strength calculated to influence employees in their choice of a bargaining representative. The legitimacy of such action may only be established upon a showing by the employer that said announcement was justified by con- siderations other than a pending election." 19See Resp. Exh. 27(b) 20J. W. Jelks admittedly was involved in the union campaign at Wallace. 21 See. e.g.. Essex Inrernational. Inc. 216 NLRB 575. 576 (1i975): Arrow Elastic Corporation. 230 NLRB 110 (1977): Dravo Lime Compans. 234 NLRB 213 (1978). The effort by the defense to disassociate announcement of this new benefit from the pending campaign in Wallace was thoroughly unpersuasive. The decision to grant the new benefit was made on Friday, January 17. 1975, and was announced to all employees at substantially all plants on Tuesday. January 21. Hastings Foster admittedly was re- sponsible for familiarity with time tables of significant pro- cedures before the National l.;abor Relations Board in con- nection with organization eflorts at Respondent's plants. The decision and announcement of the profit-sharing guar- antee occurred therefore with knowledge that a petition filed on December 17, 1974. was then pending at Wallace, and that a preelection hearing had been held on .Janular 9. 1975 based thereon.Y Thus, it is readily inferrable that Fos- ter was fully mindful, at the time the decision was made, that an election at Wallace was only a few weeks in the ofling. The ery nature of this benefit discounted any ur- gency. which required announcement of the new benefit prior to the election. On the contrary, Foster admits that neither the value to the employees nor cost to the C(ompan would be influenced by the date of announcement since the revision was retroactive to January I, 1975. and no em- ployee would profit therefrom until departing Respondent's employ under the requisite circumstances. I he record bears not the slightest suggestion as to w hN. apart frorm the pend- ing organization campaign, it was necessar to eflfect the announcement of the new benefit prior to the election at the Wallace facility. Also unpersuasive is Respondent's clairm that this presumptively unlawful conduct be excused by the fact that the announcement was companyvwide in scope. The discontent among employees concerning the decline in value of their shares resulted in a fester of Respondent's own making. That condition was condoned for some 5 months prior to any expression of concern on the part of Respondent's ranking executives. Thus. in April 1974 the news as to the shrinking of shares was delivered to employ- ees, and perhaps even before that occasion, industrial rela- tions personnel had raised their concern as to the absence of protective guarantees on the profit-sharing plan. Further. several significant events preceded the Burlington an- nouncement. On August 28, 1974, the Union was designated through a Board-conducted election as the exclusive bargaining repre- sentative for Respondent's employees at its Roanoke Rap- ids, North Carolina, facility. In his testimony here. Foster expressed the belief that the losses in profit-sharing was one of the issues in that campaign. Parenthetically, it is noted that one of the newspaper articles which prompted Foster to initiate exploration of the possibility of protecting protit- sharing accounts, included the following stateent: One of the reasons given by employees for voting in a union recently at the J. P. Stevens plant in Roanoke Rapids was worker dissatisfaction over their dinlin- ished retirement benefits." Spurred by the victory at Roanoke Rapids, the Union commenced organization activity at the Wallace facility in early September 1974. The share loss issue was raised early 22 Note that the Decision and D)ireclion of Election concerning the Wal- lace facilities issued on January 20. 1975. 21 See Resp Exh. 25 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Wallace campaign. A union handbill distributed on October 8. 1974, had the following message: As a Stevens working employee, you've probably suf- fered a big cut in your profit-sharing fund, on which you were counting for your retirement. Did the com- pany give with the one hand ... then take away with the other? It looks that way. Did you know that J. P. Stevens, while cutting and reducing the worker profit-sharing fund ... was at the very same time raising and improving the pension for salaried employees and bosses? Why did J. P. Stevens take away from you and give to the others? Are you getting a raw deal? Yes without a union." The testimony by Foster that it was the Burlington Mills announcement, rather than union activity, which prompted his efforts along this line was highly dubious. His plea that he took the initiative to maintain Stevens "head above wa- ter" in a competitive labor market, while at the same time attempting to create the impression that the threat of or- ganization generally was not a factor was an incredible ven- ture. At the time he considered the Burlington news re- leases, Foster, it is fair to assume, was aware that union activity in Wallace had commenced. In addition, he admit- tedly had received information suggesting that profit-shar- ing losses had contributed to the Union's victory at Roa- noke Rapids. Against this background, Foster's labored attempt to divorce employee discontent arising from profit- sharing losses from union activity, impressed me as incredi- ble. His vague allusions to the need for J. P. Stevens to remain competitive in the labor market was undefined. Considering the commitment of J. P. Stevens to maintain union free operations, as is evident from the cases law nour- ished thereby, it is far more probable that Stevens function- aries equated an adverse labor market posture with the ex- istence of discontent which could be exploited by a labor organization. ontrary to Foster's testimony. I am con- vinced that Respondent acted on January 17 to effectively neutralize employee unrest that had been exploited by the Union in past organizational efforts and the existing one in Wallace, and to further enhance its continuing effort to thwart union activity. The conclusion that Respondent's conduct in this regard is not to be deemed privileged simply because the benefit was conferred on a companywide basis is supported by other grounds as well. This is not a case where the impact of the employer's exercise of economic strength at a single location, immediately subject to organization, is diffused by substantial expenditures or immediate commitment to as- u See Resp. Exh. 2(g). "Certain findings made by Administrative Judge Bernard Ries in the surface bargaining case at Roanoke Rapids, even if not of significance, are nonetheless interesting. See J. P. Stevens & Co., Inc., 239 NLRB 738 (1977). In that Decision, Administrative Law Judge Ries found that on November 8, 1974. "the Union submitted a contract proposal asking that the amounts credited to employee accounts be guaranteed." The Company made no counterproposal pnor to January 21. 1975. sume a fixed liability equally beneficial to employees at a number of locations. The logic which might associate inno- cence with a disproportionately large upgrading of em- ployee benefits generally is simply not present here. As compared with Burlington Industries2 the remedy adopted by J. P. Stevens was of the "bargain basement" variety. Thus, the floor on losses announced by J. P. Stevens on January 21, 1975, imposed only conditional liability. 7 In sum, I find that Respondent failed to disassociate the timing of the decision to implement the profit-sharing floor from the pending organization drive at Wallace. Instead. the entire record warrants the inference affirmatively that Respondent took this step as part of its continuing effort to compete in the textile industry from a stance uncomplicated by union representation of any segment of its employees, a posture once more under threat in January 1975 by the pending election at the Wallace plants. 2 Accordingly, I find that Respondent by announcing and implementing the new floor on the profit-sharing plan on January 21, 1975. at the Wallace plants, only 4 weeks prior to the election at those facilities violated Section 8(a)( 1) of the Act. (2) The unemployment compensation supplement The allegation that Respondent violated Section 8(a)(1) in this respect stems from circumstances related to a change in the North Carolina State Unemployment Law. whereby, effective October I, 1974, unemployment benefits were n- 25 It will be recalled that Burlington Industries, in addition to imposing the floor, committed itself to future payment of the 6 percent interest guarantee. Spring Mills on the other hand, committed itself to the immediate payment offsetting 1973 losses in shares, to those who retired in 1974. The Stevens charge was limited protection f losses to those who became eligible fi)r redemption of benefits after January , 1975. 12 The Stevens floor would only involve expenditures to employees who terminated under conditions specified in the plan at a time when the overall corpus existed at deficit levels. As to those who terminate at a time after such a deficit has been erased by forfeitures or a reversal in stock market perform- ance. this innovation would cost J. P Stevens not a single penny. From assertions appearing in a sworn affidavit by Hastings Foster (see G.C. Exh. 602(b)). it is clear that as matters turned out liability under the floor was limited to 1975 terminations Thus, according, to figures contained in that affidavit, as of December 31. 1974, the deficiency between the amount in participating accounts and the guaranteed floor was $2.534.800. By the end of 1975 this deficit was supplanted by a surplus of $3.503,588. It is entirely possible that actuanes in arriving at cost data with respect to the floor and Stevens officials were mindful, as of January 17, 1975. of trend actors indi- cating an immediate reversal of investment performance. he shift f 6 mil- lion dollars, which exceeded company contributions dunng fiscal 1975 hby a 3-to-I ratio, in the corpus of the profit-sharing plan might well have been sufficiently dramatic to be predictable. As matters turned out, the actual liability sustained by the Company under the guarantee totaled $170.000 and was limited to those who retired during the caleadary year 1975. 2" Respondent makes much of the fact that on or about January 28, 1975. the Union distributed a handbill at Wallace describing the new floor as the product of collective-bargaining at Respondent's Roanoke Rapids plant and claiming credit for that change in the profit-sharing mechanism. Robbed of this rallying point, by the Employer's conduct only 4 weeks before the elec- tion, the Union clearly sought to utilize propaganda to preserve its position in the light of the Employer's action. The leaflet was misleading, and. per- haps ought not be condoned, but nonetheless that action did not diminish the import of this grant of benefits upon the election to he held at that location. Indeed, in a prepared speech, given to Wallace employees on Janu- ary 28, 1975, plant manger Gordon Walker in an antiunion address, refuted the import of that leaflet, by stressing that the sorce of the profit-sharing floor was exclusively attributable to the beneficence of J. P Stevens and was a matter that the Union had nothing to do with. (See (.C. xh. 602(d).) 418 J. P. STEVENS & CO.. INC. creased from $68 to $90 weekly. Because of a possibly inno- cent misinterpretation of this statutory revision, a number of employees laid off at Wallace on September 30, 1974. were prejudicially frozen for an entire benefit year at the $68 weekly benefit level. On February 11, 1975, only 8 days before the scheduled election at the Wallace facilities. Re- spondent announced that employees at all North Carolina plants who were prejudiced by the allegedly erroneous in- terpretation of the new law would be paid the difference between the $68 weekly benefit and the new $90 weekly benefit. Respondent's evidence as to the origin of this problem reflects that in September 1974 business conditions at the Carter plant called for a temporary layoff. Odis Little, divi- sion industrial relations manager, testified that in Septem- ber he received an inquiry from Plant Manager Walker concerning the intended layoff, and asserts that Walker ex- pressed the desire to assure that employees affected thereby would benefit under the change in unemployment law. Lit- tle testified that he "told him that the change was effective October I, and that if he waited until that week to curtail. that the people would be covered under the benefits." Walker also instructed Jack Cottle. the personnel manager of the Walker plants, to contact Elizabeth Girant of the State Employment Security Commission to discuss the un- employment situation with her." Grant purportedly in- formed Cottle that under the new unemployment law the maximum benefit an employee could receive was being raised from $68 per week to $90 per week, effective the first week in October. Subsequently, on or about September 23. 1974 Cottle again telephoned Grant and asked if' layoffs scheduled for the week ending October 6. 1974 would qual- ify employees for the higher benefits. Grant answered in the affirmative. There apparently was no specific mention of the fact that the actual layoff date was September 30, the day before the effective date of the revision in the employ- ment benefits. As I understand Grant's somewhat confusing testimony. weekly benefits for eligible employees are at the level in effect at the commencement of their benefit year. The bene- fit year commences on the first day of the payroll period in which the layoff occurred, irrespective of when the unem- ployment claim is filed. Since September 30 was the first day of the payroll period in which the Carter plant layoff occurred, those included in that layoff were only eligible for the $68 weekly benefit for the next 12 months. This fact was not discovered until October 9, 1974. Efforts to relieve the impact of this error upon the laid off employees commenced immediately. These efforts proved fruitless. After local management exhausted all apparent avenues for obtaining relief. Odis Little, at the division lev- el, informed local plant management "that there was really nothing more that we could do at that time." Little then prepared a formal explanation to be read to affected em- ployees. °0 On or about November 8, 1974. that document "9 Elizabeth Grant at the time of the events herein in question was man- ager of the Employment Security Commission for Duplin County Mrs. Grant was based in Kenanssille, North Carolina, and J. P. Stevens at Wal- lace constituted the largest single employer in her jurisdiction. t0 See G.C. Exh. 601i(al was read by supervisors to groups limited to the employees affected. Significantly. and somewhat puzzling is the fact that said statement does not attribute the error to faulty information received from Grant or any other state official. Instead, insofar as material, the explanation afforded the employees was as follows: We did not know. and the employment security people did not advise us that the new coverage would not be effective when we stood the knitting department the week beginning Monday. September 30. 1974. We thought that. since. October I fell during that week that the knitting department would be covered under the new law. It was only after we had stood that week and ou people had been signed up that we lbund out the facts about this point. * * Telling you this won't get you anymore [sic] unemploy- ment compensation and probably won't make you feel any better. but we felt we owed you an explanation about how' this situation came about." Though the gist of the Respondent's expressed position was that no relief would be accorded the laid off emplo! ees. its posture in this regard subsequently became more lexi- ble. Although the Respondent claims that at the time that the above statement was read to the employees, no further layoff was anticipated. it appears that commencing Novem- ber 25, only 2 full working weeks later, the entire Wallace operation was shutdown. In consequence of the earlier mis- take, during this shutdown, 134 employees were frozen at the $68 benefit level while the balance of the work force. having been laid off for the first time in November. received the new maximum of' $90 per week. This disparity under- standably led to discontent. I.ittle, having received reports from plant management at Wallace to this effect, contacted J.M. Jelks. the director of industrial relations at the corpo- rate level in late December 1974. In the course of their conversation. I.ittle "outlined the whole scope of the prob- lem as it existed up to that point. explaining that he had exhausted his resources, that local management felt that remedial action should be taken." and solicited Jelks help."' n Although accepted, for purposes of argument, it should not go unno- ticed that the undersigned viewed with considerable suspicion the effort to impose responsibility upon state officials for the compensation error Grant seemed Itio willing in her confession of fault, and Cottle too protective of the Company's own negligence in the handling of this matter of importance to employees. Curiosity is also aroused by the drift of the statement prepared by Little to be read to the employees affected. It is difficult to imagine that Little, in drafting that document, was unaware that local management had acted upon confirmation and with guidance from Grant. If that. in reality. had been the case, would it not have been passed on to employees on No- vemher 8, during the course of the organization drive. Despite concern for the truth of this entire foreground for the defense, firm resxoluirn of that question is unnecessary to the analysis. ' According to the testimony of Little. prior to contracting Jelks, he con- lacted Tom Ingraham, vice president of the North Carolina Textile Manu- facturers Association. Ingraham, according to Little, stated that the problem affecting the Carter plant was statewide, and that other employers were involved in a similar mixup. Ingraham did not appear. In view of an objec- tion interposed by the Charging Parts. the undersigned informed counsel for the Respondent that he would not make findings based on uncorroborated hearsay. and specifically urged Respondent to call primary witnesses I he expected findings on the secondar evidence adduced through I.ittle 'tIhough ( 'ontlnued) 419 DI)F(ISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, Jelks arranged a meeting with the Director of the North Carolina Employment Security Commission, which was held on January 24, 1975. At that time, Jelks assertedly expressed the view that it was the Employment Security Commission that was responsible for the misinfor- mation upon which the Company had relied and that there- fore the former should correct the error. According to Lit- tle, representatives of the Employment Security' Commission were sympathetic to Respondent's problem. but indicated there was nothing that they could do to re- solve it." With this, Little suggested to Jelks that the Com- pany reimburse the affected employees. Jelks replied that more imformation was necessary to evaluate the suggestion, and later directed that a cost statement be prepared by Ste- vens' accounting staff. At the time of this meeting, Jelks had gathered information projecting the number of employees who might have been affected adversely by the change in benefits error. These projected figures showed the follow- ing: Ragan Aberdeen Longview Carter-Wallace Boger City Roanoke Fabricating Rosemary Richmond Fabricating Martha Bynum Bob Stevens 171 9 158 5 2 7 2 On January 27. the comptroller of the Company's synthetic division submitted a memorandum to Jelks outlining the procedures which would be used in making the cost esti- mate. On or about February 9, 1975. Jelks received infor- mation that it would cost approximately $5,243 to reim- burse or compensate every affected employee in North Carolina plants whose unemployment benefit was at the $68 level due to the erroneous interpretation under the law. Upon receipt of this information, Jelks alone decided to pay the employees the differential. On February II an an- nouncement was made to each of the employees affected of the Company's decision. Here again, a new benefit innovation was conceived and announced shortly prior to the election at Wallace. Jelks was no stranger to the campaign at Wallace. Little admitted that both he and Jelks were involved in the preparation of speeches delivered to employees by the plant manager dur- ing the Wallace campaign. Jelks admitted working with Lit- tle on that campaign. Jelks testified that he considered whether announcement of the new benefit should be de- ferred, but felt that, to do so, would be unfair to other North Carolina employees. This assertion smacked at pre- text and represented a segment of a deliberate, overall at- tempt to distort the true motivation for his action. this ruling was made at the hearing session of June 21. 1977. and the hearing was closed on August 3. 1977. Respondent made no effort, or requested no leave, to call any such witnesses. Little's uncorroborated hearsay testimony in this respect is nonprobative and affords no substantial basis for a finding. 33 Pursuant to a highly leading question, propounded by Respondent's counsel, Jelks indicated that the Commission's director acknowledged that the Commission had made an error. I did not believe this aspect of Jelks' testimony, and in any event it stands as incompetent hearsay. Interestingly enough, Respondent's own evidence hardly suggests that employee unrest at other North Carolina fa- cilities remotely approached that existing among the em- ployees at the Carter plant. The testimony of Little and Jelks clearly implies that the unrest among employees was most intense at the Wallace plants. There is no evidence that the notice read to affected employees at the Carter plant on November 8, was ever communicated to employ- ees at any other North Carolina locations. Further testi- mony adduced from Jelks persuades that he was aroused to remedy the problem solely on the basis of reports of discon- tent from Wallace. Thus, he testified that prior to his dis- cussion with Little in late December 1974. he felt that the unemployment compensation problem had been laid to rest by the November 8 notification to employees at Wallace that nothing further could be done. Later. the problem re- emerged with the November shutdown at Wallace, not shown to have been experienced elsewhere. Jelks became involved again in consequence of ittle's appeal in late De- cember, which according to the testimony of Little was prompted by the second layoff at Wallace. The concern expressed by Jelks for fir treatment of em- ployees at all plants was self-serving and far disproportion- ate to the events pending at Wallace. That Wallace was the tocal point of the problem was evident to Jelks from infor- mation he possessed when he made the decision to provide the supplementary benefit. At that time Jelks knew that only at Wallace was the problem a significant and poten- tially lingering one. Thus, as matters turned out only five of Respondent's North Carolina facilities were affected by the problem. Of these, three, the Rockingham. Roanoke Rap- ids, and Boger City plants, had a combined total of only four adversely affected employees. Apart from Wallace- Carter, the balance of the employees to receive the supple- mentary payment, numbering 113. were employed at the Ragan plant. At Carter, 151 qualified for the new benefit. Jelks made his decision with these figures at hand. Thus. apart from some 151 employees scheduled to participate in a Board conducted election a few days later, the only sub- stantial complement to be affected by the announcement were those at the Ragan plant. Yet, a document, apparently prepared at the request of Jelks on January 23, 1975, and forwarded to Jelks, nullifies the suggestion that the unem- ployment differential presented a problem at Ragan, by stating as follows: Less than one-half dozen employees questioned the dif- ferences in benefits. No employee problems resulted. Nonetheless, counsel for the Respondent produced the following response from Jelks on examining him as to whether the upcoming election at Wallace was the consid- eration in making the decision to grant the supplemental benefit: Certainly everything we did at Wallace at that time was a consideration. It certainly was not the major consideration. Our consideration, our major consider- ation, and the basis on which we made this decision was because it was the "fairest" thing to do, the "right thing" to do, and we felt that the sooner we do it the fairer it would be for all those people who were af- fected. 420 J. 1'. SEVEtNS Contrary to the effort hb Jelks to diminish the relationship between his decision to grant this benefit and the campaign at Wallace. the circumstances surrounding the announce- ment of this shi in company policy reduces the defense to a transparent deception. Apart from the election scheduled at Wallace for February 19. announcement of the new benefit prior thereto served no interest other than the Com- pany's concern for the discord that the unemployment issue had created among employees at that location. 4 The an- nouncement was made in haste only one week before that election. and at a time when final computations had not been completed as to the specific amounts individuals would receive." From the foregoing, I find that Jelks entered the efforts to resolve the unemployment benefit problem because of the unrest among the Carter plant employees and that he made the decision to remedy these complaints with knowledge that this was the sole facility where discontent presented a serious immediate threat to management's interest. I find that the remedy was conceived and precipitately an- nounced, to influence the vote of employees at the Carter plant, and further, that the extension of the scope of the new benefit to other plants unaffected by union activity, was a deliberate design to mask an outright interference with employee choice. Accordingly. I find that Respondent violated Section 8(a)(1) of the Act by announcing and de- ciding to grant a supplemental unemployment payment to discourage employees from supporting the Union. d. Miscellaneous acts of coercion In addition to the foregoing, the complaint alleges in- dependent 8(a)(1) violations based upon three separate en- counters between individual employees and supervisors. The first of these allegations relates to an alleged threat of discharge communicated by Robert Cranford, the finish- ing department superintendent at the time, to employee Er- nest Carroll. It is the General Counsel's claim that shortly before the election, in February 1975, Cranford aired his animus toward the union activity of another employee, Robert Glasper, to Carroll, in a conversation which in- cluded a threatening remark prompted by Glasper's union activity. The General Counsel offered in evidence the sworn, pretrial affidavit given by Carroll on April 17, 1975, only about 2 months after the incident in question. Car- 3 Jelks, not without exaggeration, testified that because of the unemplo)- ment benefit problem "it was said that we had dissatisfaction at Wallace and Ragan and Roanoke Rapids, Volger City, and Rockingham. and that we had better face up to this problem everywhere, Wallace included." " G.C. Exh. 601(b) is the announcement read to affected employees on February I . 1975. Jelks participated in the preparation of that document. The last paragraph thereof states as follows: All of the applicable figures not in our own records will be obtained from the commission. As soon as the necessary computations can be made for you and for all Stevens employees adversely affected by hav- ing "signed up" as of the week of September 29, 1974. such computa- tions will be gone over with each individual affected and payments will be made to each. In any event, neither the nature of the benefit nor the degree of the compa- ny's liability would have been influenced one iota had the Company deferred its announcement until after the election, when all computations as to the amounts payable would have been ascertained. 's See G.C. Exh. 600. 421 roll's lestimonial accoutnl ofl the incident is not absolutel symmetrical with the version appearing in his prehearing affidavitl. but not so inconsistelit as to require rejection o' his testimon. As I interpret his sworn accounts. ('ranfordl. shortly before the election. stopped Carroll as he passed the former's office enroute to a speech to he delihercd hb a union representative under the terms of a civil contempt order3 " Cranford at that time indicated that there was not "a damn thing to the Union" and that Carroll should tell the men that. With reference to Glasper's union activity (possibly his participation in handbilling or his wearing a union button). Cranford indicated that he should have fired Glasper a long time ago. but instead saved his job. Cran- ford told Carroll to communicate his comments to Glasper. Carroll's affidavit and testimony indicate that he did so. Cranford denied that he ever had a conversation with Carroll. lie attempted to draw attention to the improhabil- ity of Carroll's account by describing (Carroll as a person difficult to communicate with. I have heretofore indicated that did not regard Cranford as a reliable iiness. Al- though Carroll was under perceptible strain in attempting to recall the specifics of this conversation. occurring more than 2 years before, his affidasvit executed in April 1975. at a time when Carroll was an incumbent employee with at least 8 years service, enhances persuasively that his account had substance. I credit Carroll, and find that in the conver- sation to which he attests, Respondent violated Section 8(a)( I) by Cranford's expression that, in iew of employee Glasper's present union acti\ityl he should have been fired when Cranford had the opportunity at an earlier date. The complaint also includes an independent 8(a)( I) alle- gation based on the testimony of employee James NewKirk that about 2 weeks prior to the election, while he was read- ing union literature in the break area, on nonworking time, Supervisor William Batts approached him and directed him not to read union literature in the plant. Batts denied that this incident occurred. adding that he neither instructed Newkirk not to read union literature, nor even observed him doing so in the break area. There were no witnesses to this conversation. Absent corroboration, the testimony by Newkirk is regarded as an unreliable predicate for an unfair labor practice finding. Newkirk was an unimpressive wit- ness, who struck me as argumentative and biased. Accord- ingly, I shall dismiss the allegation based upon his testi- mony. Finally, the original complaint alleges that Respondent violated Section 8(a)( 1) of the Act through an allegedly co- ercive statement attributed to supervisor Vaden Scholar by employee Bernice Jenkins. According to Jenkins, Scholar approached him and expressed his understanding that a union meeting the previous evening did not go well. Jenkins asked Scholar how he knew that Jenkins had attended the meeting. Scholar indicated that he knew eerybody who had attended, and expressed his understanding that certain employees did not like what they heard and therefore ' Carroll affirmed the truth of the content of his affidavit while teslifving in this proceeding. 13 As shall be seen infra, the election campaign n ssue here was the sub- ject ofa contempt order. which. inter alia. included certain provisions requir- ing Respondent to provide access to the Union for delivery of speeches to employees on work lime I)1(ISI()NS ()1 NATIONAI. ABOR RA I .AI ONS BOARI) walkcd out. When .Ienkins asked how Scholar had received such intlbrnlltion. Scholar made no comment ;Ind lsimply walked off'." Scholar denied havinlg an) conversation with Jenkins concerning ai mecling at the National (Juard Arrmory. Scholar admitted that he knew of union meetings at the armory arid that he had received reports from others con- cerning Jenkins' union activity. At one point in his testi- mony., Scholar seemed to admit that he did discuss what transpired at union meetings with other employees, but seemingly aware of the import of such a slip, he subse- quently appeared more cautious and inclined to hedge his testimony in this respect. Scholar was not impressive and the testimony of incumbent employee Jenkins is preferred. Section 7 of the Act protects employees in their right to engage in union activity free of' harrassing expressions by supervision to the effect that the "eyes and ears" of man- agement are monitoring such conduct. Considering the Ste- vens' history of hostility toward union activity, Scholar's revelation of knowledge as to what went on at the union meeting was coercive and violated Section 8(a)(1) of the Act. e. Other unfair labor practice issues The foregoing constitutes the entirety of the independent 8(a)( I) allegations alleged in the original complaint. Several additional issues remain, but they shall be treated in other sections of this decision. Thus, the complaint alleges that Respondent violated Section 8(a)(5) and (I) of the Act by unilateral promulga- tion of an unlawfully broad no-distribution rule on various dates prior to February 19, 1975. The complaint also alleges that Respondent violated Section 8(aX5) and (I) of the Act by in April 1976 unilaterally converting its profit-sharing plan, to a pension plan, without notifying or consulting with the Union. These allegations are controlled by the question of whether Respondent was obligated to bargain with the Union at the time unilateral action was taken, in accordance with Trading Port, supra, and N. L.R.B. v. Gissel Manufacturing Co., Inc. The issues presented thereby ac- cordingly will be discussed in a portion of this decision dealing with the alleged refusal to bargain. In addition to the foregoing, the General Counsel, after close of the hearing, sought to amend the complaint to re- flect additional 8(a)( I) violations based upon meetings con- ducted by plant managers in April and May 1977, which pertained to this proceeding. Since the issues raised thereby bear some relationship to the question of whether the Union achieved majority support during the 1974-75 cam- paign, they shall also be resolved below. 2. The alleged 8(a)(5) violation a. Preliminary statement Unquestionably the issue of fundamental concern in this proceeding derives from the claim by the General Counsel " Jenkins could not recall the date of this conversation and indicated it could have been any time between October 1974 and the election of Fehbru- ary 19, 1975. and the Charging Party that the Union, as of' 'ebruary 19. 1975, had been designated by a majority of the employees in the appropriate unit, and that Respondent accordinglx violated Section 8(a)(5) and (I) of the Act by refusing to bargain with the Union. It is claimed that Respondent en- gaged in unfair labor practices sufficiently serious and sub- stantial to warrant the imposition of a bargaining order in accordance with the Board's authority to find 8(a(5) viola- tions where an established majority has been destroyed through unlawful employer conduct seriously impeding the prospect that a fair election could be held. Thus. in N.I..R.B. v. Gissel Packing (.. Inc.. 395 U.S. 575 (1969). the Supreme Court authorized the Board to issue a bargain- ing order in certain factual contexts, including those meet- ing the test set forth below: In fashioning a remedy in the exercise of' its discretion, the Board can properly take into consideration the ex- tensiveness of an employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though pre- sent. is slight and that employee sentiment once ex- pressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue?4 b. 7The approplriate unit The complaint alleges that "All production and mainte- nance employees employed at the Emploger's Carter plant. Holly plant, and warehouses at Wallace North Carolina. including plant clerical employees. watchmen, computer programmer in the dye house, electrical technician. and plant driver: excluding office clerical employees. profes- sional employees, cloth store clerk, managerial employees, guards, and supervisors as defined in the Act" constitute a unit appropriate fbr the purposes of collective bargaining within the meaning of Section 9(bh) of the Act. Respondent denies this allegation, but no supporting proof was submitted. The above-described unit is deemed appropriate. It conforms with that deemed appropriate in the Decision and Direction of Election issued by the Re- gional Director for Region 11 on January 20. 1975, and it does not appear that the Employer sought review of that determination. Accordingly, under establish Board policy. the Regional Director's original unit determination is con- trolling in this proceeding. See Section 102.67(f) of the Board's Rules and Regulations. See also, e.g., Pittsburg Plate Glass Company v. N.L.R.B.. 313 U.S. 146, 162 (1941). Accordingly, I find that the unit set forth above constitutes the appropriate collective-bargaining unit in this case.' c. The request for recognition Respondent denies that, in the circumstances, a valid de- mand, sufficient to give rise to an obligation to bargain, was 4°395 U.S. at 614 615. *1 The Respondent's stipulation with respect to a payroll listing of employ- ees suggests that its objection o) the scope of the appropriate unit is not seriously maintained. (See G.C. Exh. 628.1 422 J. P. STEVENS & CO.. INC. ever made. Nonetheless. Respondent appears to concede that on December 16, 1974, an attempt was made by union representative Phillip Pope to deliver a demand letter. 2 which was presented to Jack Cottle. Respondent's person- nel director at Wallace. Pope credibly, and without contra- diction, testified that he informed Cottle that he had a letter stating that the Union represented a majority of the em- ployees and was ready' to sit down and start bargaining. Cottle replied, "We're not ready for you boys yet, just let the Labor Board handle this thing." Pope then left the plant and forwarded the letter to Respondent by registered mail. In addition to this legally effective demand, the steno- graphic transcript of the preelection hearing on January 9. 1975, in Case II RC 3987 attests to a second demand by union representative Harold Mclver. The transcript reveals that, after Respondent's counsel stipulated that a demand had been made on December 16. 1974. Mclver went on to indicate: "I would like to state that we have a continuing demand for recognition." Notwithstanding the foregoing. Respondent disputes the existence of a valid demand on grounds that the Union had not achieved majority status until after January 9, 1975. It is true that the record in this proceeding does not reflect that the Union had obtained majority status at that time. On the contrary, the critical date for assessment of the Union's majority was February 19. 1975. As a matter of Board policy, the Union's failure to make a further demand on that date would be excused by the continuing nature of its earlier demands." Respondent nonetheless relies on re- jection of the Board's "continuing demand" doctrine in Hedstrom Co. v. N.L.R.B.. 558 F.2d 1137, 1148 (3d Cir. 1977), wherein the Court stated: We cannot accept any concept of continuing demand which requires an employer either to recognize a ma- jority status union, or to risk a Section 8(a)(5) violation in the event that the minority union attains majority status sometime after the demand, unless it gives re- newed notices to the employer that it has obtained ma- jority status since the last demand. If an employer were to recognize and bargain with a union which does not represent a majority of the employees in the appropri- ate unit, it commits an unfair labor practice in viola- tion of Section 8(a)(2) which prohibits an employer from aiding any minority union. If at the time an ini- tial demand is made the Union lacks majority status. the Union must notify the employer when in fact it has obtained a card majority from the employees in order to effectuate a valid demand for recognition. There is disputed testimony in this proceeding suggesting that at a preelection conference on February 19, 1975, statements were made satisfying the expression by the Third Circuit Court of Appeals. However, that evidence does not rise to a level of sufficient clarity to warrant cre- dence and while words might have been expressed ap- proaching a new demand, I do not believe that they 42 The letter was addressed to General Manager Waltker He apparently was not available when Pope attempted to serve the letter. 4 See. e.g.. Area Disposal, Inc., 200 NLRB 350. 352 (1972) amounted to an unambiguous, seriously conveyed request for immediate bargaining. In any' event, it does not appear that the Board has acqui- esced in the view expressed by the C'ircuit Court in Hed- stro.. svupra. But, furthermore, it is entirely possible that the Court's view would be withheld on the instant premises. Thus, the instant organization drive was conducted in a unit consisting of about 1.000 employees. and it is difficult to imagine that the Union. with respect to such a large working complement, could at any time ascertain with cer- tainft' whether it held validly executed authorization cards from a majority of the work force." Prior to Februars 19. the Union manifested demands through three separate ef- forts: Pope's initial rebuff by Personnel Manager Jack Cottle on December 18, was followed hb the mailing of a registered letter. After Stevens, by letter of December 27. 1974, rejected the formal demand. on January 9. 1975, the issue was raised again, whereupon Stevens. through its counsel, at the representation hearing, rejected Mclver's re- newal of the request. On the heals of these refusals. Respon- dent engaged in the most serious unfair labor practices liti- gated in this proceeding. These factors adequatel) demonstrate the futility of a further demand. Together with Stevens' history of unfair labor practices and commitment to the maintenance of union free operations, the post de- mand unfair labor practices obviate all possibility that rec- ognition would have been conferred by Respondent on any- thing short of a Board order or certification. In such circumstances. to impell the Charging Party to, for the fourth time, affirmatively' demand bargaining, is to impose a meaningless requirement, hardly justified by any' necessity to insulate Stevens from the pitfalls of a Section 8(a)(2). See Lcal 152, International Brotherhood of Teamsters. Cha/lf- feurs and Helpers of America [A merican Compress Steel (Cor- poralion] v. N.L.R.B.. 343 F.2d, 307, 310-311 (D.C. Cir. 1965). Contrary to the Respondent, the demands made by the Union on December 16. and the renewal thereof. together with the express declaration that the demand was of a con- tinuing nature, on January 9. 1975. were sufficient to sup- port the alleged 8(aX5) violation in this case." d. The union' representative status (I) Preliminary statement: Respondent's 1977 conduct The controversy over the Union's majority was the most extensively litigated question in this proceeding. Hundreds ofwitnesses testified as to the validity of union designations executed some 2-1/2 years early. The sharpness with which 'The same could e said for the Employer. who, in deference to the Court in Hedsrromr supra. would not be relieved of the perils of an 8(a)12 violation simply by a succession of renewed demands for recognition. *t The date February 19. 1975. was arrived at in advance as a convenient reference point for assessing the Union's majority. This was necessary so that a list could be prepared in the course of the hearing and before all cards were liligated which would reflect the actual number of employees on the payroll and in he unit on a particular date February 19 was selected as the outside date for assessing a majority in this proceeding pursuant to Ihal effort. It is entirely possible that the l'nlon. n act. represented a majority n advance of that date. 423 DECISIONS OF NA'TIONAL LABOR RELATIONS BOARD counsel on all sides joined issue on the probative value of substantially all cards, necessitated perhaps more than a thousand evidentiary rulings. By my count, the General Counsel offered 583 cards, with all but a handful, received in evidence? This issue has been resolved in the light of the universally accepted fact that cards are not the most reliable indicia of employee choice, and that a secret ballot election is the preferred means for resolving questions concerning repre- sentation. Indeed, the process of establishing a bargaining relationship on the basis of authorization cards has received sharp criticism in certain quarters.47 Nevertheless. "where an employer engages in conduct disruptive of the election process, the cards may be the most effective perhaps the only-way of assuring employee choice."" Thus, regardless of how unwelcome, the assessment of an alleged card ma- jority, in such circumstances, is the only effective means for treating with employers who, through their unfair labor practices, would marshal the Board's election process to their own ends. The possibility that by lending primacy to authorization cards chicanery on the part of union organizers might be endorsed, compels the trier of fact to be alerted to untoward practices and to act upon a sense of concern and respect for employee choice so as to discourage and discount any high- handedness in the solicitation of cards. At the same time. however, one must be equally mindful of possible impropri- eties on the part of those who challenge a union's represent- ative status. Thus, as the Supreme Court has recognized: We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the Union, particular where company officials have previously threatened re- prisals for union activity in violation of Section 8(a)( 1 ).49 Indeed, pressures on employee witnesses may be subject to reinforcement beyond the inherently intimidating effects of past unfair labor practices and their economic dependence upon continued employment. The record in this case bears evidence that this possibility did not escape Respondent. Stevens, immediately prior to the instant hearing, re- sorted to somewhat extraordinary measures which carried all the earmarks of a deliberate design to capitalize upon a combination of fear and dimmed memories in the interest of influencing testimony to be afforded in this proceeding. Thus, on April 13 and 14, 1977, only -month prior to the opening of this hearing, plant managers Shelton and Wel- Ions read a prepared speech5 0 to small groups of employ- ees,' numbering approximately 15 employees at the Carter "' My count is substantially at odds with the statement appearing in the Respondent's brief that "544 union authorization cards were submitted by the General Counsel at the hearing." (See Resp. Br. II, p. 6.) 4 See the opinion of Judge Medina, speaking for the Second Circuit Court of Appeals in Bryant Chucking Grounds v. N L.RB.. 389 F.2d 565 (2d Cir. 1969). 41 N.L.R.B. v. G.rsel Packing (Co., supra at 602. 49 N.L.R.B. v. Gissel Packing C(onpany, supra at 608. w°The speech is in evidence as G.C. Exh. 626. si See Resp. Br. II, p. 51. and Holly plants. The plant managers opened each meeting with the following statement: The purpose of this meeting is to have an open and frank discussion about the union and its efforts to get you to sign authorization cards and to work for the union. At the beginning of this meeting let me make it very clear that each of you should feel completely free to ask any questions you may have or to make any comments you desire. This is an open meeting and I hope you will make any comments you think appropri-- ate. Many of you have asked questions about the union and its continuing efforts to get into our plant. Today I'd like for us to discuss what a union really is, and how they operate. Secondly, I'd like to discuss with you what the union's after by trying to get you to sign their authorization cards, and also in the upcoming legal proceeding. The speech at this point departs from any objective effort to educate, and assumes a low keyed tone, calculated to per- suade by dwelling upon the pitfalls of union membership through hardhitting, often misleading,': harsh expressions of the ill consequences to befall employees through union- ization. On the heels of this deceptive diatribe, the speech goes on to discuss this proceeding as follows: In the upcoming legal proceeding, those employees who signed cards prior to the last election will be called into court to testify about their signature. Unless an employee can prove that he/she was misled or de- ceived into signing a card, or fraud was involved. or the card was not signed by the employee, the Labor Board will count the card for the Union. If the union can get a majority olf cards from employ- ees working in 1974 counted by the Labor Board, then they will try to prove that the only reason they lost the election was because of three things we did. * * * * * The union has lost I I of the 12 secret ballot elections where employees have voted on unionization. There- fore, the union has decided that the way for them to try to get into our plant is not through elections, but through cards and these legal proceedings. That's why they are trying so hard to get you to sign one of these cards declaring them your collective bargaining repre- sentative. If they can get a majority of our employees to sign these cards, they will again start looking for legal technicalities to try to get into our plant. They don't want a secret ballot election again here at Wal- lace. I think they know they would lose this election. J2 This phase of the speech was likely to imbue employees with baseless notions that union representation would automatically expose them to the payment of dues, checkoff, and fines, implications, which run head long into the North Carolina right-to-work statute (general statutes of North Carolina. Chapter 95. art. 10, sec. 95 82), which outlaws compulsar) membership and compulsary payment of dues or fees under a union or agency shop provision, as well as Sec 302(c) of the National Labor Relations Act, which requires voluntary employee authorizations befi)re dues may be deducted from wage payments. 424 J. P. STEVENS & CO.. IN('. just like they lost in 1975. Apparently the union he- lieves they may fail in their legal case to try to overturn your vote and to get into our plant on these charges, so now they are again working to get cards signed. A secret free vote is not what the union organizers want. They don't want you to have the facts or a vote. They would prefer for you to be exposed only to their pressure tactics and promises, and would try to get into this plant based on these authorization cards. Upon conclusion of the speech, employees were invited. during "round table" discussions-in the presence of no less than their plant manager-to express their views concern- ing any issue, including the hearing to be held in this pro- ceeding. In the courses of those sessions, notes were taken of statements made by employees, but no record was made of responses or expressions by management. That any party-litigant would overtly resort to propa- ganda and group pressures to influence potential witnesses is somewhat astonishing. But, in the case of J.P. Stevens. such a ploy is simply indicative of unbridled arrogance. One would think that Stevens-with all that has been said in the course of its ongoing struggle with this Union would conscientiously avoid any appearance of tampering with witnesses. For aside from having earned the reputation as the chief offender of Federal labor laws. Stevens has drawn fire in that area as well. In N.L.R.B. v. J. P. Stevens & Co., 464 F.2d 1326 (2d Cir. 1972), the court condemned Stevens not only for its disrespect for law, but went on to state as follows: while conflicting testimony about a specific event may sometimes have been atributable to difference in per- ception or recollection, we cannot escape the impres- sion that many conscious and deliberate falsehoods were given by company witnesses. We cannot express too sharply our condemnation and dismay for this ap- parent disregard of the legal and moral obligations which the testimonial oath imports." With apparent disregard for the gravity of this charge. and in the face of it, the conduct by the plant managers in April 1977 amounted to no less than a deliberate effort to persuade employees to testify in a Board proceeding in a manner furthering Respondent's interest in defeating unionization of the Wallace facilities, and reflected a brash willingness to risk responsibility for testimony which disre- garded the sanctity of the oath. The round table discus- sions, following a hardhitting assault upon the Union, hardly created an atmosphere likely to promote objective comment. There can be little doubt that this was a device of manipulation utilized to play on group pressures. and to provide a one-sided forum for antiunion employees, in the presence of high ranking supervisors, who were making a record of what employees said. 4 The General Counsel and the Charging Party urge that the testimony of incumbent employees, seeking to repudiate their cards. be discredited since tainted by their attendance "464 F.2d at 1329. 4 Evidence of the April 1977 events was deemed admissable, over Respon- dent's objection. on the basis of its relevance to issues of credibility. at these meetings. Having already reviewed the record. and completed my findings with respect to the authorization cards. I am convinced that this hearing was not always viewed by employee witnesses as a tribunal where issues ofI representation would be resolved on the basis of the truth- ful expressions of fact. within recall. Common patterns of obviously contrived testimony were adduced primarily from incumbent employees who sought to repudiate their signatures to authorization cards. Most. if not all. employ- ces who afforded such testimony have been discredited. But those determinations have been based essentially on mat- ters collateral to their attendance at the April 1977 meet- ings, and while suspicion exists as to the origin of such widespread incredulity. the April 1977 meetings have not been relied upon as a basis for impeaching such employees as a class. Before turning to assessment of the individual authoriza- tion cards, it is necessary to pass on a post-hearing motion by the General Counsel to amend the complaint to allege additional 8(a)( ) violations based upon specified aspects of Respondent's conduct in 1977. Respondent opposed that motion on grounds that it was afforded no opportunity to present a defense as to these matters in view of the absence of notice and the belated nature of the motion, and, on the further ground, that the evidence relied on by the General Counsel failed to establish prima facie violations. The first of these new allegations does not relate to the card issue, but relates to the claim that Respondent violated Section 8(a)(1) by encouraging employees to inform on the union activity of other employees. The conduct involved here is substantiated by admitted evidence on this record. In this regard, the prepared speech delivered in April 1977 by the plant managers was not limited to this proceeding. but also sought to counter the Ulnion's renewed organiza- tional effort which began in January 1977. The following was included in that speech: There have been some reports of union pushers threat- ening people to try to get them to sign union cards. I want one thing made clear. If anyone threatens you or tries to put you under any sort of pressure to sign a union card, let the company know. We will put a stop to this. We will not put up with that kind of treatment of our employees. This expression is not materially different from those condemned by the Board in other cases, in which employers have been held to have violated Section 8(a)(I) b state- ments urging employees to report incidents of badgering by employee organizers.' or to report where exposed to "pes- tering or pressured to join" a union." Here. as in the cited cases, the segment of the speech encouraging emplo ees to report on "union pushers" when "put . under an' sort of pressure to sign a union card" involves a standard so vague as to subject employee organizers to the perhaps. mercilous imagination of fellow employees seeking any excuse to in- form. The reference in the speech possessed all the restrain- ing effects deemed unlawful by the Board in the past, and. accordingly. as the portion of the speech in issue constituted " Po,,r,n Produc ,/ Miussiippi. Inc,. 217 NI.RB 704. 707 i l97) '6See I.erheran Iospvl or f ull I kAee, 224 NI.R B 176. 178 (197) 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a fully litigated per se violation of the Act, the request to amend the complaint in this respect is granted, and I find that Respondent thereby violated Section 8(a)( 1) of the Act. 7 Of somewhat closer relevance to the majority issue is the requested amendment to paragraph 7 of the complaint, whereby the General Counsel challenges the speech, the round table discussions, and a notice posted by the Respon- dent on April 26.58 on grounds that Respondent thereby violated Section 8(a)( 1 ) by having "instructed employees as to how they could invalidate union authorization cards when they were called as witnesses in a Board proceeding." The evidence of record supporting this allegation consists of the prepared speech given by plant manager Shelton and Wellons on or about April 13 and 14, 1977 (G.C. Exh. 626). a notice posted by the Respondent on or about April 26. 1977 (G.C. Exh. 612). and the document outlining com- ments and statements by identified employees which were noted by management at the so-called round table discus- sions (GC 630). This documentary evidence, obtained by the General Counsel through subpena, was complimented by a rebutal witness called by the General Counsel. William S. Buckley, the general manager at the Wallace plants. However, apart from the speech the evidence does not re- veal specifically what was said to the employees by manage- ment representatives at the group meetings. As the General Counsel called no employee witnesses to confirm what tran- spired during those sessions, the record furnishes no basis for concluding that in the course thereof, Respondent en- gaged in unlawful interrogation, solicited grievances, prom- ised benefits, or made any coercive threats. All such matters are left to inference, and as the Respondent did not exam- ine Buckley, or put forth evidence which conceivably could neutralize such inferences, any finding that employees were exposed to classic forms of restraint during the course of those meetings would derive from an incomplete record and thus involve a denial of due process. It is true that facts which are admitted beyond contro- versy convincingly establish that Respondent was willing to risk an interference with testimony given in a Board pro- ceeding, and render itself vulnerable as the catalyst for the widespread incredible testimony given by employee wit- nesses many of whom attended those meetings. Yet, since unaccompanied by other forms of coercion, I am unaware of precedent under this Act which condemns such conduct. Accordingly, in agreement with the Respondent's conten- tions I find that the General Counsel has not made out a prima facie violation on the facts that are clearly beyond "This violation ought not be unfamiliar to Respondent's officials. See J. P. Stevens & Co.. Inc., (Stevens 1) 157 NLRB 869, 880, and J. P. Stevens & Co., Inc., (Stevens VII). 179 NLRB 279, 284, where similar violations were the subject of Board remedies. "1 Following the speeches in April, the Company posted a notice (G.C. Exh. 612) pertaining to efforts by NLRB agents to consult with card signers in preparation for the instant hearing. That notice urged employees to testify truthfully, but in the body thereof, the following statement appears: The NLRB agents are interested in whether you signed a card because you were misled into believing it was only to get an NLRB election, or pressured, or if you really intended to designate the Union as your agent. There are important legal questions which may determine whether you are unionized or not. controversy. Beyond that, the allegation has not been con- clusively litigated, and in this respect the motion to amend the complaint is denied. (2) Respondent's challenge to the Union's majority The cards on which the claim of majority is predicated are unambiguous, single purpose cards, declaring the Union to be the bargaining representative of the signer. Respon- dent asserts that the Union at no time represented a major- ity of employees in the appropriate unit. In its brief. Re- spondent specifically contests 143 cards whith were received in evidence as supported by prima fiwie evidence of their authenticity. The contested cards are challenged on six different grounds and following the grouping set forth in Respondent's brief the issues raised are disposed of under the following headings:'" (a) Allegedfiorgeries I. 60 James 0. Davis (G.C. Exh. 103.?) The General Coun- sel does not dispute the testimony by Davis that the card appearing in evidence bearing his name was neither signed by him nor executed pursuant to his authorization. On the other hand, the General Counsel relies on the further testi- mony by David that during the campaign in 1974 through 1975, he did execute a card on a representation by a union organizer who said that the card would show his interest in "getting the union .... " As observed by the General Coun- sel, consistent with the holding in Hedstrom Conanv, a subsidiary of Brown Group, Inc., 223 NLRB 1409. 1411 (1976), "testimony of an employee is itself probative of a union's majority status in circumstances where the card has been misplaced." Although the origin of G.C. Exh. 103 arouses some concern, considering the frailities in recollec- tion as to events occurring some 2 and 1-1/2 years earlier, *' it is my view that the erroneous presentation of this card should serve as no-bar to the designation by Davis, evident from his parole testimony that he executed a card on behalf of the Union in the course of the campaign. Accordingly, his designation shall be counted toward the Union's major- ity. 2. James H. Satchell (G.C. Exh. 91). Satchell credibly testified that his signature does not appear on the card of- fered in his behalf. He further testified. however, that when a union organizer came to his home and solicited his signa- ture, he first indicated that he would not sign, but then states, that he informed the organizer that he did not have time, that he was on his way to work, and indicated "Well, if you want to have it signed, sign it yourself." Satchell went 9 Those cards which have been deemed valid in the face of Respondent's challenge are listed on "Appendix B." Omitted from publication.] 6 The signers whose cards have been counted as valid designations are numbered. Those whose cards have been rejected are not. The numbers appearing in the text correspond with the listing of valid cards appearing on "Appendix B." b1 Apart from Davis, there is no credible suggestion in this record that offered cards bore forged, unauthorized signatures. It is my understanding that Evelyn Estell Gore and possibly one other employee. questioned the validity of their designation on this basis. As shall be seen infra, Gore was discredited in this respect. 426 J. P. STEVENS & CO.. INC. on to testift that. by these words, he did not intend to direct the union organizer to sign a card on his behalf. On cross- examination, it was developed that the completion of the card was witnessed by Satchell, and that Satchell admit- tedly furnished the organizer his telephone number and post office box number, which appear on the card. Quite obviously. Satchell was far more cooperative with the union organizer, than his testimony on direct attempts to convey. He admittedly had read an authorization card prior to this incident, and in my opinion, his effort to portray the autho- rization to effect his signature on such a card as a fleeting. offhand means of getting rid of the organizer. was predi- cated on unbelievable testimony. In counting his card as a valid designation, I note in passing, that concern does exist that this incumbent employee's incredible testimony might well find its origin in the speech conducted by plant man- ager Shelton in April 1977.62 (b) Unauthenticated dates 3. Tison Carr (G.C. Exh. 357). Respondent correctly ob- serves that the card introduced through this employee was not authenticated as to date. However, Carr. an incumbent employee at the time of the hearing, with 14 years service, testified credibly that he executed the card prior to the elec- tion and during the campaign.6 More specifically, Carr de- fined the campaign as that which ended with the election in 1975, and specifically testified that he executed his card in 1974. Accordingly, based on his believable testimony. I find that, contrary to the Respondent, there is no possibility that this designation was stale, and hence it shall be counted toward the Union's majority in this proceeding. Fred R. Dobson (G.C. Exh. 373). This card has been re- jected on other grounds. Dobson was not on the February 19, 1975 eligibility list. See Appendix D. 4. Ruth B. Cavenaugh Costin (G.C. Exh. 359). Costin. an incumbent employee at the time of the hearing, specifically testified that she recalled the union campaign in 1974 through 1975, and that she executed a union card during that period. It is found that her testimony related exclu- sively to her execution of General Counsel's Exhibit 359, and accordingly, I find that said card constitutes a timely valid designation of the Union. 5. Thurman Graham Franklin (G.C. Exh. 382): Franklin, at the time of the hearing, was an incumbent employee of the Respondent. His signature appears on a list of employee organizers who attended union meetings during the 1974 through 1975 campaign. He credibly testified that the card in evidence on his behalf bears the handwriting of coworker Earl Autry who was authorized to complete it by Franklin. and that after the card was filled in by Autry. the card was returned to Franklin, who found that the information was accurate. I find that Franklin credibly authenticated the date thereon through his testimony that he affirmed the cor- rectness of all entries made on the card by his coworker. 62 It is noteworthy. that Satchell. who attended such a meeting. claimed no recollection whatever of the content of Shelton's remarks on that occasion 63See James Innaco d/bla Skyline Transport, 228 NLRB 352. fn. 12 (1977). holding that the absence of dates on cards does not affect their valid- ity where the signatory testified as to the approximate date His card shall be counted toward the Union's majority in this proceeding. 6. James Edward Hicks (G.C. Eh. 407): Hicks testified that he signed a card during the 1974 75 campaign. but could not recall whether this occurred prior to the election. Phillip Pope. a nonemployee union organizer. who was re- sponsible in large measure for coordinating activities of nonemployee organizers during this campaign, admitted that the efforts to obtain signed authorization cards contin- ued after the February 19. 1975 election. According to the testimony of Hicks. the card was filled in for him b Willie Brice. who had previously testified in support of three other authorization cards, and was not recalled to validate the date appearing on that of Hicks. The General Counsel sought to clarify the uncertainty expressed by Hicks as to when the card was signed, through the official time receipt stamp of Region I I of the National Labor Relations Board. The card in question is time-stamped, December 17. 1974. In agreement with the General Counsel, I find that the offi- cial agency action evidenced by the receipt stamp.- suffi- ciently enforces the belief by Hicks that he executed the card during the 1974-75 campaign to support the conclu- sion that it constituted a timely valid designation. 7. Ruth Smith (G.C. Exh. 516): Smith could not authenti- cate the date appearing on her authorization card. How- ever, she credibly testified that she signed that card on the same day that she made all entries, including the date, on General Counsel's Exhibit 511(a), the authorization card signed by her husband. Dunnie Smith. This latter card was dated 9-24-74. Based on the credited testimony of Ruth Smith, while noting that, except for the signatures. General Counsel's Exhibit 51 I(a) and General Counsel's Exhibit 516 appear to have been penned by the same hand. it is con- cluded that Ruth Smith executed her card on September 24, 1974. 8. Mamie Twity (G.C. Eh. 531): Twitty. an incumbent employee of the Respondent. testified that she authorized another individual to execute a card in her behalf during the union campaign at Wallace. Twitty could not clearly identify the date appearing on that card. However, the card bears an official receipt stamp of Region 1II of the National Labor Relations Board dated December 17. 1974. and in view of the credited testimony of Twitty that she attended a union meeting in October 1974 in which the purpose of that type card was discussed. I find that, for purposes of this proceeding her designation of the Union was timely, and it contributes to the alleged majority. 9. Ronnie Williams (G.C. Exh. 563): Williams. an incum- bent employee, testified that he signed after his sister en- tered all information thereon. He checked the accuracy of the contents of the card before signing, but could not recall whether a date was on it when he did so.65 Nonetheless. based on his testimony that he executed a card during the 1974-75 campaign and the fact that his card bears an offi- cial receipt stamp of Region II of the National Labor Rela- tions Board, I find that his card should be counted toward the Union's majority in this proceeding. £ Ferland Management Conpar,. 233 NLRB 467 (1977) ' The signature on G.C. Exh. 563. consistent with Williams' testimony appears to differ from other entries on that card 427 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. Glen Schola (.C. Exh. 724). Scholar was an incum- bent employee at the time of the hearing. He acknowledged all entries on i.C. Exh. 724 except the date. He could not recall having placed the date on the card and could relate nothing concerning its origin. In view of Scholar's testi- mony that he was relatively certain that the card was ex- ecuted before the election and his indication that he signed it because he wanted an election, I find that it constituted a valid designation of the Union for purposes of this proceed- ing. 11. Deleon Simmons (G.(. Exh. 725). Simmons was an incumbent employee of Respondent who denied knowledge as to how the date was entered on his authorization card. Based on his testimony that he executed the card before the election during the campaign in question. I find that it con- stituted a valid designation of the Union. 12. Nelson Caraway (G.C. Exh. 147): Pursuant to request of the undersigned, Respondent at the hearing date of June 10, 1977, furnished as Respondent's Exhibit 15(a) and (b), a "current listing of Stevens' employees at the Holly and Car- ter plants." Respondent 15(b), containing the names of Car- ter plant employees as of March 29, 1977, includes the name Nelson C. Caraway. General Counsel Exhibit 147 was authenticated by Louis Washington a nonemployee or- ganizer. Though I was convinced that Washington had no independent recollection of the circumstances surrounding completion and execution of this card, his authentication of the card was based on recollection refreshed by aids histori- cally recognized as permissible for such purposes. As Cara- way was not called, the testimony of Washington that he placed the date on the card in Caraway's presence is cred- ited. I find that this union card constituted a timely and valid designation of the Union for purposes of this proceed- ing. 13. Dwight Eric Bannerman (G.C. E.xh. 573): Banner- man, an incumbent employee at the time of the instant hearing, could not identify the date appearing on his autho- rization card, but indicated that he signed the same before the election. Bernice Jenkins, an employee organizer testi- fied that he placed the date on the card immediately after Bannerman signed it. I find that General Counsel Exhibit 573 constituted a timely, valid designation of the Union. 14. Richard A. Williams (G.C. Exh. 742): Credibly testi- fied that he signed his card after the date was placed on it by someone else. and that he did so before the election. Although he could not be certain that the date appearing on the card was the actual date of execution, I am con- vinced nonetheless that the card was executed before the election and during the 1974 75 campaign. His card consti- tutes a valid designation of the Union. 15. Mar)y Carter (G.C. Exh. 113). The card of Mary Car- ter was authenticated by Raymond Paulhus, a nonemploy- ee organizer who testified that the card contains the hand- writing of the signer. Subsequently, Mary Carter was called as a witness for the Respondent. She reflected a bias and her testimony was unbelievable insofar as prejudicial to the General Counsel's position in this case. In any event, Carter did not dispute the authenticity of the date appearing on G.C. Exh. 113. and it is clear from her testimony overall, that the card was executed during the 1974 75 campaign. and prior to the election. Her card is challenged on other grounds which shall be discussed. inJra, in connection with issues bearing upon the validity of the card executed by her husband, David Lee Carter. 16. James M. Henry (G.C. Exh. 152): The authorization card of Henry was authenticated initially by Louis Wash- ington. Washington testified that he inserted the date on this card in the presence of Henry. Henry was subsequently recalled by the Respondent and acknowledged that the sig- nature appearing on General Counsel Exhibit 152 was his own but asserted that he could not recall signing the card. The thrust of Henry's testimony struck me as a contrived, unbelievable effort to repudiate his action in signing the card. It is noted that Henry attended the meeting con- ducted by Plant Manager Shelton in April 1977. Although Washington concededly did not have the clearest capacity for independent recall, and his testimony in connection with this card was unaided by resort to aids qualifying as past recollection recorded, the testimony of Henry on its face was so unbelievable as to actually enforce Washing- ton's testimony that the card was executed prior to the elec- tion on the date that it bears. I find that General Counsel's Exhibit 152 constitutes a valid designation of the Union. 17. Gloria Alford (G. C. Exh. 345): Alford's card was au- thenticated by employee Emma Hayes. According to the latter, she gave Alford a card and that same morning Al- ford returned it to her. Hayes examined the card and called Alford's attention to the fact that she had omitted certain information. Alford told Smith to make the entries. Hayes did so. Based on the credited testimony of Hayes, I find that the card was executed on the date that it bears and consti- tutes a valid timely designation of Union. (c) Ineligibhle, s not in unit 18. Kathleen P. Writer (G.C. Exh. 571). Respondent con- tends that the card of Kathleen Writer should be rejected based on her testimony that she quit in December 1974 prior to the critical date of February 19, 1975. Although the testimony of Writer is susceptible to such an interpretation, this claim by the Respondent is inconsistent with the spirit and letter of a stipulation made by the parties at the hear- ing. Thus, General Counsel Exhibit 628 was agreed upon by all parties as containing the names of the employees in the appropriate unit as of February 19, 1975. It was my understanding, and the understanding of all parties, that that list was to be afforded controlling weight with respect to the issue of eligibility. The list was developed, not in shotgun fashion, but over a period of weeks with all parties having input with respect to its content. General Counsel's Exhibit 628 was entered in evidence pursuant to a stipula- tion "that that list is an accurate representation of the names of all employees in the unit on the critical date for purposes of this proceeding." 6 As Kathleen P. Writer appears as number "994" on G.C. Exh. 628. 1 find that she was eligible, and that her properly authenticated union card constitutes a valid designation for purposes of this proceeding. "'The only exception to the binding nature of this document related to inclusion of persons not on the list, as to whom a reasonable expectancy of recall was affirmatively established. 428 J. P. STEVENS & CO.. INC. The same conclusion is reached with respect to the fol- lowing employees: (19). Johnathan Moore (G.C. Exh. 713) .#572: (20). Katie Rosemary Bryant (G.C. Exh. 350) #115; (21). Thomas D. Cole (G.C. Exh. 360) -' 166. Their cards shall be counted as valid designations. Leroyqv Howard (G. C. Exh. 342): This card is rejected inas- much as Howard's name does not appear on the agreed- upon eligibility list. Furthermore, though not specifically contested, cards of the following individuals are rejected as the signatory does not appear on the eligibility list: Batts. Adrian G.C. Exh. 39 Bryant, Paul G.C. Exh. 256 Cobia, Willie G.C. Exh. 112 Fulmer, Mary Ellen King G.C. Exh. 280 Kennedy, Anita C. G.C. Exh. 428 Kennedy, Harold G. G.C. Exh. 430 Reese, Dorothy G.C. Exh. 262 Tart, James E. G.C. Exh. 17 Williams, Glenda G.C. Exh. 169 Willis, Joann R. G.C. Exh. 122 Dobson, Fred R. G.C. Exh. 373 Underwood, Geraldine G.C. Exh. 106 (d) Cards executed prior to the instant organization campaign Three cards which are in evidence bear dates in August 1974. Respondent contests their validity on the grounds that they were executed prior to the inception of the organi- zation campaign. In this connection, it is noted that. ac- cording to testimony of union organizers, the instant cam- paign began in early September 1974. 22. John R. Garvey (G.C. E.xh. 392): Garney authenticat- ed his card and conceded that the date appearing thereon. August 22, 1974, might have been erroneously inserted. Based on his testimony that he signed a card during the campaign and that at the time of execution he expressed his desire to "vote for" the Union, it is concluded that this card was executed during the 1974-75 campaign, and that it constitutes a timely designation of the Union. 23. Gloria Ann Morris (G.C. Exh. 465) (a) and (b). The issue raised by Respondent is of no moment in the case of Morris, for she authenticated two cards. Since I credit her testimony with respect to G.C. Exh. 465(b) which bears the date of September 24, 1974. on the basis of that card. I find that she effectively designated the Union as her representa- tive during the campaign in issue. 24. Herman Vance Wallace (G.C. Exh. 535). Wallace was an incumbent employee who testified that he received a union card in the mail. Because his wife had better hand- writing, he asked her to fill it out and sign it for him. The date appearing thereon was corrected and reflects that an "8", designating August. was marked over with a "9" desig- nating September. Nonetheless, Wallace clearly testified that he directed his wife to sign the card before the election and considering his status as an incumbent employee. I find that the card was executed on a timely basis during the 1974-75 campaign. (e) Revoked designations Respondent contests the validity of authorization cards executed by Reba English (G.C. Exh. 225). Faith Andrews (G.C. Exh. 194)., Elron Farrior (G.C. Exh. 30). 7,nmli' Parker (G.C. Exh. 298). Alarvin Parker (G.C. Exh. 131), and Garland Hines (G.C. Exh. 15) on grounds that each took steps to revoke their otherwise validly executed aulho- rization cards prior to the critical date for assessing the Union's majority. In Quality Markets. Inc.. 160 NI.RB 44. 53. (1966) the Board stated: It is well settled that where an employee rexokes an authorization to a union to represent it and seeks. how- ever unsuccessfully, to retrieve the card prior to the date upon which majority status is sought that card may not properly be included among those whom the Union claims to represent. On the other hand, the Board has held that such revoca- tions are to be given no effect where attempted in n atmo- sphere of intimidation and unlawful conduct."' With these considerations, the attempted resignations are considered as follows: Reha English (G.C. E.rh. 225). An authorization card was validly executed in her behalf on Januarv 4. 1975. hat card was initially authenticated by union organizer Mike Black. English testified that her husband opposed her in- volvement with the Union. but. at her daughter's sugges- tion, she permitted her daughter to complete a card. This was done to avoid problems with her husband. She claims that after talking with her husband that evening, she tele- phoned Black that same day. advising him that her hus- band did not want her to have any part of the Union. She told him to tear the card up. Black indicated that he would. Black's own testimony indicates that this card was com- pleted with expressions of reluctance by English. lie was not examined as to the alleged revocation, and hence the testimony of English stands uncontradicted. In assessing English's credibility, it is noted, that Black did not remit this card to the Union. but retained it in his possession until shortly before the instant hearing. Although English attended the meeting in April 1977 in which Wellons gave the antiunion speech and conducted the group meetings. I credit her testimony. She impressed me as a believable witness, and viewed against other objec- tive facts, her uncontradicted testimony was entirely prob- able. I find that she did in clear and unambiguous terms attempt to revoke her card on January 4. 1975. when only the most isolated unlawful activity in connection with this campaign could have occurred. I am convinced that the revocation was occasioned solely by a firming up of the misgivings held by English at the time she authorized her daughter to execute a card in her behalf. Her card shall not be counted towards the Union's majority. 25. Faith Andrews (G.C. Erh. 194): Mike Black initiallI authenticated a card dated January 15. 1975. executed bh Andrews. It is the sense of Andrew's testimony that in sign- ing a card. Black represented that it was not for the purpose of membership, but that 3 or 4 days after his visit, she "6 See, e.g. Serv-U-Srore. Inc. 225 Nl.R 37, 39 (1976) 429 I)FCISIONS OF NATIONAL LABOR REIATIONS BOARD received in the mail, a white card, which in fct was a mem- bership card. Andrews went on to testily that 3 or 4 weeks before the election, she telephoned Black and told him that she wanted him to return her authorization card. She testi- fied that Black told her that if she did not want the white membership card, which she received in the mail, simply throw it in the trash. Although it is possible that Andrews may have attempted to revoke her card, her testimony as to why she did did not have a ring of truth. She creates the impression that she reacted upon discovery of misrepresen- tations by the solicitor as to the membership consequences of executing an authorization card. It is difficult to believe that in any subsequent telephone conversation with Black the latter did not disabuse her of any notion that a misrep- resentation had been made by simply explaining to An- drews that the white membership card she received in the mail did not have to be signed and that in fact his state- ments to her at the time of the execution of the authoriza- tion card were correct, in that she entailed no membership obligation by executing the same. Although her testimony that she attempted to revoke the authorization card was uncontradicted, my suspicion as to the truthfulness of her account is sufficiently strong to reject her vague testimony as to when it occurred. Instead I attribute any such revoca- tion to the Employer's unfair labor practices. Accordingly, I reject her testimony both as to the reason she sought such revocation and as to the timing of her attempt to effect it. Accordingly, as the proof does not demonstrate that this lawfully executed card was revoked prior to the unlawful grants of the unemployment supplemental benefits and the new floor on profit-sharing losses. I find that the card is valid and counts toward the Union's majority in this pro- ceeding. 26. Elton Farrior (G.C. Exh. 30). Farrior admittedly signed a card during the union campaign. The card in evi- dence which bears his signature is dated February 5, 1975. Farrior testified that after he executed the card, he told union organizers Pope and Washington that he wanted his card back. They indicated that it was too late, that the card had been sent off and that he would get a white member- ship card in the mail. Farrior gave no explanation as to his reasons for seeking the revocation. His testimony as to the timing of this effort failed to reflect a clear recollection. Thus, he initially testified that he thought the day after execution that he attempted to get the card back, and later, when examined as to whether this incident occurred prior to the election, he responded that "I don't remember but I think so." It is true, that the Farrior card was executed after the unlawful establishment of a floor on profit-sharing losses, an unfair labor practice of general impact upon the employees. It is entirely possible, however, that any attempt to revoke came after the February I I announcement of the floor on unemployment insurance. The fact that an em- ployee may have signed a card in the midst of unlawful conduct does not necessarily mean that his subsequent withdrawal of the designation was prompted by other con- siderations. It is entirely likely that specific unfair labor practices have an impact on different employees for differ- ent reasons. and indeed the reversal of interests which un- lawful conduct induces need not necessarily be expressed immediately. Since the Gis.sel doctrine is remedial, the reso- lution of ambiguities concerning issues as to the validit of the union's majority against the perpetrator of untair labor practices is in consonance with the spirit of that decision. With respect to the Farrior card, there being no clear evi- dence that Farrior sought revocation under conditions un- related to Respondent's unfair labor practices, I find that the revocation was ineffective, and that his card supports the Union's alleged majority in this case. l7ommie Parker (G.C(. Exh. 29).' A card is in evidence bearing Parker's signature and dated December 10. 1974. That card was credibly authenticated by Bernice Jenkins. Parker testified that Jenkins. a fellow employee. had been after him to sign a card for 3 weeks. Before he agreed to sign a card, he instructed Jenkins to hold the card, advising that he would let Jenkins know whether to forward it to the Union. Parker claims that after discussing the matter with his parents, both of whom were then employed by the Re- spondent, and about 3 days after he signed, he asked Jen- kins to return the card. Jenkins told him if he wished it back he would have to go to a union meeting to retrieve it. Parker claims that he did so. and that he was unable to get the card back, but that an unidentified individual, repre- senting himself to be a union representative told him that the card would not be used. Although Parker attended the April 1977 meetings conducted by his plant manager in which the means of repudiating signed cards was discussed, and while I have certain misgivings concerning his testi- mony, his account stands uncontradicted, and on balance I am willing to accept it. Accordingly, I find that Parker did attempt to revoke his card prior to any significant unlawful activity in connection with this organization campaign and therefore find that it should not be counted towards the union's majority. 27. Marvin H. Parker (G.C. E. 1.31) Parker, an active employee of Respondent at the time he testified, related that he attempted to revoke his authorization card after learning of the Union's claim to boycott Respondent. No- where in his testimony does he identify when this attempted revocation occurred. While his testimony does not substan- tiate that any such revocation ws attempted n a timely basis, it is also noted that Parker was a thoroughly unreli- able witness, whose testimony, at every, turn, reflected a biased attempt to support the interest of his employer. Not only do I reject his testimony and find that he never at- tempted to revoke his card, but I further discredit his claim that he signed a card without reading it on the representa- tion that it was solely for an election. Although my rejec- tion of his testimony insofar as he attempts to repudiate the validity of his card is based upon other considerations. I note that Parker attended the April 1977 meetings in which Plant Manager Wellons addressed employees concerning the issues in this proceeding. I find that the card executed by Parker consituted a valid designation of the Union which remained effective through February 19, 1977. 28. Garland Hines (G.C. E.rh. 15): Hines was a thor- oughly untruthful employee witness, who acknowledged the execution of an authorization card on request of employee solicitor Jimmy Smith. He further testified that about 3 days after he signed a card he asked that his card be re- turned. In this respect Hines testified as ollows: 430 J. P. STEVENS & CO.. INC. Q. Who did you ask about getting your card back? A. I don't remember. It's been so long. Q. Do you know if it was Jimmy Smith? A. No, it wasn't Jimmy Smith. Q. Do you know if it was one of the union represen- tatives? A. It was one of the union representatives. Q. Do you recall where? A. He stayed in an apartment house in Wallace. Q. You went to the apartment house? A. Me and another boy went. Q. Who was that? A. Bobby Harble Q. Can you describe that union organizer you met with at the motel-apartment house? A. No, I couldn't. Q. You can't remember what he looked like? A. I sure couldn't. This is the entirety of Hines' testimony concerning the iden- tity of the individual from whom he sought return of his card. Under well established Board policy an authorization card is not to be deemed effectively revoked in the absence of notification to the Union or an agent thereof. 68 The testi- mony of Hines is insufficient to substantiate that this condi- tion was met. To find otherwise is to accept the witness' conclusion or belief, though unaided by refutable founda- tion, as to the agency status of an unidentified individual. This is not competent evidence and, accordingly. even if credited the testimony in question. furnishes no substantial basis for invalidating the card. It shall he counted towards the Union's majority in this case. (f) Miscellaneous misrepresentations The Respondent challenges three cards on grounds that the cards were either executed on improper inducements or by individuals possessed of insufficient knowledge to be bound thereby. The issues relative thereto are discussed be- low: 29. William Hennry Herring (G.C. Ex.rh. 406) Herring at the time of the hearing, had been employed by Respondent continuously for a period of some I I years. He testified that he obtained an authorization card at the plant gates then took it home where he put it on the dresser. He claims that his daughter picked up the card, read it, then asked if Her- ring wanted her to sign it. Herring claims to have said, "Sign it if you want to." She did so. Herring acknowledged that the card was completed in his presence and that with the exception of the address, which was entered by his wife, all other handwriting on the card was that of his daughter. Herring testified that he does not read and write too well and that he did not read the card. He indicates that his daughter did so but explains that he was "about half asleep . . and . . . had to work, too." Herring testified that after the card was completed he turned it over to some unidenti- fied individual. Insofar as Herring attempts to imply that he lacked an understanding of the meaning of his daughter's execution of a card in his behalf or that he authorized her to See Slruthers-Dunn, Inc.. 228 NLRB 49 (1977). do so. though not really interested in the Union. he was not believed. I find this card to constitute a valid designation of' the Union which shall be counted toward the Union's ma- jority. 30. Carroll Hunter (G.C. Eh. 413I). Hunter was an in- cumbent employee at the time of the hearing. He testified that he obtained a card at the plant gate. and that ater a meeting he took it home. He relates that after telling his wife "about it" his wife asked if Hunter wanted her to fill it out. According to Hunter he told her it made no difference and that she could do as she wished. His wife completed the card and Hunter picked it up and placed it in the mailbox. Although Hunter indicated that he could read. he claims that he never read the card but knew that it wais a union card. He also indicates that his wife normall\ conducts business for him because she had better handi ritilg. Al- though it is the sense of Hunter's testimon' that he at- tended the union meeting concerning the card, he does not indicate that any representations were made to him incon- sistent with the clear import of the purpose expressed on the card itself." Furthermore. the fact that an emploee man delegate his choice to a close member of' his amils fur- nishes no ground for invalidating otherwise validlx ex- ecuted authorization cards, where as here, the eciplo ee has confirmed and ratified the designation b mailing the card to the Union. The card executed on behalf of Carroll H[unt- er was a valid designation and shall be counted towards the Union's majority in this case.'" 31. Wnda Marie Whaleo (G.C. Eh. .540i.: Whales ac- knowledged that she signed and filled in the authorization card which is in evidence as her designation of the Ltnion. Following this authenticating testimony. Whales engaged in an unbelievable attempt to repudiate her card. She claimed that a fellow employee. Stewart Brown. asked her several times if she wanted to sign a card for the tInion. but that on each occasion she told him that she did not know much about the Union and did not know if she wanted it or not. Brown allegedly then indicated that if she signed a card someone would come by and talk to her about the advan- tages of belonging to a union."' She could not recall whether she signed the card and returned it to Brown. or how long she had it in her possession before doing so. She claims. however, that union organizer Pope subsequently visited her at her home and talked to her after she had signed the card. She indicated that it was her recollection that Pope possessed her signed card at the time of this visit. There is no further testimony concerning what transpired during this confrontation with Pope. Although claiming that she 6 See New York Parieni Aids, In, d/h/a Guardian Amhulance .Seriwce and American 4edical Supplies. 228 NLRB 1127 ( 1977. here cards were round valid notwithstanding that employees estified that the) had not read cards before signing and did not understand were authonzing the Union to repre- sent them, where the Union had not told employees cards were solely for the purpose of obtaining an election. The cards were unambiguous, and empiro- ees knew they were signing a card for the Union. thereby indicating their desire for union representation. 7 The testimony bh Hunter. that he thought that the card had t be igned to enable him to obtain a ticket to attend one f the inplant meetings con- ducted by union representative Mclver under the terms oit the contempt Order. though hardly believable, is nonetheless immaterial " Whaley. first indicated that Brown did nt mention an election to her but then goes on to indicate that he did 431 I)F(ISIONS OF NATIONAL LABOR RELATIONS BOARD signed the card in the interest of obtaining more informa- tion, Whaley denied that she ever read the card before sign- ing it?7 As a final stroke in her testimony, she testified that when she signed the card she had made up her mind, "that I definitely did not want a union." Whaley struck me as a thoroughly unbelievable witness. Her testimony is replete with material contradiction, was implausible, and I was left with the strong feeling that she testified out of' a bias favor- ing the Employer. Although Whaley was not employed at the time of the hearing, she did discuss her appearance with Jack Cottle, Respondent's personnel director of the Wallace plant, and expressed that she was unhappy with the fact that she had been subpoenaed. Having rejected her testi- mony as incredible, I find that her card constituted a valid designation contributing to the Union's majority in this case. (g) Just Jor an election Respondent contests 108 authorization cards as having been procured on representations that they would be used solely for an election. The cards utilized in the campaign were of' the single purpose variety and reflected the follow- ing: TEXTILE WORKERS UNION OF AMERICA Affiliate of the AFL-CIO and CLC (Date) 19 I hereby join with my fellow workers at the mill in organizing a union in order to better our conditions of life and secure economic justice, as is my right under the laws of the United States. To this end I declare that the Textile Workers Union of Amer- ica, AFL CIO and CLC, shall be my representative in collective bargaining over wages, hours and all other conditions of employment. I make this pledge of my own free will in the conviction that the united action of all workers through unions of their own choosing is the way to achieve the liberty of the individual for the benefit of all. Mill Department Name St. and No. City (received by) Shift Phone The keystone for evaluating such representation was set forth in Gissel, supra at 606, as follows: we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly cancelled by a union adherent with words calculated to direct the signee to disregard and forget the language above the signature. 72 When confronted with a statement given to the General Counsel before the opening of the hearing which indicates that upon execution she had read the card, Whaley indicated that she did not "remember" reading it at that time. The individual issues, are examined below: 32. Lavonne Jarman (G.C. Exh. 295): Jarman's card was initially authenticated by a fellow employee, Bernice Jen- kins. Jarman acknowledged that he signed a card and read it before doing so. But later in his testimony he denied read- ing the language on the card evidencing a clear designation. His card is challenged on two grounds. First, Respondent contends that it was executed on the representation that it would be used solely for an election, and second, that he attempted to revoke the card some time prior to the elec- tion. In connection with the alleged representation concern- ing an election, Jarman admitted that he could not recall the exact words used by Jenkins but when cross-examined as to their conversation he stated as fbllows: He just asked me would I sign a card for him and I said, 'what kind of card,' and he said 'so that we can get an election within the plant for the union.' He indicates that he told Jenkins he would sign while ask- ing if there was any obligation. According to Jarman, Jen- kins indicated that there was no obligation. Although Jar- man was no longer employed by the Respondent. I have strong doubts as to his capacity for recalling the precise words used by the solicitor, and did not regard him as a truthful witness. As Respondent's claim that execution of' this card was induced by an improper representation is not based upon credible evidence, Jarman's card shall be counted toward the Union's majority in this case. 33. Lillian Hughes (G. C. Ex.h. 412). Her card reflects that it was executed in November 1974. She indicates that at the time she signed the card, nobody had asked her to do so. She could not recall whether she obtained the card from a union representative who visited her at her home or whether she obtained it at the plant gate. She acknowl- edged that she had been visited at home by union organizer Phillip Pope prior to signing the card. A series of highly prejudicial leading questions propounded by counsel for the Respondent produced the following responses by Lillian Hughes: Q. Did he tell you that the card was to be used only for an election? A. That's right. he said that if they got enough of them signed, that they would be allowed to go in and vote. Q. Did he tell you that the card would be used only for an election? A. It didn't mean that I would be in no union. It just gave them a chance to vote, a chance to get the union in. Q. Was it your understanding that the only thing it would be used for would be to get an election? A. Yes. Later, Lillian Hughes went on to testify that she inquired of Pope as to what the card would be used for because she had 7 Jarman's card is dated 11 5 74. He testified that shortly after execution of the card, he made unsuccessful attempts to retrieve it from Bernice Jen- kins, and also wrote a letter explaining that he had been mislead into signing the card because he just wanted an election and did not wish to become a union member. He received no response from that letter. Jarman's testimony does not permit a finding as to whether revocation was sought prior to Re- spondent's unfair labor practices. Accordingls, there is n basis for cnclud- ing that this revocation was unprovoked by unlawful conduct. 432 J. P. STEVENS & CO.. INC. heard so much talk about it and that she wanted him to explain it to her. According to Lillian Hughes. he ex- plained the good parts that the Union would have and the bad parts that the Company: and he wanted those blue cards signed, to get enough of them to see if they would be allowed to have an election inside the plant." Mrs. Hughes indicated that she did not sign the card in front of Pope. because Pope advised her that no one else would know who signed cards. At the time of the hearing Lillian Hughes was in the employ of the Respondent. The following colloquy between myself and the witness carries some significance to an evaluation of her testimony concerning any improper representation: Q.... Are you now afraid that people now know that you have signed a card? A. Yes. Q. Why are you so afraid? A. I have been under a lot of pressure since Janu- ary. Q. Pressure because of this card? A. No, sir, it is personal. Mrs. Hughes, on cross-examination, elaborated that the good parts about having a union were described by Pope as meaning that the employees would get more money, be treated fairly, and things like that. As her last utterance before departing from the stand, Lillian Hughes expressed the following: I don't know exactly all of it that he talked about. I wish that I have never invited him in the first place in the house. 34. Brenda Hughes (G.C. Exh. 187). Hughes is the daughter of Lillian Hughes. Her card was executed at least 6 weeks after that of her mother. She testified that she in fact induced her mother to sign the card based on Pope's representation that it was just for an election. Her testi- mony concerning her colloquy with her mother is as fol- lows: She [Lillian Hughes] said she in fact was not going to sign it because she was not interested in the Union. She liked things just the way, just the way they was. And I talked to her about it, and I said, 'if it's just to get an election, you can't be doing anything wrong.' And she said, 'you think so?' And I said, 'well, he told you it was just for an election.' And she signed it. And later she even said she signed it because of me. It got her in a big mess. The testimony of Lillian Hughes fails to evidence that she executed the card after such a conversation with her daugh- ter or that any such conversation in fact occurred. Indeed. she denied that anyone asked her to sign the card at the time she did so. Brenda Hughes could not recall signing a card, but acknowledged the signature on GC 187 as her own." She testified that at the time that her mother signed the card Brenda was not eligible to do so.5 *4 Nonemployee organizer Michael Black credibly testified that all entries on G.C. Exh. 187 were made in his presence b Brenda Hughes. *" The basis for her assumption or knowledge that she was ineligible is not established on the record The testimony of Lillian Hughes that she executed a card upon the improper representation that it would be used solelv for an election is, in my opinion, adduced through prejudical leading questions, obviouslk elicited from a ilt- ness ill-at-ease with her role as a witness whose prior con- duct might not receive her employer's hlcssing. I find her testimony in this respect incredible. I am con,inced that Mrs. Hughes was told nothing inconsistent s, ith the clear and ambiguous purpose expressed on the card , hich she signed apparently after some deliberation. With respect to the testimony of her daughter. I regarded Brenda Ilughes as a unreliable witness. willing to resort to contri ance to protect her mother from undefined pressures, hich despite her denial, in the context of Lillian Hughes' testimony. I find to have stemmed from execution of a card. Further- more, while Brenda Hughes could not recall the circum- stances surrounding her execution of a card. that which vas credibly authenticated bearing her signature was dated January 16. 1975, one week after the preelection hearing in Case I RC 3987. I consider it improbable and unbeliev- able that Phillip Pope, with all his experience. would during that time engage in a meaningless exercise to obtain signed cards on a "just for an election" type inducement. I ind that there is no credible evidence to substantiate Respon- dent's contention that either Brenda Hughes or Lillian Hughes executed their cards for a purpose other than that which is clearly expressed on the face thereof. Their desig- nations shall be counted toward the Union's majority. 35. Ricky Andrews (G.C. Exhs. 54) and 36 a Nal'C Andrews (G.C. Exh. 53). They are husband and wife. Ricks Andrews did not identify where he obtained his card. hut indicated that he read it, and asked his wife to sign it for him. The sole basis for any challenge to the validity of this designation, rests exclusively on his testimony that he un- derstood that the card would be used solely for an election. Andrews did not identify the source or origin of this un_.r- standing. In accordance with established precedent. the subjective intent or understanding of the signatory is not ground for invalidating an unambiguous authorization card. See J. P. Stelens Co., Inc., Gullislon Di. . N. L.R.B. 441 F.2d 514 (5th Cir. 1971). Nancy Andrews authenticated her card. and indicated that she read it before signing it. Nonetheless, in response to leading questions by Respondent's counsel Andrews indi- cated that she understood that the card would be used onls for an election and that someone had told her this. An- drews, however, could not identify the source of that repre- sentation. She could not even recall, with certaint. that such a statement was made by the person who gave her the card. At best, from the Respondent's point of view, the testimony of Nancy Andrews, merely establishes an under- standing derived from "scuttlebut." and considering the un- certainty of her recollection, and the vagueness of her testi- mony. no improper remark may be attributed to a solicitor or agent of the Union. I find that the cards executed by Nancy and Ricky Andrews constitute valid designations of the Union, and they shall be counted towards the U nion's majority in the proceeding. 37. Bett' Jean Baker (G.C. Exh. 164). Baker. at the time of the instant hearing. was in the active employ of the Re- 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent. She confirmed the authenticity of the card in evi- dence hearing her signature. The challenge to her card is based exclusively upon a series of highly leading questions propounded by counsel for the Respondent which is set forth in its entirety below: Q. Did a man named Louis Washington. ever call on you at your home? A. Yes. Q. Did he ask you to sign a card? A. I don't remember if he asked me to sign one or not. Q. Did you sign more than one card? A. I don't know. Q. You don't recall? A. No. Q. Did Mr. Washington talk to you about what the card would be used for? A. He talked about somethings, but what he talked about I can't remember. Q. Did he talk about an election? A. Yes. Q. What did he tell you about an election and that card? A. That they had to have so many cards signed be- fore they could have an election. Q. Did he tell you that the card would be used for anything else? A. No. Q. Did he tell you that the only thing that the card would be used for would be to get an election? A. I don't think he did. Baker testified that she read the card before signing it, and there is nothing in her testimony suggesting that Washing- ton did anything rescinding or inconsistent with the clear and unambiguous designation of the Union as her bargain- ing agent which appears on the face thereof. Under estab- lished board precedent, as well as the guidelines set forth in N.L.R.B. v. Gissel, supra, the above furnishes no substantial grounds for invalidating her card. Accordingly, it shall be counted towards the Union's majority. 38. Dorah N. Batchelor (G.C. Exhs. 229) and 39 and Ro- land Batchelor (G. C. Exh. 230). They are husband and wife. Both were still employed by Respondent at the time of the hearing. Both signed cards upon solicitation by union orga- nizer Phillip Pope. They attended the speech given by Mr. Shelton in April 1977 concerning this proceeding and the Union's attempt to get into the plant through authorization cards. Dorah Batchelor testified that at the outset of her conversation with Pope, she told him that she was not inter- ested in the Union, expressing a belief that her son had been fired because he signed a card for the Union. The Batchelors. at the time they signed cards, were of a view that the Union could get into the plant only by winning an election. Roland Batchelor, who followed his wife to the witness stand, testified in shotgun fashion that he was told by Pope that the card would be used to get a vote, and that Pope did not express that the card would be used for any other purpose. It was also plain from his testimony that he changed his mind concerning the Union, and at the time that he executed a card, he wanted the Union to come in. He attributed this earlier attitude as borne of a "lack of sense." As for Dorah Batchelor, at one point in her testi- mony she did testify that Pope indicated "that the card would never be used for anything else besides the election, and that he would be disqualified in twelve months." Though the Batchelors impressed me as basically honest people, their testimony impressed me as influenced by a concern for their vulnerability were they to afford esti- mony supporting the Union's interest in this proceeding? Neither impressed me as having the clearest recollection of what was said by Pope. Perhaps the closest approximation of what transpired was bared early in the examination of Dorah Batchelor by Respondent's counsel, when she testi- fied as follows: Q. What did Mr. Pope tell you that the card would be used for? A. About the same thing. Q. Tell us as best you can recall what he said? A. That is what I remember, that it was for an elec- tion. Q. Tell us what you remember? A. I can't remember exactly the words that he used. Q. As best you can, what did he tell you? A. He came in, and stayed a long time, and talked to me, and talked about signing the card, but I still can't remember the exact words that he used. Q. Did he say anything that led you to sign that card? A. Yes. Q. What did he say? A. He said that our working conditions would be better and all like that. Q. Did he mention an election? A. Yeah. Q. What did he say about an election? A. He said that the only way that they would get in would be through an election and if "enough of us signed a card to bring an election in." Q. Did he say anything else about that card? A. Well to the best of my remembrance, I can't re- member exactly what he said. In my opinion assessment of the Batchelors' union designa- tions is to be judged exclusively in the light of the above testimony. It was the first attempt by either to explain fully what occurred in their meeting with Pope. I find nothing therein" which is inconsistent with the designations on the card and shall count their cards toward the Union's major- ity in this case. 40. Ella T. Batchelor (G.C. Exh. 55). At the time of the hearing Dorah Batchelor had been employed by the Re- 7 Charles Epley is the son of Dorah Batchelor. In 1972, the Second Circuit Court of Appeals found Respondent in contempt of prior decrees. The dis- cnminatory treatment afforded Epley supported the Court's determination in this regard as outlined at N.L.R.B v. J. P Stevens & Co.. 464 F2d 1321. 1344-45 (2d Cir. 1972). " Although Mrs. Batchelor testified that she did not read the card, her further testimony that she signed reluctantly in view of her son's discharge. and made all entries thereon, rendered her testimony in this respect unbeliev- able. 434 J. P. STEVENS & CO., INC. spondent for more than 9 years. The challenge to her card was opened through the colloquy between Batchelor and Respondent's counsel as set forth below: Q. What did she sa3 to you when she gave you this card? A. I don't remember. Q. Did she discuss using the card for an election? A. Yes. Q. Did she say that the sole use of the card would be to get an election at the company? A. Yes, that was the understanding that I got. Q. Is that what she said to you? A. She said it wasn't a membership card. Q. It was not a membership card? A. That's I igh t. Q. And that the sole purpose of it was to get an election? A. Yes. The testimony by Batchelor that she executed a card on the representation that it would be used just for an election is discredited. She was a witness who obviously labored under a faint capacity for recollection. The asserted improper rep- resentation was extracted through highly prejudicial lead- ing questions. She was unreliable in other respects as well.T7 As there is no substantial credible evidence supporting the claim that this card was improperly secured, it shall be counted toward the Union's alleged majority in this case. 41. Debra Ann Blizzard (G.C. Exh. 232). The challenge to her card is based solely upon her testimony that she was told at the time of signing, "that they needed so many cards to get an election, to have an election." and that she was not told that the card would be used for any other purpose. She admittedly read the card, and understood at the time of signing that a union could not get into the plant without an election. Under established board precedent, the statement she imputes to the unidentified solicitor does not constitute an inducement inconsistent with the purpose of the card clearly expressed thereon, and furnishes no substantial grounds to invalidating her designation. It shall be counted toward the Union's majority in this case. 42. Bobby D. Boney (G.C. Exh. 50): Boney was an in- cumbent employee at the time of the hearing. who declined to disclose the identity of the employee who had given him the card, stating "he didn't have anything to do with me signing it he just gave it to me and it was just up to me to ' A significant number of witnesses testified that though they completed their card in its entirety they did not read them. Ella Batchelor was one such employee. In her case. the initial denial was subsequently qualified by her expression that she did not "remember" reading it. I was suspicious generally as to the honesty of those who testified that they did not read cards before signing. A pattern existed whereby witnesses who could recall little of what transpired when they signed their cards. clearly could recall that they had not read them first. I did not believe this testimony and considered it unlikely that during this campaign of some 5 months during which cards were dis- seminated by employee organizers at the plant gates, through the mails. and on home visitations, cards were not read prior to signing despite their obvi- ous importance to the controversial issue of whether a union would represent employees at the Wallace plants. Regrettably. from having observed the witnesses and heard the repeated false ring of such testimony, it was defi- nitely not my impression that this particular pattern of untruthfulness was either spontaneous in origin or attributable to coincidence. sign it or not to sign it." He went on to testify however, that this individual stated in giving him a card that Boney would "be under no obligation" if I signed the card and that "it'd be kept under strict confidence." When examined by Respondent's counsel as to whether this individual said anything about an election, Boney indicated that "he said he wanted to get enough of those cards signed to see if we could get an election to see if the Union could come in or not." Although Boney initially testified that the foregoing was the sum total of what was the solicitor's comment con- cerning an election, apparently dissatisfied with this re- sponse, Respondent's counsel went on, as follows: Q. Did he say the card would be used only for an election? A. He said only for an election. Boney's testimony concerning the only for an election representation was disbelieved as a byproduct of prejudi- cially leading examination. It is my assessment, that his earlier expression as to what the solicitor said concerning the election was accurate and complete. This, under estab- lished precedent, did not constitute a representation incon- sistent with the designation on the face of the authorization. As for the statement Boney imputes to the solicitor con- cerning the lack of obligation in signing a card, this was left undeveloped except to the extent that Bone) expressed his "understanding" that "there wouldn't be nothing after it, I wouldn't have to be sitting up here now." It is a fact that execution of an authorization card, of the type involved here, does not impose certain obligations, including those of union membership. The testimony concerning a remark by a solicitor that the card imposed no obligation was too vague to constitute a ground for invalidating Boney's card. It too shall be counted toward the Union's alleged majority. 43. Julia P. Bostic (G.(. Ehs. 228) and 44. and JoAInn Piner (G.C. Exh. 492) They are sisters. Both testified that they signed cards at the request of union organizer Phillip Pope. They claimed that they did so on his representation that execution of the authorization card was simply to show that the signer wanted an election. Both admit that Pope discussed the benefits a union would seek on behalf of em- ployees if it got in. They testified that Pope, when they signed, prepared a written document at the request of JoAnn Piner's husband. Bostic testified that this document recited that the sole purpose for which the cards were signed "was not that we were in the Union or ever were or would be in the Union but just so an election could be held." Piner could recall nothing in this signed statement other than an expression that by signing they did not be- come union members. Though both Piner and Bostic ex- pressed the belief that this document existed, and indeed, Piner indicated that her husband had informed her that it was in a file cabinet, the document was never produced." Bostic, though not an employee at the time of the hear- ing, was an unimpressive witness. Her testimony that she did not read the card, though completing it in its entirety, as well as her testimony that she did not know at the time that she executed the card that an election had already been scheduled, struck me as highly suspect. ' It is noteworthy that prior to the instant hearing. in an interview with the General Counsel, the document in question was discussed. 435 DIECISIONS OF NAI IONAL LABOR RELATIONS BOARD Piner was an incumbent employee at the time of' the hearing. The testimony of Bostic and Piner that Philip Pope told them that the card simply evidenced their interest in an election was incredible. From my observation of Pope throughout the hearing, and upon examination of his testi- mony, it is noted that while not totally accurate his exten- sive testimony struck me as that of an experienced orga- nizer, who was neither dishonest nor stupid. The cards executed by Bostic and Piner are dated February 3, 1975. respectively. At the time of their execution, the election had been scheduled and publicized by various means. Indeed, on January 28, 1975, Gordon Walker, general manager of the Holly and Carter plants made a prepared speech to employees, the third paragraph of which was as follows: On Wednesday, February 19, as you have probably already heard, an election is going to be held here, so that you may all have the opportunity of' voting as to whether vou do or do not want to bring the Union into these plants. Bostic and Piner did not impress me as unintelligent. I cannot believe that they did not know, at the time that they executed their designations, that they were completely un- necessary to the conduct of an election and that one would be held no matter what they did. s0 It simply struck me as implausible that they would have signed a card on the rep- resentation they impute to Pope. In any event I simply do not believe that Pope, with the election only 2 weeks away. would have engaged in such a self-defeating, transparent attempt to mislead, particularly to Piner, who in all proba- bility had expressed her support for the Union."' I discredit the testimony of Bostic and Piner insofar as it suggests that they signed under any improper representation concerning the election, but do find that they were both told and pro- vided a written document to the effect that execution of a card did not make them union members. As there is noth- ing improper in such an expression. I find that cards ex- ecuted by Bostic and Piner constituted valid designations and they shall be counted. 45. Dorothy Bowden (G.C. Exh. 148) and 46 and James M. Bowden (G.C. Exh. 149): They are husband and wife. Although their cards are dated January 24, 1975. and Janu- ary 23. 1975, respectively, Dorothy Bowden claims that she and her husband signed at the same time.82 According to her testimony, the cards were solicited by Louis Washing- ton, who discussed the benefits of union representation and his own progress as a union member, and with respect to the authorization card, stated "it wouldn't mean that I would ever be a member or have to be a member, that I wouldn't have to participate in any union organizational activities; it was only to help hold the election in the mill." Mrs. Bowden testified that she did not read the card, first indicating that she "just signed the card, and that was it," but then going on to admit that she placed all the informa- tion on the card. Mrs. Bowden attended the speech and a1 Piner admits that she knew at the time of signing hat an election was scheduled. s Piner admittedly was for the Union when she signed her card. 12 James Bowden did not testify. His card was authenticated initially hy union organizer Louis Washington. group meetings presided over by Shelton in April 1977. It was the sense of her testimony that she was opposed to the Union at present. as well as at the time that she signed the card. Yet, while admitting that Washington was in her home on that occasion fbr 45 minutes, and that she had the opportunity to read the card, she insists that she made all entries on the card, without reading its content. The misrep- resentation ascribed to Washington by Dorothy Bowden was not inconsistent with the purpose expressed on the face of the card, and her testimony that she did not read it, fits a pattern of highly suspicious incredible testimony offered by employees to repudiate their cards. Her testimony in this respect was not believed, and I find that the cards of Doro- thy and James Bowden constituted valid designations and they shall be counted toward the Union's majority in this case." 47. Peggv Bradshaw (G. C. Exh. 215) and 48. and 71iomas Bradshalw !(C. Ex.rh. 214). They are husband and wife. Both were actively employed by the Respondent at the time of the hearing. Peggy Bradshaw attended the speech given by Shelton in April 1977 which touched on testimony to be given in this proceeding. 4 She testified that at the time she signed the card she "skimmed over it." She also testified that she previously had seen a union card but also skimmed over that one. As for the solicitor, she testified that she was told the card "would be for an election, to get the percent- age that they needed." She claims that she was not told by the organizer that it would be used for anything else. Thomas Bradshaw acknowledged signing a card at the same time as his wife. He testified that the organizer did not discuss the benefits that the Union would seek on behalf of employees, but stated that the card would be used to help get an election and that a certain percent had to sign before you can have an election. Thomas Bradshaw denied that he read the card but acknowledged that at the time of signing he knew that it was a union card, and that the Union could not get into the plant without an election. Like his wife he made all entries on the card. He claims that before signing his card he picked up one at the gate but did not read it, and then his testimony assumed a shifting course when he went on to explain that the card was attached to a leaflet which was put in the car for him, but which he declined to take. Here again, the representation ascribed by Peggy and Thomas Bradshaw to the union organizer was not inconsis- tent with the clear purpose expressed on the face of the card. Their claim either that the card was not read or that it was merely skimmed over, had the familiar ring of the pat- tern of contrived testimony which was rendered by other unimpressive witnesses seeking to nullify their union desig- nations. I find them valid and both shall be counted. 49. Charlie T. Brinson (G.C. Exh. 49). Brinson was an incumbent employee at the time of the hearing. Respon- dent's Exhibit 5 is a questionnaire completed by Brinson for 1 Dorothy Bowden at the time of the hearing was an incumbent employee of the Respondent. In addition James M. Bowden appears on the current list of employees furnished by the Respondent and in evidence as Resp. Exh. 15(b). " It is not without significance that homas Bradshaw testified that he could not remember whether he attended such a meeting. though conducted only 3 months before he testified. 436 J. P. STEVENS the General Counsel as part of the latter's preparation for trial. That exhibit was rejected and placed in the rejected exhibit file on grounds that it was cumulative. Having re- considered that ruling, I find that my ruling was in error. and accordingly that document is hereby received. Brinson acknowledged that he signed a card and made all entries thereon. He testified that he started to read the card before he signed but that he only read it in part. Nei- ther through the substantially leading nature of questions propounded by Respondent's counsel, nor in his prehearing questionnaire given the General Counsel, did Brinson indi- cate that he was told that the card was to be used solely for an election or for any purpose inconsistent with the terms thereof. One need not read much of the card to be altered to the fact that it was for the purpose of "organizing a union." Brinson conceded that he could not recall everything that was said by the union organizer on that occasion. I find that this card constituted a valid designation and it shall be counted towards the Union's alleged majority in this case. 50. Alvis Ray Brown (G.C. Erxl. 258). Brown an incum- bent employee at the time of the hearing, testified lthat lie signed the union card at the urging of Phillip Pope. Brown claims that Phillip Pope told him that "he had to get a certain percentage of the cards signed to have an election." According to Brown Pope did not indicate the card would be used for any other purpose." Brown indicates that he probably read the card but could not remember whether he had. The evidence does not substantiate a representation by Pope inconsistent with the clearly expressed purpose on the face of the card, and the challenge to the card is not sub- stantiated. It shall be counted toward the Union's majorit> in this case. 51. tHubert H. Brown (G.C. Exh. 227): Brown testified that he was solicited to sign a card by union organizer Phil- lip Pope. 6 In describing his conversation with Pope, Brown testified that he "said mostly for the election, to see if the Union would come in Stevens, if it would go for Stevens or for the Union." He was led to testify that Pope did not tell him the card would be used for anything else. On cross-examination it developed that Pope's visit to his home lasted I and I- 1/2 hours. Brown then portrayed their discussion as centering upon a disagreement, with Pope ar- guing as to what benefits the Union could obtain for em- ployees, and Brown countering with his opposition to the Union. Brown denied on direct that he read the card before signing, but admitted that prior to signing he received a card at his house, claiming that in this instance he threw it into the trash can after seeing it was "union." Indeed, Brown asserted that the card he signed at Pope's request was not even known by him to be "a union card." Brown, who at the time of his testimony was employed by another mill, struck me as an unimpressive witness bent on aflord- ing improbable testimony tailored to serve the interest of "' Counsel for the Respondent, as was the practice with innumerable wit- nesses, elicited this information through a leading question. It is noted that such testimony is not regarded as sufficient to reflect an improper representa- tion and is materially distinct from a clear statement by a solicitor that the card would not be used for any other purpose 6 Brown was apparently employed at the outset of the instant hearing. hut terminated on July I. 1977, prior to his estimony. His name appears on Resp. Exh. 15(b). 437 his former employer. I discredit him and find that the chal- lenge to his card is unsubstantiated. It shall be counted towards the union's majority.' 52. I.ois Broswn (G.C. Exh. 750). Brown was an incum- bent employee at the time she testified. She indicates that she signed General Counsel's Exhibit 750 and that the handwriting appearing threon was entirely her own. She claims that she was given the card by a fellow employee. Alvin Smith. She testified that. before she signed. Smith asked her to do so eer day. She claims that she did not read the card before signing, but acted upon the explana- tion of' its meaning given by Smith. Insofar as I credit the testimnony of Brown. I find that Smith told her she would be a fool for not signing the card "because it meant more money and more conditions." It is also possible that Smith went on to indicate that the card would be used for an election. side from this I discredit Brown's testimony that she did not know that by signing the card she was helping to bring the Union in the plant. that she signed the card because she was tired of being harrassed and aggravated by solicitors. and that she did not read the card before com- pleting it in its entirety. I find that the challenge to her card rests upon incredible testimony. and that it constituted a valid designation of the 1Union. 53. She/hY Brown (;.(' . Eh. / 7'5. Brow n was an incum- bent employee at the time of' the hearing who testified that she directed an unidentified individual to complete a card tor her. This occurred at a hog killing. apparently a form of celebration in rural communities. which was attended byv about 20 people. At the time union organizer Louis Wash- ington was present discussing the benefits of unionization. and seeking designations from other Stevens employees in attendance. She claims that about 10 others signed cards on that occasion. She admits thai Washington had no direct conversation with her. but claims that she agreed to desig- nate the U:nion, because she heard him say "that if we signed the blue card that it was just to get an election in the plant. that it couldn't hurt us." She testified that befbre signing she had seen many cards, but had never read one. In this connection. she also testified that Bernice Jenkins, one of the principal employee organizers. had talked to her all the time about the Union. hut never asked her to sign a card. " It was my impression that the statement Brown im- putes to Washington was not actually made, but rather, that she was relating an understanding. perhaps implanted during the April 1977 meetings conducted by her plant manager. which she attended. I find that Brown authorized the execution of a card in her behalf, and that she did so unprovoked by any improper representation. The card shall be counted towards the Union's majority in this case. 7 The card in question bears the date of "January 23. 1974." Absent an effective challenge thereto. and considering the probabilities supported by other facts of record, it is Interred that Brown misdated his card, and that it was actually intended to reflect "January 23. 1975." It is not insignificant that at that time the effort on the part of the Union to obtain signed autho- rization cards had been in continuous progress for a period of 4 months. ,8 Louis Washington intiall) identified the card of Shelby Brown and he testified erroneously that her signature aippeired thereon. I would note in this connection. unlike instances where I hase credited Louis Washington, his testimony Aisas unaided hb .i "contact card" which normally was com- pleted at a time reasonably contemporaneous with execution of authoriza- tion cards. and which was the tpe of document used as a memory refresher bh noinemployee organizers testifying at this hearing DFECISIONS OF NATIONAL LABOR RELATIONS BOARD 54. Ronnie Burnev (G'.C Exh. 351): Burney was an in- cumbent employee at the time he testified. He acknowl- edged that he signed the card given him by a fellow em- ployee, describing the circumstances under which he executed it as follows: I got this card from a guy that works at Stevens at the time when I was coming in. I was working on the sec- ond shift from 4 to 12 that night: and one of the guys that worked at Stevens on first shift, he gave me the card. I looked at him, at the time the shift was chang- ing, but I didn't read it; but I did know kind of what it was about; but I went ahead and filled it out and later on I read it. fie told me that in order for us to get a union, in order for us to vote, that we had to sign up enough of these blue cards in order to get a vote for the Union. The only evidence supporting a challenge to this card is derived from a highly leading examination on the part of counsel for Respondent, which appears in the record as fol- lows: Q. (By Mr. Geddie) Someone told you that you would have to to have enough cards to have an elec- tion? A. Right. Q. (By Mr. Geddie) Did anyone tell you that the sole purpose of this card would be to get an election? A. Yes, Ray Anthony. Q. Was that your understanding when you signed the card? A. Yes, Ray Anthony, he said that in order for us to get an election for the Union that we would have to get enough blue cards in, that is what he told me. B At various stages of the instant hearing, counsel for Re- spondent was warned by the undersigned that he was not to lead witnesses with respect to the magic words "just for an election." It was my expressed position that fraud in the inducement was an affirmative defense, beyond the scope of direct examination limited to authentication of cards by employee signers. Counsel was repeatedly cautioned that it was my impression, considering the entire circumstances, that such an examination was not calculated to elicit truth, but to impeach cards on the basis of trickery. Not the least of the reasoning underlying my conclusions in this regard is the liklihood that the leading of incumbent employees would produce responses favorable to company counsel. and would in all probability evoke subjective interpretation of what was said, rather than words actually used by the solicitor. Burney's testimony as a whole substantiates these misgivings. Testimony of employee witnesses attests to the generally held knowledge during the organizational cam- paign that J. P. Stevens would not voluntarily recognize the " The gaps appearing in the above testimony involved the deletion of objections and rulings only. Otherwise the excerpt is a continuous reproduc- tion of the exchange between counsel for Respondent and Burney. Union on the basis of a card check but that if collective bargaining were to commence, an election would be neces- sary first, and a union victory second. Burney had three opportunities during his examination to express his version of what was said by the employee solicitor. In each of those instances, Burney specifically indicated that the statements concerning the election were perfectly consistent with the designation appearing on the face of the card, and reflected an inducement which would only appeal to one willing to throw his support to the organizational effort. The result produced by Respondent's leading, was seemingly inconsis- tent with these perfectly legitimate expressions by the em- ployee solicitor when in fact the witness' overall testimony as to what was said shows that it was not that at all. Here, as in other instances, the leading of card signers was not calculated to elicit what was said to Burney, but at best from Respondent's point of view, to elicit the witnesses sub- jective understanding, or indeed, an argumentative re- sponse. I find that Burney's execution of this card was not improperly induced, and it shall be counted toward the Union's majority. 55. John Henry Carr (G.C. Exh. 355): Carr was an in- cumbent employee of the Respondent at the time he testi- fied. He asserts that he obtained a card at the mill, carried it home, and asked his wife to complete and sign it for him. The sole basis for the challenge to his card is derived from the following colloquy between Carr and counsel for the Respondent: Q. Can you remember what this person who gave you this card told you what it would be used for? A. Yeh, I believe that he said it would be used for a union, the Union coming in the plant. Q. Did he tell you that it was for the Union to get an election? A. I am sorry? Q. Did he tell you that it would be used to get a union election? A. Yes, he did. Q. Did he tell you the sole purpose of the card was to get a union election? A. Yes. Q. Did he tell you then that they had already signed up a majority of employees? A. Yes, sir, they did. Respondent not suprisingly omits this card from the many specifically challenged on the basis of an improper repre- sentation concerning the election. It is contested solely on grounds that a fraudulent misrepresentation was made as to the union's majority support. That issue is controlled by the following statement appearing in N.L.R.B. v. Bover Broth- ers, Inc.. 448 F.2d 555, 562 (1978): Misrepresentation that a majority of employees had already signed authorization cards does not in every case require invalidation of a card signed in reliance thereon . . . such a misrepresentation is fatal only where it is a means of coercing the employee through fear of majority reprisal. Ocitations omitted] 438 J P. SF1 VENS & CO.. IN(C First, although the Iinion may not have attained majority status in this large unit as of ) December 19. 1974. the date on which Carr executed his designation. ('arr clearlx did not act on such a claim. ' Second. there is no suggestion whatever that the claim of majority was made against a background of prounion coercion. Accordingl,. this card constituted a valid designation, and it shall be counted toward the Union's alleged majorit. 56. David Lee (arter (G.C. Exh. Ill) I nd 15 and Man Smith Carter i.C. Exh. 113): They are husband and wile. At the time of the hearing both were employed b J. P. Stevens. Mary Smith Carter made the informational entries on both cards whereupon she and her husband added their signatures. I discredit the testimony of the Carters that the, signed cards on the representation that it would be used only for an election.' David Lee Carter had a limited ca- pacity for recollection, and his testimony struck me as an argumentative attempt to serve his employer's interest in this proceeding. I discredit Mary Smith Carter insofar as she confirms the testimony of her husband as to what was said by the union organizer. Her testimony that she did not read the card fits a customary pattern of unbelievable testi- mony.92 She testified that she changed her mind about the Union after the election, and it was my impression that her attempt to repudiate her designation was in an attempt to implement this change in attitude, perhaps, aided by ideas implanted through her attendance at the April 1977 meet- ings conducted by Plant Managers Shelton. The cards ex- ecuted by the Carters were not shown by any credible evi- dence to have been improperly induced, and I find that they were valid designations, contributing to the Union's alleged majority in this case. 57. Janet Cartwright (G.C. Exh. .?58). Cartwright was ac- tively employed by Respondent at the time of the hearing. The sole basis for the challenge to her card was derived from her following exchange with counsel for Respondent: Q. What did he say to you with regard to the union card? A. We talked about 20 or 30 minutes and mostly he asked a lot of questions: a lot was said: I don't remem- ber everything. Q. All right. Was this the first time that he had been by to see you? A. Yes, sir. Q. Did he tell you that signing the card was only for the purpose for obtaining an election so that every- body could vote? A. Yes sir. I am unwilling to accept Cartwright's response to this lead- ing question as a credible indication that an improper rep- 1 Carr testified that he signed the card "because I wanted a union if it would do what it would say that it would do." 9 I am convinced that Mary Smith Carter was in error in identifying Phillip Pope as the union organizer who visited her home and who allegedly made such a statement. 9n In this connection Mary Smith Carter testified that she obtained cards at the plant gate, carried them home, completed one for herself and one for her husband and after they were signed, placed them in the mail It is her testi- mony that through this entire process she did not read the card. David Lee Carter also is discredited insofar as he denied reading the card before sign- ing. resentatlion concerning the election was made. The inipro- priet in that form of examination and ni i cles that the responses thereto were untiorth, of, credence has been ex- pressed heretofore. Respondent's claim that ('artwright's execution of this card was improperly induced was unsubh- stantiated by credible evidence, and it shall be counted toward the Inion's majority in this case." 58. Jamex ,. (' arlenaugh ((C.( EFsh. I,4).' ('avenaug h was an incumbent employee at the time of the instant hear- ing. He testified that when he signed his card. he was told that it would be used "so they could have an election inside the plant." He further testified that he was not told that the card would be used for any' other purpose. Although C(ave- naugh testified that at the time of signing he ldid not read the "fine" print on the card, he indicated that the union organizer told him that it was a "union card." ('asenaugh first admitted then denied that he had previously read cards which he had not signed. He acknowledged all handwriting on General Counsel Exhibit 184 as his own. It was dated January 28. 1975. almost 5 months after commencement of the campaign to secure signed authorization cards. Further- more, the election had already been scheduled at that time,. and it is not insignificant. that general manager Walker in giving a speech on that very date, expressed the view that it was probably common knowledge that the election would be held on February 19. 1 did not believe Cavenaugh's tes- timony that he did not read a card before signing, and in other respects his testimony furnishes no substantial basis for rejecting his card, it shall he counted toward the Union's majority. 59. Hershal W Cavc'enagh (G.C. E.vh. 5O): Cavenauttgh was actively employed by the Respondent at the time of the hearing. Hie testified that he signed a card at the request of employee organizer Bernice Jenkins. According to Cave- naugh, Jenkins asked him to sign on 2 or 3 different days and on the third day he read it and signed. Cavenaugh specifically expressed that Jenkins told him that "after enough people signed them, they had to get enough signa- tures on the cards to have an election." While this state- ment was consistent with the clearly expressed designation appearing on the face of the card, in later portions of the examination, an attempt was made to alter the representa- tion into something quite different. Thus. a colloquy be- tween Cavenaugh and Respondent's counsel reflected the following: Q. Did he say the only thing it would be used for would be to get an election? A. Right. For reasons heretofore expressed, I find that this prejudicial form of examination produced results unworthy of cre- dence, and failed to substantiate any improper representa- tion. I find that this card constituted a valid designation *l Cartwright indicated that she thought she read the card before signing. Her testimony that she signed the card as a gesture of courtesy to a union organizer who had spent his time discussing the ssue with her is merely reflective of her subjective state of mind and does not constitute a basis for invalidating her card. See Federal Alarm. 230 NLRB 518 (1977) (Marsteller): N L R v s WKRG-TI'. Inc, 470 F 2d 1302. 1318 15th Cir. 1973). 439 DI ('ISIONS ()1 NA IONAL L.ABOR R.A'(IONS BOARI) and it shall be counted toward the Union's alleged major- ity.w 60. Williamn (C, (lrk, Jr. ((;.C. E'-t. 75).' Clark at the time of the hearing was an active employee of Respondent. He testified that he signed the card at the request of an unidentified individual, who visited him at his home. He indicated that the solicitor told him that the purpose of the card was to get an election. He indicated that he was not told that the card would be used for any other purpose. On cross-examination Clark admitted that at the time he signed he knew that there had to be an election before the Union could come into the plant, that the solicitor told him that if the Union were to get in, it would improve his working conditions, and that he was working for the Union and that he was trying to get people to sign cards to help get the Union in. Clark testified that he did not think that he had read the card before he signed it. It is noted that at the time Clark signed his card the union election had already been scheduled. Paulhus testified credibly, without contradiction, that all entries made on the card were in the handwriting of Clark. The latter afforded no explanation as to what had made him think that he had not signed the card. ('lark attended the meeting addressed by his plant manager in April 1977, but seemed to have little recollection of what transpired on that occasion. To the extent that Clark denied reading the card he is discredited and as it is my conclusion that this card was executed without any proper inducement, it shall be counted toward the Union's alleged majority. 61. Martha Cobia (G.C. Exh. 114). Cobia was also an incumbent employee at the time that she testified. Cobia also indicated that she did not read the card that she signed.9 She stated that the solicitor of the card told her "he was going around trying to get enough people to get an election in J.P. Stevens." She goes on to indicate that he did not tell her that the card was for any other purpose. Cobia was an untrustworthy witness who seemed too willing to respond at every turn in a fashion supporting Respondent's interest in this case. In many of these instances her re- sponses were implausible and did not have a ring of truth. I discredit her and find that she executed the card without improper inducement, and it shall count toward the Union's majority. 62. Willie Coston (G.C. Exh. 110): Coston was employed by Respondent at the time he testified. Coston claims that he was visited at his home by an unidentified union repre- sentative who told him that the card would be used "for an election." Coston on direct examination and in response to a leading question, indicated that the union representative did not tell him that the card would be used for any other purpose. He, as was true of so many other incumbent em- ployees seeking to repudiate cards testified that he did not read it before signing.9 Coston attended the April 1977 meetings relative to this proceeding presided over by his plant manager. On cross-examination Coston admitted that " Although not necessary to the result, I also did not believe Cavenaugh's testimony that Jenkins, in his three efforts to obtain a signature, at no time talked to him about the Union, discussed benefits, or working conditions. 9 Here again all handwriting on the card was admittedly that of Cobia. " Union organizer Raymond Paulhus credibly, without contradiction. tes- tified that except for the name of the Company, all entries on G.C. Exh. t10 were made by Coston. he knew at the time that he signed that the Union could not come into the plant without an election, that he knew that the union representative who visited him worked for the Union and wanted to get the Union in the plant, and that that was the reason he wanted to get an election. I do not believe Coston's testimony that he did not read the card at the time he signed, and find that there was no improper representation made to him by any union representative. Accordingly, his card shall be counted toward the Union's majority in this case. 63. Cllie Crontartie (G.('. Ehs. 582) lnd 64. Jesse Cro- martie (G.(C. Eh. 583): Callie Cromartie was an incumbent employee of Respondent at the time she testified. She iden- tified her own and the card of her father. Jesse. Miss Cro- martie relates that she completed and signed a card on be- half of her father at his request. 7 Cromartie claims that she obtained the card from an unidentified union organizer, but she could not recall what he said concerning an election. Cromartie claims that she told her father that the card was going to be used to get an election. The testimony of Cro- martie does not substantiate that any union official, agent, or solicitor, ever made a representation cancelling the clear expression on the face of the card. which Cromartie admit- tedly "glanced over." The record does not substantiate that Jesse Cromartie, before authorizing his daughter to com- plete a card on his behalf, did not have occasion to read such card. Accordingly. both cards are deemed validly ex- ecuted and shall be counted towards the Union's alleged majority. 65. Nellie P. David (G.C. Exh. 37): Davis was an incum- bent employee when she testified. She could not recall all that was said by the union organizer at the time she signed the card but did specifically assert that he told her that "if they got enough signed that it would be to get an election." Accepting Davis' testimony in this regard, such a comment is not inconsistent with the expressed designation on the face of' the card and constitutes no valid ground for reject- ing it. Her card shall be counted toward the Union's alleged majority in this case. 66. Betal English (G.C. Exh. 376): English was an incum- bent employee at the time of her testimony. She related that she signed and completed a card but did not date it. In this latter respect she clarified that the date was on the card at the time she received it, and that it was executed prior to the election." She further testified that union organizer Brenda Williams told her "that she had several union cards and she wanted to see how many union cards she could get signed up and get the election." Notwithstanding an at- tempt by Respondent's counsel to distort this into an im- proper election representation, I conclude that this was all that was said concerning the election within the recollection of' English. English admittedly read part of the card.99 I find 19 Jesse Cromartie was not called. His name appears on Resp. Exh. 15(a), a current payroll listing. 9 1I reject Respondent's contention that this card should be rejected be- cause unauthenticated as to date. It clearly was executed before the critical date for assessing the Union's majority in this proceeding. 9 Respondent's counsel made a challenge to this aspect of English's testi- mony by confronting her with the pretrial affidavit in which she indicated that she had not read the card. It was not my impression that either she or any other incumbent employees called to verify their cards engaged in a violation of the oath in order to support the Union's interest in this regard. 440 J. P. SEVENS & CO., IN(' that the card executed by English was a valid designation and it shall be counted toward the Union's majority in this proceeding. 67. Herbert C. Forbes (G.C. Exit. 88). Forbes was an in- cumbent employee at the time he testified. He claims that he received several visits from union representatives who, concerning the purpose of the card, indicated that "they had to have a certain percentage of numbers of people to sign before they could have an election." Forbes went on to testify that this was the extent of' their remarks concerning the card's purpose. Forbes did not absolutely deny reading the card, but his version was "I glanced at it . . . didn't really read it ... couldn't really tell you what was on it." In addition Forbes admits to possessing 3 or 4 union cards before the visits by a union representative but denied read- ing any of them. Also noteworthy is the fact that all entries on the card signed by Forbes are in his handwriting.'1 Forbes attended the meetings in April 1977 by his plant manager, which pertained to the card issue in this proceed- ing. I did not believe testimony by Forbes that he had not read the clear designation on the cards before he signed. and conclude that no improper representation was made in the execution of his card. It amounted to a valid designa- tion of the Union. 68. Evelyn Estelle Gore (G.C. Exh. 71). The signature on this exhibit was initially authenticated by union organizer Raymond Paulhus. Gore at the time of her testimony was actively employed by Respondent. Gore admitted to at- tending the speech that was given by the plant managers in April 1977 pertaining to the Union's effort to come into the plant and this proceeding. In the prepared speech read at those meetings the following appears: In the upcoming legal proceeding, those employees who signed cards prior to the last election will be called into court to testify about their signature. Unless an employee can prove that he/she was misled or de- ceived into signing the card, or fraud was involved, or the card was not signed by the employee, the Labor Board will count the card for the Union. Gore, when given an opportunity to authenticate G.C. Exh. 71, denied that it contained her signature. However. sam- ples acknowledged to be penned in her hand, are in evi- dence as General Counsel Exhibit 627(a)and (b). Compari- son reflects that the signature appearing on the card is almost an exact replica of those appearing on the sam- ples.'° I did not believe Gore and discredit the entirety of her testimony which is inconsistent with the designation ex- pressed on the face thereof. It was a valid designation which shall be counted toward the Union's majority. Al- though one cannot be entirely certain as to the origin of her incredible testimony, it is entirely possible that the radiating effects of the April 1977 meetings were far more effective than even the Respondent contemplated. 69. Luther Gore (G.C. Exh. 481). Gore was an incumbent employee at the time he testified. He relates that fellow zI Based on the credited uncontradicted testimony of union organizer Paulhus. 101 The Gore incident is the only example of an attempt by any witness to renounce a designation on the basis of an alleged forgery where handwriting samples reflected no perceptible differences. employee Willie Brice gave him a card. advising that "he wanted to help get an election started." Through a leading question by Respondent's counsel, Gore indicated that Brice did not inform him that the card had any other pur- pose. Gore acknowledged that he read the card. Under con- trolling precedent the statement imputed to the employee solicitor did not constitute a substantial ground for invali- dating the card, and it shall be counted towards the Union's majority in this proceeding. J. P. Stevens Co. Inc., Gullistan Divi.son v. '.I..R.B., 441 F.2d 514, 524. fn. 14. (15th Cir. 19711). Ruth 11. Grahamt (G.C. Exh. 389).J Graham at the time of the instant hearing was actively employed by the Respon- dent. Graham testified that she was told bN an unidentified individual that with respect to the purpose of the card, "the 3 needed a certain amount of people to sign the card, you know, inside the plant so that they could come in and have an election: and other than that they wouldn't allow them inside the plant." When she claimed to have asked if it would count as a vote fo the Union, they said "no, that we would have to have the election." Graham admittedly read the card. Unlike many other active employees who impressed me as bent on affording pattern testimony to re- pudiate their card, I consider Graham to have been a credi- ble witness. I believe her testimony that one of the employ- ees distributing cards responded to her specific inquiry by using words to the effect that execution of the card was not synonymous with a binding vote for the Union. This, in my opinion, amounted to the type of cancellation of the desig- nation on the face of the card, which constitutes a material misrepresentation. I find that the card of Ruth W. Graham did not constitute a designation of the Union and it shall not be counted. 70. Hazel fM. Griffin (.(. Exh. 235): Griffen at the time testified she was an active employee of the Respondent. She testified that she signed the card at the request of Phillip Pope who read the card to her. A summary of her testi- mony reflects that she was told about the benefits of having a union and that it would improve working conditions and get better wages for employees. Pope indicated that he wanted an election in order to get the Union in the plant, and that he was only a few cards short of getting inside the plant to have an election, to vote the Union in or out. There is no evidence that Pope in reading the card to Griffin de- parted from the precise terms thereof. From a fair reading of her testimony it is concluded that she signed her card under no representation inconsistent with the clear designa- tion appearing thereon. Her card shall be counted toward the Union's majority. Jernr Wayne Gurgaintou.s (G.C, Exh. 384). Gurgainous was an incumbent employee at the time he testified. He could not recall when he obtained his card, but indicated that a union representative came to his house. before he signed, and informed him that the card "wasjust to see how many people would like to have an election." Gurgainous admitted that the union representative also told him that if the Union got in the employees would probably get better benefits. The testimony as to the representation made to Gurgainous was not adduced under a form of examination likely to provoke an unreliable response and Gurgainous impressed me as a reliable witness. 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the issue is not free from doubt, it is concluded that the representation made to him on signing the card was sufficiently inconsistent with the expressed designation on the authorization card to warrant its invalidation. Accord- ingly, that card shall not be counted toward the Union's majority in this case. 71. Martha Janet Herring (G.C. Exh. 154): Herring was an incumbent employee of the Respondent at the time she afforded testimony. Before signing she read and understood the card. However, she testified that union organizer Louis Washington told her that the card's purpose was as follows, "if there were so many cards, we would hold an election to see for the Union to get in." Although Herring testified, in response to the leading question by Respondent's counsel, that Washington indicated that the card was "just for an election," I find that this aspect of her testimony was unre- liable as either a conclusion, impression, or deduction. rather than an expression fairly attributable to the union organizer. I find that nothing was said by the union orga- nizer inconsistent with the express designation of the Union appearing on the face of the card and shall count it toward the Union's alleged majority in the instant case. Samuel M. Howard (G.C. Exh. 72): Howard was an in- cumbent employee at the time he testified. He relates that he did not read the card before signing it and that he was told by a union organizer that a certain percentage of the cards would have to be signed in order to have an election. He also testified that the organizer indicated that the Union would get employees higher wages and benefits. Howard avowed that he knew that the card was a union card when he signed it and that the union organizer informed him that he worked for the Union. Howard admits that all writing on the card was his. It was the sense of his testimony, that while he was antiunion and knew that the union organizer wanted to see the Union in the plant, he took the union organizer at his word, and completed the card without reading it. Howard was an unreliable witness and I dis- credit him to the extent that he seeks to repudiate his card. It shall be counted as a valid designation of the Union. 73. Geraldine Johnson (G.C. Exh. 221): Johnson was an incumbent employee at the time she testified. On direct ex- amination she testified that the purpose of the card was "just to get an election." On cross, explaining what was actually said concerning the election, she indicated that union organizer Washington advised that "they had to have a certain percentage to sign the cards before they could get the election." She admittedly read the card. It was my im- pression that the testimony of Johnson concerning the elec- tion on direct was more in the nature of her own interpreta- tion of what was said rather than the words used, and I find that it furnishes no substantial basis for concluding that the card, which Johnson admittedly read, was executed on rep- resentations inconsistent with the clear designation on the face thereof. I find that it constitutes a valid designation of the Union. 74. Sara Lee Johnson (G.C. Exh. 705). Johnson was also employed by the Respondent at the time of the hearing. She obtained her card from a fellow employee and all entries thereon are in her handwriting. She read the card and indi- cates that she was told that it was to get an election in the plant. Johnson admittedly knew that there would be no union representation at the J.P. Stevens plants in Wallace without an election. This knowledge, no doubt shared by substantially all of her fellow workers, appears to have been exploited considerably at this hearing through the efforts of Respondent's counsel to capitalize upon slender reeds of memory in combatting the Union's alleged majority. This objective was often pursued through leading questions simi- lar to the line of examination on which the challenge to the card of Johnson is predicated as set forth below: Q. Did that individual tell you what this card would be used for? A. I read it. They said it was to get an election in the plant. Q. The employee who gave it to you told you that it was for an election? A. Yes, we discussed it. Q. Did he tell you that it would be used for any- thing else? A. Nothing but an election. Q. That it would be used just for an election? A. Yes. Q. Was it your understanding when you signed this card that the only thing it would be used for would be to get an election? A. Yes. Obviously an innocent representation through the leading nature of the examination, was converted into prima facie grounds for rejecting Johnson's card. Her testimony is re- jected insofar as it suggests that union representatives can- celed the clear designation on the face of the card to induce Johnson to signrr As indicated, the commonly held fact that the Union would not be recognized until it won an election together with the fact that a percentage of cards was neces- sary to the conduct of an election provided a background highly vulnerable to manipulative production of unreliable evidence. As in other instances, the claim that Johnson's card was obtained through a material misrepresentation is not substantiated by credible proof. Her card shall be counted toward the Union's majority in this case. 75. Gracie Lee Jones (G.C. Exh. 156). Jones was actively employed at the time she testified. The challenge to her card stems essentially from the following questions put to her by Respondent's counsel: Q. Did he tell you what the cards purpose was? A. To get an election. Q. Did he say it would be used for any other pur- pose? A. No. Q. Pardon? A. No. Q. Did you read the card? A. No. Q. Did you rely on what he told you in signing the card? A. That's right. Aside from the leading nature of this examination, it is noted that Jones attended the speech conducted by the 442 J. P. STEVENS & CO., INC. plant managers in April 1977 relative to this proceeding. Jones admitted that when she signed the card she knew that the election was only about 2 weeks off. The card was dated February 4, 1975, and it is entirely likely that it was ex- ecuted after General Manager's Walker's January 28, 1975. speech in which he acknowledged the well known fact that the election had been scheduled at that time. Jones further testified that she had 4 or 5 cards prior to executing that which is in evidence but claims that she read none of them. Jones was an unreliable witness who impressed me as one engaged in an argumentative and untruthful effort to repu- diate her valid designation of the Union. I discredit her testimony and find that the card she executed should be counted toward the Union's majority in this case. 76. Jimmv M. Jones (G.C. Eh. 321): Jones was an in- cumbent employee when he testified. He attended the speech given by his plant manager in April 1977. He asserts that prior to signing he was told that the Union needed a few more signatures in order to get inside the plant to hold an election. When queried as to whether he had read the card his response was as follows: "I think I did. I'm not sure now." His testimony shows little more than that the card would be used for an election, a representation not inconsistent with the clear designation on the face of the card. Accordingly, I find that the card executed by Jones constituted a valid designation which shall be counted toward the Union's alleged majority in this proceeding. 77. Wayne M. Keene (G.C. Exh. 424). Keene was an in- cumbent employee at the time he testified. He admits sign- ing the card, which bears his handwriting, at the behest of union organizer Phillip Pope. He admits that Pope read him the card but indicates that the latter informed him that it would be used "too, by the number of people that signed these cards would be used to get an election." He denies that he was told that the card would be used for any other purpose.'02 On the face of Keene's testimony the representa- tion concerning the election to which he attests is not con- sistent with the clear designation on the face of the card. It shall be counted toward the Union's majority in this case. 78. Betty T. Kennedy (G.C. Exh. 117). Kennedy was an incumbent employee at the time she testified. She admit- tedly attended a speech given by plant manager Shelton in April 1977. She claims that on executing her card she was informed that "if they had enough people to sign the cards it would give them the right to have an election." She as- serts that she was not told that the card would be used for any other purpose. She could not remember whether or not she had read the card. '° ' As there is no convincing evidence that Kennedy did not read the card before signing it and as the statement concerning an election imputed to the union organizer is not inconsistent with the designation appearing on the face thereof, I find that the effort to invalidate this 102 Kenne indicated that he made an effort to get his card hack by letter to Pope, dated April 15. 1977. It is not insignificant that this letter corresponds with the time frame in which plant managers Wellons and Shelton con- ducted meetings pertaining to this proceeding. 'O Based on the credited testimony of Phillip Pope, which is uncontra- dicted, I find that all entres, except the name of the Company, are in the handwnting of Kennedy. card is unsubstantiated and it shall he counted toward the Union's majority in this case. 79. .4Albert Earl King (G.C. Eh. 335.') King did not tes- tify, though his name appears on the current list of employ- ees on the payroll at the Carter plant. See Respondent Ex- hibit 15(b). Nonetheless, King's card was authenticated bx incumbent employee Glen Pigford. Pigford testified that he gave a card to King who completed it in his presence. He relates that he informed King that "if we got enough we would have a vote and get an election to get the Union." In my opinion. this statement does not cancel the clear desig- nation on the face of the card, and the card executed b King shall be counted toward the Union's majoritt in this case. 80. orwood Henry King, Jr. (G.C Eh. /57)- King was an incumbent employee at the time he testified. He admit- tedly signed a card at the request of union organizer Louis Washington. King admittedly did not pay attention to everything that was said bh Washington. hut he testified that Washington told him "the card would determine whether we would have an election." King went on to relate that Washington did not tell him that the card would be used fr any other purpose. Though the card is dated Janu- ary 23, 1975, like so many other incumbent employees who testified, King denied that he ever read the card. On cross- examination King admitted that Washington informed him that the Union would bring about better working condi- tions. I did not believe King's testimony that he did not read the card and, accordingly, find that the representation made by Washington was not inconsistent with the clear designation expressed on its face: it shall be counted toward the Union's alleged majority in this case. 81. Edward Kornegav (G.C. Ehs. 201) and 82. Sara K. Korengav (.C. Erh. 2(K)).' They are husbsand and wife. Both were actively employed by Respondent at the time they testified. They signed cards at the behest of union or- ganizer Michael Black. Sara KornegaN attended the speech given hby her plant manager in April 1977. Both testified that they never read a card before signing it. lowever Sara Kornegay. when examined as to how she could recall not reading the card. then indicated that she could not remem- ber whether she had or not. Edward Kornegay admittedly had a card in his possession prior to the one he signed but indicates that he did not read that one either. Both indicate that the union representative asked them to sign the card. advising that it would be used for an election. Edward Kor- negay testified that the union organizer used the magic words, "just . . . for an election." Sara Kornegea indicates that the union organizer said "if they had enough signed. it would determine whether they would have an election in the company or not." She admits that during his visit he discussed the advantages of representation by a union. It was my impression that the Kornegays afforded tailored testimony in a conscious effort to repudiate perfectly valid designations. I discredit them insofar as they impute im- proper statements to the union organizer, and their cards support the Union's alleged majority in this case. 83. Hen' F. Lee (G.C. Eh. 85J.- Lee was an incumbent employee at the time he testified. Upon execution of the card he claimed to have been told that the card would be 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used "to get an election so they could get a union."' 6 Lee indicates that he does not think that he read the card before signing it. Lee was an unimpressive witness. While on the stand, he impressed me as laboring under pressures. His plain difficulty in recalling what transpired was punctuated with a clear recollection of matters supporting his conscious effort to repudiate his designation. I find that the challenge to his card is not supported by credible substantial evidence and it shall be counted toward the Union's majority. 84. James Daniel McEachin (G.C. Exh. 752). McEachin testified that he obtained his card from another employee. signing after exchanging "a few words." The employee so- licitor asked him if he wanted a card, and without mention- ing an election, indicated "it would be used for voting pur- poses."'07 In my opinion this scant testimony is too ambiguous to reflect a representation inconsistent with the clear designation on the face of the card. McEachin's card shall be counted toward the Union's alleged majority in this case. 85. Thomas Madigan (G.C. Exh. 332): Madigan admit- tedly signed a card at the request of fellow employee Wayne Lanier. He indicates that he read the card and that Lanier told him that "the Union had to have a certain per- centage of the cards signed by people that worked there to get in and have an election, to get the Union in and have an election." In the circumstances this statement on the part of the employee organizer is not a cancellation of the clear designation on the face of the card and it shall be counted toward the Union's alleged majority in this proceeding. 86. Iris Jean Mathis (G.C. Exh. 304): Mathis was an in- cumbent employee at the time she testified. During the elec- tion she acted as a union observer. She testified that she and another employee, Carol Whaley, whose card is also in dis- pute in this proceeding, obtained cards from Bernice Jen- kins who indicated that the card "was to get an election started; he said that we would have better benefits and working conditions." Mathis is among the minority of in- cumbent employees willing to admit that they read the card. The evidence does not substantiate Respondent's challenge, and I find that the Mathis card constitutes a valid designation of the Union. 87. David L. Messick (G.C. Exh. 369). Messick was an incumbent employee at the time he testified. He testified that he obtained a card at the gate, took it home, and after I or 2 days completed it. Although Messick testified that after execution of the card he was visited by union orga- nizer Louis Washington who discussed the election with him, on the face of his testimony, it appears that he effectu- ated his designation prior to any such conversation. His card constitutes a valid designation and shall be counted toward the Union's majority. 88. Herman D. Miller (G.C. Exh. 64): Miller was an in- cumbent employee at the time he testified. He signed the card at the request of a union organizer who visited his home. He asserts that the union organizer at the time dis- '10 Lee also indicated that unidentified individuals who were passing out cards in the plant told him the purpose of the card was "just to get an election." 10 There is no indication as to whether or not McEachin read the card, but he entered all information thereon. cussed the advantages of union representation and went on to explain that they had to have so many cards signed be- fore they could have an election. Miller admittedly read the card. I find that this representation is not inconsistent with the clear designation on the face of the card and that it constitutes a valid designation of the Union for purposes of this proceeding. 89. Carolyn Moore (G.C. Exh. 204): Moore was an in- cumbent employee on leave at the time she testified. She relates that she signed the card at the behest of union orga- nizer Michael Black who told her that the card was "for the election." While indicating that he did not tell her that the card was for any other purpose, on cross-examination she admits that he discussed the benefits of having a union in the plant before she signed. Moore admittedly read the card before signing it. I find that she did so without laboring under any improper inducement and that her card consti- tutes a valid designation of the Union. 90. Martha C Moore (G.C. Exh. 80): Moore was an in- cumbent employee at the time she testified. She indicates that she signed at the request of a union organizer who visited her home. She testified that the union organizer told her that "the only reason he wanted us to sign was to get enough signed so that they could have an election," and that when she asked him, he indicated that employees could not retrieve their cards, since it would never be held against them because it was just to get an election. On cross-exami- nation Moore admits that the union organizer discussed his view that designation of the Union would mean better working conditions. Although on direct examination she suggested that she did not read the "little writing down there" on the card, on cross-examination, when confronted with the fact that she had completed the card in its entirety, she admitted that she had read the card. Moore admitted that she attended the meetings conducted by her plant man- agers in April 1977, the subject matter of which included the card issue in this proceeding. Carolyn Moore was not an impressive witness. Her testimony concerning the represen- tatives made at the time of signing is deemed too unreliable to warrant credence. I find that the challenge to this card is unsubstantiated by believable testimony, and shall count it toward the Union's alleged majority in this case. 91. Melvin C. Naylor (G.C. Exh. 218) and 92, and Brenda C. Naylor (G.C. Exh. 219): The Naylors were actively em- ployed at the time they afforded testimony in this proceed- ing. They claimed to have signed cards when two union organizers visited their home. The claimed that they were told that the purpose of the card was "just to have an elec- tion." They denied reading the card though the union cam- paign had been in progress some 4-1/2 months at the time they signed. While admitting that the union representatives were at their home for about 45 minutes, they deny that there was any discussion of union benefits or the advan- tages of union representation. It seemed too convenient that the Naylors could recall little more from the visit by union representatives than the "just for an election" representa- tion. Their explanation that they were hurriedly getting ready for work at the time struck me as argumentative and false. Mr. Naylor could only state that he believed that he 444 J. P. STEVENS & CO., INC. attended the speech given hby Wellons in April 1977. per- taining in part, to this proceeding. The Naylors did not strike me as truthful witnesses. and I discredit their testi- mony as to the circumstances under which they signed cards. The cards executed by both shall be counted as valid designations of the Union foIbr purposes of the proceeding. 93. Kalhon Ray Newkirk (G.C. Exh. 241) Newkirk was an incumbent employee at the time he testified. He ac- knowledges that he signed a card at the request of Phillip Pope who visited his home. At the time he signed he claims that Pope told him that its purpose was to allow an election if enough people signed. He denied that Pope told him that the card would be used for any other purpose. He also denied that he ever read one of the blue cards before sign- ing. m0 On cross-examination Newkirk admitted that Pope discussed the advantages of union representation. indicat- ing that it would result in improved working conditions. Newkirk attended the meeting conducted by his plant man- ager in April 1977, which reflected upon the issues in this proceeding. His card was dated January 27, 1975, and at a time when the preelection hearing, which Pope had at- tended, had closed and when considering General Manager Walker's speech of the next day, it is fair to assume that the election had been scheduled. I do not believe Newkirk's testimony that under such circumstances Pope would have obtained a signature under the conditions attested by New- kirk. His insistence that he knew he did not read a card fits a pattern of incredible testimony offered by incumbent em- ployees seeking to repudiate their cards. I find that the claim that this card was obtained on the basis of an im- proper representation concerning the election is unsubstan- tiated by credible evidence and it shall be counted toward the Union's majority in this proceeding. 94. Donald Ray Parker (G.C. Exh. 485): Parker at the time he testified, was an active employee of Respondent. During the campaign, he admittedly authorized his wife to complete and sign a card in his behalf. He claims that he received a card from a fellow employee who told him that they had to have so many cards signed in order to have an election to see if the employees wanted a union.'09 Parker denied reading the card before signing. I did not believe Parker's testimony that he did not read the card before signing, and I find that the evidence does not substantiate that an improper representation, sufficient to invalidate the card, was made to him."0 I find that the card executed by Parker constituted a valid designation of the Union and it shall be counted toward the Union's alleged majority in this case. 95. Terry G. Parker (G.C. Exh. 183) Parker was an ac- tive employee at the time he testified. According to Parker. he received an authorization card from a fellow employee ra All entries on the card are admittedly in Newkirk's handwriting. '°' Parker admits that the employee solicitor did not use the magic words solely for an election orjust for an election, but that he interpreted the words of the employee solicitor as meaning the same thing. '0 As matters turned out, Donald Parker did engage in activities on behalf of the Union during the instant campaign. He admits to having engaged in leafletting. and his name appears on a letter authorizing the use of his name by the Union for purposes of organizing the Wallace employees. See Pet. Exh. 8. who informed him that "an election could be cast at J.P. Stevens if enough cards were signed." Hte claims that he was told that the card had no other purpose. Parker could not remember whether or not he read the card. All entries on the card bear the handwriting of Parker. It is dated l-eb- ruarv 7. 1975. about 10 days after General Manager Walker gave his speech. acknowledging the probhabilit that em- ployees were aware that the union election had been sched-- uled. Although I find that the testimon, of Parker does not lay a substantial foundation for rejection of his card. I would note that his testimony fits a pattern of unbheliclable testimony offered by employees in an etffort to rerudiate valid designations in this proceeding. lie admits to hasing attended the speech afforded in April 1977 b\ his plant manager which pertained to issues in this proceeding. His card constitutes a valid designation and it shall be counted. 96. Roland Pendergrass (G.C. E.xh. 4,V.): Pendergrass was actively employed at the time he testified. lie admits that he made all entries on the card in question. that he obtained it at the plant gate, retained it in his possession for a couple of days before completing it but denies that he ever read it. The challenge to his card is based upon a conversation with a fellow employee by the name of' Gary Kennedy. lie claims that Kennedy told him that the card was to bring an election in the plant so that employees would have a right to decide for themselves whether they wanted a union or not. As it is not shown on this record that GCarN Kennedy engaged in card solicitation or any other activits on behalf of the Union, apart from the possibility that he signed a card."' this statement amounts to no more than "scuttle- butt." The card of Pendergrass shall be counted as a valid designation of the Union for purposes in this proceeding. 97. Eett Pickett (G.C. Exh. 488). Pickett. an incumbent employee at the time she testified. indicated that she ob- tained the card from an unidentified employee ,who indi- cated that the card would be used to get an election. She asserts that she read the card and understood its terms be- fore signing. The foregoing evidences no improper induce- ment, and her card constituted a valid designation. It shall be counted toward the Union's majority in this case. 98. Grace Delois Pickerrt (G.C. Exh. 176): Pickett was an incumbent employee on leave of absence at the time she testified. She could recall executing a card at the request of a union organizer who visited her home but could remem- ber little that was said other than that "he wanted to get enough cards signed to get an election." Pickett admits that she read a card at "sometime." I find that this card was not signed on the basis of a representation inconsistent with the clear designation on the face thereof, and it shall be counted toward the Union's majority in this proceeding. 99. James C. Pickettr (G.C. Exh. 177): Pickett at the time he testified was an incumbent employee of the Respondent. He assertedly was visited by a union organizer who indi- m The only Gary Kennedy identified in this hearing is Gary Allen Ken- nedy. who executed an authorization card on behalf of the Union on Decem ber 2, 1974. His signature to that card does not make him an agent or representative whose statements concerning the organization campaign would be any more binding upon the Union than those of an antiunmon employee. See, e.g., The Stride Rite Corporaion. 228 N.R 224 (977) (Ackerley). 445 I)(' DISIONS OF NATIONAl. IABOR RELATIONS BOARD cated that "he wanted people to sign these cards because he wanted to have an election in the mill, that's what he said." lie denied ever reading a card. I discredit his testimony in this latter respect a2 and find that no representation incon- sistent with the clear message on the face of the card was made to Pickett. His designation shall be counted toward the UInion's majorit in this proceeding. 100. ('art D. Pierce (G. . Eh. 266): Pierce was an in- cumbent employee at the time he testified. According to Pierce. he was visited at his home by Phillip Pope who told him that he worked for the Union, he had union cards that he was trying to get employees to sign, and he had to have so many cards signed before they could have an election in the plant. He denied ever reading a card, though he admit- ted having several in his possession before the Pope visit. He claims that Pope did not mention the advantages of union representation until after he signed a card. I was not impressed with the testimony of Pierce. Coincidentally, his account fits a familiar pattern of employees who attempted, by false testimony, to repudiate their designations of the Union. It is not insignificant that Pierce also attended meet- ings conducted by his plant manager in April 1977. Though a reference to this proceeding was admittedly included in the speeches delivered at those meetings. Pierce could not recall that anything was said concerning the card issue in this proceeding in the course of those meetings. The asser- tion that the card of Pierce was obtained on the basis of any improper inducement is unsubstantiated by credible testi- mony. It is deemed a valid designation and shall be counted toward the Union's alleged majority in this proceeding. 101. Eleanor Pierce (G.C. Exh. 129): Pierce, at the lime she testified, had been continuously employed by Respon- dent for some 25 years. She testified that prior to signing a card, she was visited by union representatives on 3 or 4 occasions but that each time she told them she had already signed a card. She claimed that their last visit took place at a time when she had guests fbor dinner. She testified that on this occasion the organizers told her that they had no record of her 1h.ving signed and asked her to sign another card. She claims thit she did so to avoid having herself made out to be a liar. She asserts that each time the union organizers visited her, they told her they had to have a certain amount of cards signed before they could get an election. Pierce denied ever reading a card before signing, though she had picked up cards at the gate previously. It is noted that with the exception of the name of the Company, all entries ap- pearing on General Counsel Exhibit 129 are in Pierce's handwriting. The testimony of Pierce impressed me as a contrived effort to repudiate an otherwise valid designation. She is discredited, and her card shall be counted toward the Union's majority in this proceeding. 102. Joyce D. Pierce (G.C. Exh. 491). Pierce was an in- cumbent employee at the time she testified. All the hand- "' Particularly unconvincing was Pickett's testimony that he signed the card because he was tired of being around "it" though he really didn't want "it," and that he did not want an election, but signed so that the union organizer could have one. It is the sense of Picket's testimony that he signed a card obtained at the plant gate, a fact which mitigates the possibility that he was subject to any form of harassment or browbeating as his testimony seemed to suggest. writing on GC 491 is hers. She admittedly signed at the behest of union organizer Loraine Burnett who visited her home and asked her to sign a card. She indicates that Bur- nett told her that the card is to "help us have an election and nobody won't know you signed it. and the Union could get her more money if she signed the card." I he statements imputed to Burnett are not inconsistent with the clear un- ambiguous designation on the face of the card, and I find that the card of'Josce Pierce constitutes a valid designation. which contributes to the Union's majority in this proceed- ing. 103. William P. Pierce, Jr. (.(. Exh. 213): Pierce was an incumbent employee at the time he testified. He related that an unidentified union organizer visited his home and requested that he sign a card telling him that "it would be used strictly for election purposes." Pierce claims that he did not read the card before signing it. When asked whether the organizer explained what they meant by "strictly for an election." Pierce on cross-examination indicated that they said 'they were getting 51 percent of the people to sign cards so they could have an election or see if they wanted the Union in." Pierce could not recall whether during this 10 or 15 minute conversation the union organizer men- tioned the advantages of having a union in the plant. Pierce knew that it was a union card that he signed and also ad- mits that he picked up a card attached to a pamphlet at the plant gate but denied reading it, claiming that he threw it into the trash as soon as he got home. Pierce admits that all entries on the card, except for the date, are in his handwrit- ing. He claimed that he did not know he was helping the union by signing a card. Pierce impressed me as engaged in a conscious effort to repudiate his card and, like other in- cumbent employees who testified in this proceeding, seemed willing to take advantage of a lack of recollection by substi- tuting argumentation which would lead to such a conclu- sion."' I find that the challenge to this card is based upon incredible testimony and shall count it toward the Union's majority in this proceeding. 104. Carolyn Potts (G.C. Exh. 161). Potts was an incum- bent employee at the time she testified. She claims that she was visited at her home by union organizer Louis Washing- ton who told her that the purpose of' the card was "to get an election." Potts denied that Washington told her that the card was for any other purpose. Potts admitted that, though she did not read the card, Washington read it to her, and that it said nothing about an election. She also admitted that Washington mentioned that union representation would lead to a "possibility" of higher pay, better working conditions and better insurance. Upon consideration of' her testimony, I find that it does not substantiate the existence of any improper representation altering the clear meaning on the face of the card and that it constituted a valid desig- nation of the Union. 105. Thomas Henry Pratt (G.C. Exh. 497). Pratt was an incumbent employee who testified that he picked up a card at the plant gate and completed it. The card is dated Sep- tember 23, 1974. There is no evidence that any improper "J It is noted that Pierce attended the April 1977 meeting in which issues pertaining to this proceeding were discussed. 446 J1 P1 SIEV:ENS & CO). INC' representation "ias made to obtain his signature. and his card constitutes valid designation of the nion which shall he counted towards the nion's alleged inmjorit in this proceeding. 4 106. yrone . Robinson (.(. Exh. 504): Robinson was an incumbent employee at the time he testified, lie indi- cates that he obtained a card from an unidentified individ- ual who told him that he had to "get so many to sign cards to see whether we can have an election, to see who wanted the Union." That individual did not indicate that the card would be used for anything else. Robinson read the card. and as I find that no improper representation was made, it constitutes a valid designation of the tlnion which shall be counted towards the alleged majority in this case. 107. David E. Rogers ((G.C. E.h. 260) and 108. and Fay H. Rogers (G.(. E.sh. 261):. They are husband and wite. At the time they testified, only David Rogers was still in the Company's employ. Both acknowledged that they signed cards when union organizer Phillip Pope visited their home. Fay Rogers indicates that Pope explained that the card was "for an election," and that he did not explain that it would be used for any other purpose. Fay Rogers acknowledges that Pope did discuss the advantages of having a Union in the plant. Both denied ever reading a card, although David Rogers indicated that he had picked one up at the gate and brought it home previously, asking his wife if she wanted to read it. On their testimony, I do believe that Pope might have made some reference to an election. but I do not ac- cept their testimony insofar as they impute to Pope a state- ment inconsistent with the clear designation on the face of the card. Neither was considered trustworthy. Particularly unbelievable was their testimony that they had not read a card before signing, which once again echoed the familiar incredible ring of an excessive effort on the part of employ- ees to repudiate valid designations."' I find that no credible evidence has been offered supporting a substantial chal- lenge to the validity of these designations, and they shall be counted toward the Union's majority in this case. 109. Angela Faye Rouse (G.C. Exh. 291): Rouse was an active employee at the time she testified. In affording her testimony she manifested difficulty in recalling the events surrounding her signing. Her description of what was said to her concerning the purpose of the card she signed varies from statements to the effect that they would be used to see if enough people were interested in the Union to hold an election to the simple explanation that the card was to be used "to hold an election." Rouse admittedly had read a card before signing it. A fair assessment of her testimony does not reveal that any representation was made to her. varying the clear designation on the face of the card, and I "'Counsel for Respondent seeks to highlight certain testimony by Pratt that at a union meeting he attended in October 1974, union organizer Phillip Pope indicated that the sole purpose of the card was to determine whether or not the Union would get an election. There is no question in my mind that Pratt was an objective witness. However, the line between an improper and perfectly permissible representation touching upon the matter of an election is often faint and one which a lack of memory may blur. It was my impres- sion that Pratt had no clear recollection of the precise words used at the union meetings, and further I do not believe that Pope in so many words used the language attnbuted to him by Pratt. "' David Rogers admittedly attended a meeting presided over by his plant manager in Apnl 1977 in which the hearing was discussed. find that it constitutes a valid desination which shiall he counted toward the Union's alleged malorit, in this pro- ceeding.11" I O. 4i nrhonr Jerome Sholar (6 (i. ( it. .50i1) Sholar was an incumbent employee at the time he testified. A fiir assessment of his testimony limits the challenge to his card to a statement attributed to employee Bernice Jenkins that its purpose was to see it' there was enough interest in the Union to have an election. Sholar admittedly read the card In my opinion his testimony. fairly construed. does not re- flect an improper inducement and it shall he counted toward the Union's majority. I I I. Tlimnil J. Shotlar (G. C. Ex-h 2(17). At tile time of the hearing Sholar had been continuouslyi employed by Re- spondent fr about 20 years. He testified that he signed a card at his home at the request of' union organizer Mike Black. Black allegedly advised him that the purpose of the card was to "see whether or not we would have an elec- tion." Sholar, in response to a familiar leading question. indicated that he was not informed that the card was for any other purpose. his despite the fact that on cross-ex- amination Sholar admitted that Black discussed the advan- tages of union representation including better working con- ditions and more pay. Although Sholar admitted that he knew the card was a union card and that he possessed one that he obtained previously at the plant gate. he denied reading that or any other card before signing. Sholar at- tended the April 1976 speech given by Plant Manager Wel- Ions. I did not believe that with the union campaign in progress for some 4 months he did not read a card before signing, and I mistrusted his capacity to recall, in a manner affording a fair and accurate accounting. the precise words expressed to him by any union representative or agent prior to his execution of the card. It is considered a valid designa- tion and shall be counted toward the union's alleged major- ity in this proceeding. 112. Donnie Mac Smith (G.C. Exh. 96): Smith was an incumbent employee at the time she testified. She signed a card at the request of Phillip Pope. According to Smith, Pope told her that the purpose of the card was "just for an election." She further testified that when Pope asked her to read the card she did so and that before she signed he dis- cussed the benefits that employees would realize through union representation. I was not convinced that her testi- mony concerning the "just for an election" representation was an accurate rendition of Pope's words on that occasion. While possibly her interpretation of what was said, her tes- timony seemed "too pat." and might well have been in- spired by matters contained in the prepared speech given by the plant managers in April 1977 as to the circumstances under which the Board would decline to count cards as "' Rouse attended the April 1977 group meetings and speech presided over by the plant manager in connection with this hearing. Although having nothing to do with the validity of her designation. it is noteworthy that her testimony concerning the events at that meeting has the same evasive charac- ter of several other witnesses. She, as other witnesses whose testimony has been discredited, testified that plant manager Shelton simply told them that "that there is going to be a heanng down here and if we were called, to come and tell the truth." It is clear from the prepared speech delivered hy Shelton and Wellons that they said far more. I is a striking coincidence that few employees could recall the drift of that speech insofar as it related to this proceeding 447 D[)('ISIONS OF NATIONAL LABOR RELATIONS BOARD[ union designations. I ind that there is no credible testi- mony supporting the challenge to this card and shall count it toward the Union's alleged majority in this proceeding. 113. Ervin R. Smih (G.C. Eh. 512) This exhibit was authenticated by Tommy Lee Smith who told the signer that the purpose "was to see ift there was enough people in the plant that wanted the election, so it could be held, to decide whether we needed a union or not, or wanted one." There is no evidence that Ervin Smith did not read the card before signing. I find that the representation in question was not inconsistent with the clear designation on the face of the card, and it shall be counted toward the Union's majority in this proceeding. 114. Shirley P. Smith (G.C. Exh. 314). Smith was an in- cumbent employee at the time she testified. At the time she executed a card, she was told that the purpose of the blue card was "that if we could get enough cards that they could have an election at J. P. Stevens." She read the card before signing. Such a representation is not inconsistent with the clear designation on the face of the card, and Smith's card shall be counted toward the Union's majority in this pro- ceeding. 115. Tommy Lee Smith (G.C. Exh. 517): Smith signed a card given to him by his brother, Ervin Ray Smith. His brother indicated that the card was "to see if we could get enough people together to get a union election." Smith signed several cards during the campaign, and with respect to that in issue here, there is no evidence that said represen- tation was inconsistent with the clear designation on the face of the card. It shall be counted toward the Union's majority in this proceeding. 116. Audie S. Spell (G.C. Exh. 61). Spell was actively employed by the Respondent at the time he testified. He signed a card during the campaign at the request of union organizer Ray Paulhus. According to Spell, Paulhus told him that the card would be used "to have an election, to get enough blue cards to have an election." Spell acknowledges that Paulhus read him the card in the presence of his wife. There is no evidence that Paulhus, in reading the card, de- parted from the precise terms thereof. No representation at odds with the clear designation or the face of the card was shown and it shall be counted as a valid designation. 117. Thelma Virginia Stokes (G.C. Exh. 263) and 118. and William G. Stokes (G.C. Exh. 264): They are husband and wife. Thelma Virginia Stokes no longer works for J. P. Stevens, but her husband was actively employed at the time he testified. Union organizer Phillip Pope initially authenti- cated their cards. According to Thelma Virginia Stokes, Pope told her that the card "wouldn't be used for anything except to get enough to elect, to vote for it, to come into the plant and vote," She acknowledged that she read the card before signing it and testified that she signed the card be- cause her husband told her he was going to sign it, and she indicated that he told her that he did so because "he wanted the union in." William Stokes denied reading the card. He claims that Pope told him that the card would be used to have a vote. Thelma Virginia Stokes had little recollection of what transpired in her conversation with Pope, and Wil- liam Stokes was an unbelievable witness who manifested a lack of candor in describing his union sentiment during the campaign under scrutiny here. Contrary to his wife, he claimed that he did not particularly want a union in the plant at the time he signed, adding that he had not changed his mind concerning union representation. He attended the speeches in April 1977 which were presided over by the plant manager and which pertained to the issues in this proceeding. William Stokes was evasive and seemed bent on excusing his earlier support of the union as a by-product of union trickery rather than his own judgment. His testi- mony that he did not read the card before signing it was unbelieveable. With respect to these cards, I find that credi- ble evidence does not support Respondent's challenge thereto and both shall be counted as valid designations in this proceeding. 118. Helen R. Surcy (G.C. Eh. 248): Surcy's card was initially authenicated by Phillip Pope. According to Surcy, she signed the card when Pope visited her home, and ex- plained that "it would be used for better -to get an election in and for the people to vote whether they wanted a union in or whether they didn't." She also testified that Pope told her that the Union would help benefit the employees by getting better wages. She indicated that she did not read the card, but that Pope read it to her, and that what he read did not mention anything about an election. Previously, Pope testified that he read the card to Surcy in the presence of her husband. I am convinced that Surcy was accurately made aware of the content of the card, and that the repre- sentation she attributes to Pope did not alter the clear meaning thereof. It shall be counted toward the Union's majority in this proceeding. 120. Brenda Taylor (G.C. Exh. 524). Taylor testified that she signed a card given by a fellow employee. She was told by the latter that if enough cards were signed, they could have an election to vote the union in. She was told that execution of the card did not obligate her in any way. Al- though in my opinion no representation was made inconsis- tent with the clear designation on the face of the card, it is also noted that Taylor testified that she did not rely on any such representations, but signed the card because she wanted the union. Her card constitutes a valid designation of the Union and it shall be counted toward the Union's majority in this proceeding. 121. John Harvey Taylor (G.C. E.xh. 58): Taylor was given a card by an unidentified employee who told him it was for a union election. Pursuant to a leading question by Respondent's counsel. Taylor indicated that the employee solicitor did not tell him that it would be used for any other purpose. Nonetheless, Taylor read the card, and any such representation did not cancel out the clear designation on the face thereof. It shall be counted toward the Union's alleged majority.'1 "7 According to the credited testimony of Raymond Paulhus who initially authenticated the card of John Taylor. the latter made all entries thereon. Although Taylor was not employed by the Respondent at the time of the heanng and accordingly appeared to be disinterested, I have some difficulty believing his testimony that he signed the card on an explanation that it was necessary to obtain an election. His card is dated February 4, 1975, and hence, it was executed at a time when the election had already been sched- uled and apparently at a time when this fact was a matter of common knowl- edge. Taylor impressed me as lacking a clear recollection of what occurred at the time he signed and he seemed a bit confused in relating the circum- stances under which he executed his card. 448 J. P. STEVENS & CO.. INC. 122. Barbara B. Torrans (G.C. Eh. 193) and 123. Ellis Ray Torrans (G.C. Exh. 192). They are husband and wife. Neither were employed by Respondent at the time they testified. Both signed cards when visited at their home by union organizer Michael Black. It is the sense of their testi- mony that Black discussed the benefits that the Union could gain for them and told them that the Union had to have a certain number of cards signed before it could come into the plant to get an election. Ellis Ray Torrans read the card before signing it. Barbara Torrans denied reading the card, but with the exception of the date, her card appears to have been completed in her handwriting. Although Barbara Torrans was not actively employed at the time she testified, I viewed her testimony in this latter respect as suspicious and once again find it difficult to accept that an individual could have such a clear recollection that they did not read a document they signed in the course of a controversial union campaign. I discredit her in this respect, and find that the statements concerning an election attributed to Black did not cancel the clear designation on the face of the authori- zation cards. Both cards validly contribute to the Union's alleged majority in this proceeding. 124. Richard G. Tucker (G.C. Exh. 307). Tucker was an active employee at the time he testified. Employee Bernice Jenkins approached him and asked if he "wanted to sign a card so that they could see if they could get up enough blue cards to hold an election." Tucker is among the many in- cumbent employees who sought to repudiate cards through incredible testimony that they did not read it before sign- ing. I did not believe him in this respect. In passing it is noted that Tucker attended meetings conducted by Plant Manager Wellons in April 1977 which pertained to this proceeding. I find that the challenge to Tucker's card is unsubstantiated by credible evidence, and it shall be counted toward the Union's majority in this proceeding. 125. Alice Faye Underwood (G.C. Exh. 107): Underwood was actively employed by Respondent at the time of her testimony. She signed a card at the behest of employee or- ganizers who advised her that the card would be used to get an election to get the Union in. She claims that she did not read the card but that the union organizer read it to her. In my opinion the testimony of Underwood fails to disclose a representation inconsistent with the designation on the face of the card, and it shall be counted toward the Union's majority in this proceeding. 126. Walter L. Wade (G.C. Exh. 253): Wade was an in- cumbent employee at the time he testified. He signed a card at the request of union organizer Philip Pope, who told him that it would be used "to get enough cards signed to have an election in the plant." Wade denied that he read the card. Here we have another employee, signing a card some 4-1/2 months after the union campaign commenced, who apparently communicated with clear recall that he never read an authorization card during the union campaign. Al- though reluctant to speculate as to the source of this wide- spread pattern of unbelievable testimony, I would note that Wade attended a meeting conducted by his plant manager in April 1977. 1 find that the card he executed constituted a valid designation of the Union. 127. Rose J. Wainwright (G.C. Exh. 533) and 128. Wil- liam A. Wainwright (G.C. Exh. 534): They are husband and wife. Both were actively employed at the time they testified. There is no evidence whatever suggesting an improper in- ducement contributing to the execution of a card by Wil- liam Wainwright. It shall be counted toward the Union's majority. Rose Wainwright testified that she picked up the card at the plant gate and took it home. She indicated that she had a discussion with a "union representative."" who told her that the Union lacked a few cards necessary to hold an election.' 9 Rose Wainwright admittedly read the card, and the representation to which she attested is not inconsistent with the purpose expressed thereon. Accord- ingly, I shall also count her card toward the Union's major- ity in this proceeding. 129. Milton Stanley Wells ((;.C. Exh. 119). Wells was an incumbent employee at the time he testified. lie related that he was given a card by Union Organizer Ray Paulhus who informed him that "there were several of the union agents in town going around to the employees and trying to get them to sign the card to see if' they would have enough percentage to hold an election." According to Wells. Paul- hus did not indicate that the card would be used for any other purpose. Wells admittedly read the card. and I find that the representation he ascribed to Paulhus was not in- consistent with the clear designation on the face thereof. It shall be counted toward the Union's majority in the instant proceeding. 130. Carol F. Whaley (G.C. Exh. 303) Whale) was an incumbent employee at the time she testified. She claims that she received a card from Bernice Jenkins, who told her to sign it "so that we can get enough people, you know, to get an election." Her denial that she read the card was among the least credible of the witnesses taking that similar tact. On obtaining the card she did not sign it immediately but carried it back to her work station where she filled out the card in its entirety and then returned her card to Jen- kins. She claims that she did not read the card while it was in her custody. Significantly, Whaley admits to reading a blue card which was attached to a leaflet but insists that this did not occur until after she executed her own card. No explanation is offered as to what stirred her curiosit on that occasion. I discredit Whaley's denial that she read the card before signing it, and find that the representation she imputes to fellow employee Bernice Jenkins was not incon- sistent with the clear designation on the face thereof. Her card shall be counted toward the Union's majority in this proceeding. 131. Sylvia Wheeler (G.C. Exh. 552): Wheeler was an in- cumbent employee at the time she testified. She testified that she signed and completed a card at the request of Phil- lip Pope and an unidentified union organizer. According to Wheeler, she was told that "they needed a few more cards signed so they could get into the mill and hold an election "' This expression by Rose Wainwright was in response It a question propounded by Respondent's counsel. which lacked a proper filundation in that it assumed that the unidentified individual Rose Wainwright spoke to concerning the purpose of the card was, in fact, an agent of the ,mnion 119 With respect to any conflicts In credihilhts as between the Wainwrights. although it is unnecessary to resolve them, It is noted that the testimony of William Wainwright was the more straightforward and direc. and his ac- count was deemed reliable 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and see how the employees would vote." She could not recall whether the union organizers said that the only thing the card would be used for would be an election. She admit- tedly read the card. The representation attested to by Wheeler is not inconsistent with the clear designation on the face of the card, and it shall be counted toward the Union's majority in this proceeding. 132. Edward Franklin Williamson (G.C. Exh. 35): Wil- liamson was actively employed at the time he testified. He claims that he signed a card, with information received from union organizers, "that the card would be used to hold an election." He claims that at the time he signed the card he was not aware that an election was scheduled for Febru- ary 19, 1975. It is noted in this connection that his card bears the date February 15, 1975. Williamson admits that he read the card before signing it. Although I have difficulty believing the testimony of Williamson that union organizers would have made such a representation concernning the election at that time, in any event their alleged statements did not constitute a renunciation of the clear designation on the face of the card. The Williamson card shall be counted toward the Union's majority in this proceeding. 133. Wanda Wolford (G.C. Exh. 305). Wolford claims that she signed a card which she obtained from employee organizer Bernice Jenkins. She asserts that he told her that the card would be "used for an election, to get an election." Wolford could not recall how long she possessed the card before returning it to Jenkins, but insists that she did not read the "fine print" on the card. When initially asked whether she filled in all the information on the card, Wol- ford indicated that she only signed her name on it. How- ever, when confronted with the card, she admitted that all entries were her own. Although Wolford was no longer em- ployed by Respondent at the time she testified, she was considered to be an untrustworthy witness, and I did not believe her testimony that she did not read the card in its entirety before signing. Otherwise, her testimony reveals no representation inconsistent with the clear designation on the face of the card, which shall be counted toward the Union's majority in this proceeding. 134. Mabel J. Wood (G. C. Exh. 209) and Joseph P. Wood (G.C. Exh. 210): They are husband and wife. Both were employed at the time they afforded testimony in this pro- ceeding. Union organizer Michael Black, in authenticating their cards, testified that he first signed up Joseph Wood, who suggested that he solicit his wife who apparently was not present at the time. Black did so and obtained her card a few days later. Both denied that they read the card and adopted a posture on the witness stand designed to create the impression that they were "sweet talked" into signing. They attended the meetings conducted by the plant manag- ers in April 1977, but had a scant recollection of what tran- spired on that occasion.' Mable Wood was a thoroughly unimpressive witness. Her testimony that she did sign the card, though she in fact completed it in its entirety, fit the familiar pattern of incredible testimony afforded in this pro- 12O Mable Wood could recall that Plant Manger Shelton stated that em- ployees who are called to testify in this proceeding should tell the truth. She could recall little else. ceeding. Other aspects of her testimony struck me as a con- trived effort to place the onus for her decision to support the Union upon certain untoward activities by the union organizers. I do believe, however, that the organizers re- ferred to the election, and informed both of the Woods that the cards would be used to enable the Union to participate in an election. In the case of Mable Wood. I find that this representation was not inconsistent with the clear message on the face of the card, and her card shall be counted. With respect to Joseph Wood, however, as I believe his testimony that he could not read, and, as it does not appear that any one read the card to him prior to his signing,'2' I shall reject his card. 135. Mairo Ann Wood (G.C. Exh. 56): Wood was an in- cumbent employee at the time she testified. Altghough the card in evidence bearing her signature reflects that it was completed in its entirety by Wood, she too denied reading the fine print before signing, or that she read any other card that she had picked up previously. She attended the April 1977 meeting with her plant manager in which this hearing was discussed. She testified that she signed the card at the request of union organizer Ray Paulhus, who told her "they had to have enough signatures on the blue cards in order to get an election at J. P. Stevens." Although in response to a leading question by Respondent's counsel, she indicated that that was the only thing that Paulhus told her about the cards, she goes on to indicate that he discussed the advan- tages of union representation. Wood was an argumentative and evasive witness, and I particularly did not believe her specific recollection that she only read the first three lines of the card that she signed 2-1/2 years previously. I am un- willing to except her testimony as credible evidence that she signed the card on an improper representation and shall count it toward the Union's majority in this case. By way of summary it is noted that of the authorization cards specifically contested in Respondent's brief: 135 cards have been found to constitute valid designations of the Union. (3) Unchallenged designations With respect to properly authenticated authorization cards which are in evidence and not subject to specific chal- lenge in Respondent's brief, Appendix C lists 426 valid des- ignations. OAppendix C omitted from publication.] With re- spect to each, the record has been reexamined by the undersigned, and it has been concluded that all were prop- erly authenticated by credible evidence and that neither misrepresentation nor any other infirmity bars their being counted toward the Union's majority in this case. However. certain of these cards, while not specifically challenged in the Respondent's brief and considered valid, warrant clari- fying comment as follows: David Blanton (G.C. Exh. 18). Blanton was actively em- ployed by the Respondent at the time he testified. He is an illiterate, whose card was initially authenticated by em- ployee organizer Jimmy Lee Smith. Smith credibly testified 2I Joseph Wood signed the card on December 9. 1974, and he was alone with the union organizers at the time. He concedes that the did not tell the union organizers that he was illiterate. 450 J. P. STEVENS & CO.. INC. that he read the card to Blanton because the latter could not read or write. Blanton denied this, and claims that he signed on the representation by Smith that "all it was sup- pose to be used for was just to have a vote, get enough cards signed to have a vote on it." Blanton was not considered a reliable witness, both as to the denial that the card was read to him and insofar as he attempts to create the impression that he signed the card on a representation that it would be used solely for purposes inconsistent with the clear designa- tion appearing on the card. His card shall be counted toward the Union's majority. Joseph Leon Brooks (G.C. Exh. 181): Brooks was an in- cumbent employee at the time he testified. He related that he signed a card when visited at his home by a union orga- nizer.' He claimed that he was told by the union organizer that the card would "just be used for an election." Brooks denied that he read the card before signing it. This, despite the fact that all entries appearing on his card were in his handwriting. His testimony that during the 5 months before he signed the card that the campaign was in progress he did not read any such document was unbelievable. Further- more, his card dated February 1. 1975. was executed after the election had been scheduled, and after, according to the speech of General Manager Walker on January 28, 1975. that fact was probably a matter of common knowledge. Brooks was an incredible witness who struck me as inclined to afford any testimony necessary to serve his Employer's interest. Motley was an experienced organizer and it strikes me as improbable that he would make the statement of the type Brooks imputes to him concerning a election at such a late date. The denial by Brooks that he read the card is discredited as is his testimony that any improper induce- ment was extended at the time he signed. His card shall be counted toward the Union's majority in this proceeding. Laverne Brown (G.C. Exh. 141): Brown was an incum- bent employee at the time she testified. While on the stand and under oath, she unleashed one of the more fanciful canards as to the circumstances surrounding the execution of an authorization card. She claimed that she was visited by a union organizer who remained at her house discussing the Union for about 30 to 45 minutes, after which he asked her to sign a card. She allegedly told the organizer that she was not for the Union. Brown goes on to explain, nonethe- less, that she "signed the card becaus he said that that was to show that he had been to see me." She denied reading the card and on direct examination claimed that she just looked at it enough to "sign it.""' Later in her examination Brown admitted that her signature on the card alone would have suffiiced to furnish the proof of presence requested by the solicitor. When first confronted with the card, she indi- cated that she was not sure that entries, other than her signature, were in her handwriting. Her difficulty in identi- fying her handwriting on the card was followed by a com- plete shift in testimony. Thus, Brown on direct examination 122 The Brooks card was initially authenticated by union organizer Alfred L. Motley. Im Union organizer Cecil Jones had initially authenticated Brown's card and in doing so credibly testified that all writing on that card was that of the signer. had testified that the organizer told her that the only reason she was to sign was to evidence his appearance at her home. Later, after her difficulties in identifying her own handwrit- ing, she indicated that the union organizer told her that the card "was for the election." It is noted in this connection that her card bears the date of February 9, 1975. well after the election had been scheduled, and after common knowl- edge of this fact was acknowledged in the speech delivered to employees by General Manager Walker. In my opinion Brown was a thoroughly untruthful witness, not above de- ception, in her deliberate effort to repudiate the clear desig- nation evidenced by the card bearing her signature. It shall be counted toward the Union's majority in this case. Luther Edward Carraway (G.C. Exh. 33) and Shirle' Car- rawav (G.C. Exh. 32): They are husband and wife. Both were employed by the Respondent at the time they afforded testimony in this proceeding. There testimony that they did not read cards before signing was shaky and unbelievable. I also reject as incredible, their assertions that union orga- nizer Harold Mclver, with all his experience, would foster solicitation of cards as of February 6, 1975, when the Car- raway's signed, on expressions that the cards were neces- sary for an election. In my opinion these employees en- gaged in an incredible effort, while under oath, to repudiate their cards. Their cards constitute valid designations and shall be counted toward the Union's majorit in this case. Jesse David Cottle (G.C. Exh. 338). Cottle was an active employee of the Respondent at the time he testified in this proceeding. He claims that he obtained a card from fellow employee. Roy McCallop. who told him "it was just for. to have an election, or a vote." Cottle admits that McCallop read him the blue card and that in doing so he made no mention of an election. Warren McCallop, who was also an incumbent employee at the time he authenticated Cottle's card, testified without contradiction that all entries on the card were made by Cottle and that there was no reference to an election in their conversation. In my opinion the testi- mony of McCallop is more reliable. The Cottle card shall be counted toward the Union's alleged majority. Floure Fields (G.C. Eh. 21). This card was authenticated by Roger Glasper. Glasper testified that he signed his own card (G.C. Exh. 20) before Fields completed her card. Glas- per was mistaken in this regard, but it was my impression that he was an otherwise credible witness, and this discrep- ancy in his testimony is insufficient to repudiate his other- wise believable testimony as to the authenticity of General Counsel Exhibit 21. It shall be counted toward the Union's majority in this case. Bnran H. Heath (G.C. Eh. 233). Heath was an incum- bent employee at the time he testified in this proceeding. According to Heath, he signed a card at the request of union organizer Phillip Pope, who told him of the value in signing it and that it would be used to get an election in J. P. Stevens. Heath claims that some time prior to the election he requested that Pope return his card, but Heath could not relate exactly when this occurred. Although Heath, on examination by Respondent's counsel. indicated that Pope did not tell him the card would be used for any- thing other than the election, on cross-examination, he ad- mitted to being informed that the card would also be used to improve working conditions. Heath acknowledged that 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pope read the card to him. With respect to the alleged rep- resentation, I am not convinced that Heath's testimony re- flects an accurate portrayal of what was said by Pope in that connection. As for his efforts to retrieve his card, it cannot be determined that this effort predated the unfair labor practices committed by Respondent in the course of this campaign, and therefore, any action in this respect on the part of Heath was not clearly uncoerced. His card is deemed a valid union designation. Elvin C. Smith (G.C. Exh. 195). This card was authenti- cated by Michael Black. It was dated December 1974. Black acknowledged that Smith, after signing the card. asked that it too be returned. Black acknowledges that he did not return the card. Black, in my opinion, honestly ex- pressed a lack or recollection as to when this occurred, but appeared to speculate that it was a week of two after Smith signed the card. The question as to whether the revocation was valid, as preceding significant unfair labor practices need not be reached, as Smith's card could not affect the question as to whether the Union represented a majority. I do not pass upon the question presented by this card. Lonnie Turner, Jr. (G.C. Exh. 273): Turner was actively employed at the time he testified. He admits that he signed a card at the request of union organizers Phillip Pope and Louis Washington. Apart from his assertion that the orga- nizers told him that they needed so many cards signed in order to have an election and his claim that he did not read the card, Turner could not recall anything that transpired at the time he signed. Turner impressed me as an untruthful witness who took the stand with the purpose of refuting his valid designation of the Union. I discredit his testimony insofar as he imputes any improper representations to the union organizers, and further, I did not believe his assertion that he did not read the card. Although my assessment of Turner's credibility is based exclusively upon personal ob- servation and consideration of his testimony against the probabilities, it is noted in passing that Turner did attend the April 1977 meetings presided over by plant manager Shelton in which this hearing was discussed. Like other em- ployees who sought to repudiate their cards on the basis of unbelievable testimony, Turner seemed only too willing to euphemize what was actually stated by Shelton on that oc- casion2 4 by describing Shelton's reference to this hearing as limited to an expression that employees who signed blue cards simply tell the truth. His card shall be counted toward the Union's majority in this case. Jedger Whaley (G.C. Exh. 254): Whaley testified that he signed a card at the request of Phillip Pope. He allegedly told Pope that he was not for the Union but asserted that he signed when Pope kept suggesting that he sign a card "be- cause it was just to show that he did not object to the Union coming in and having an election that the card wouldn't be counted as a vote." Whaley denied reading the card. Wha- ley is an incredible witness. His testimony that he could not recall what if anything was stated by plant manager Wel- Ions at the meeting he attended in April 1977 concerning the blue card or this proceeding struck me as somewhat less than candid. It is my conclusion that any infirmity in the execution of this card would arise solely from Whaley's in- 24 See. C.C. Exh. 626. credible testimony. His card shall be counted toward the Union's majority in this case. (4) The Union's majority Based upon the foregoing. I find that at least by Febru- ary 19, 1975, the Union held validly executed authorization cards from 561 employees,' a majority of the work force of 1,000 which was then employed.2 6 3. The refusal to bargain The standard for finding that Respondent violated Sec- tion 8(a)(5) and (I) of the Act by refusing to recognize and bargain with the Union as prescribed in N.L.R.B. v. Gissel Manufacturing Co., supra, has been adequately substanti- ated on this record. As heretofore found, the Union made effective continuing demands for recognition in the appro- priate unit in which it had received valid designations from a majority of the employees. Furthermore, in the course of the organization campaign, Respondent engaged in a pat- tern of unlawful conduct designed to foment reversal of the choice manifested through authorization cards under condi- tions rendering those designations as a more reliable mea- sure of employee choice than the results of the February 19, 1975 election. In this respect it is noted that the more serious unfair labor practices occurred within the last 4 weeks of the elec- tion campaign. Thus, the implementation of the floor on profit-sharing and the grant of supplemental unemploy- ment benefits alleviated employee discontent which had be- come manifest at Wallace and which might well have given impetus to the Union's organizational effort. Elimination of this unrest by the unlawful actions of January 21 and Feb- ruary I 1. respectively, occurred shortly before the election and in all probability contributed significantly to the rever- sal of union support subsequently reflected at the polls. In addition, the dramatic, unjustified interference with em- ployee distribution on the eve and day of the election re- flected the Employer's disdain for clearly established statu- tory rights at a time proximate to the casting of ballots. That action might well have impeded employees from com- municating important prounion information to their fellow workers, and while this aspect of the interference might have been significant, the Respondent's overall conduct on that occasion subjected employee organizers to open hu- miliation and again reminded employees demonstrably of Stevens' defiance to legitimate employee rights in a manner reinforcing past management expressions as to the futility of union organization by its employees. These unfair labor practices occasioned a serious and ir- reparable disruption of the election process and contributed to the Union's loss of majority.' As for the grant of bene- 25 [Appendixes B and C omitted from publication.l 126 Appendix D [omitted from publicationl attached hereto lists the names of 18 employees whose cards were rejected on various grounds, and one whose card was left unresolved. '27 Respondent's assertion that any loss of majority in this case was attrib- utable to employee reaction to the boycott is afforded no weight in assessing the propriety of a 8(a}(5) violation in this case. As the perpetrator of unfair labor practices. Respondent is not to be favored by speculation as to the possibilities that its own unlawful conduct may not have been the controlling cause of employee defections from the Union. 452 J. 1'. STEVENS & (O., INC. fits, conventional Board remedies are ineffectual to restore the stallus qulo (ilIt' or to affird assurances that a rerun elec- tion could be held devoid of their lingering effects. Further- more, this record once more attests to repeated violations in areas where J. P. Stevens had been ordered to effect rem- edies in the past, and, indeed, the propensity of that firm to ignore statutory remedies is underscored by the fact that. while the Wallace campaign was conducted within the pro- tective province of a contempt order, analysis of the evi- dence suggests convincingly that highranking officials of Respondent acted deliberately and with a directness of pur- pose in contravening unmistakable statutory guarantees and the spirit of the contempt order to frustrate employee choice during that campaign. Upon the entire record I find that Respondent's viola- tions of Section 8(a)( I ) were sufficiently serious to support the conclusion that it refused to bargain in violation of Sec- tion 8(a)(5) of the Act since January 21, 1975, when it em- barked upon its illicit campaign to undermine the Union and to destroy the atmosphere in which a fair election could be conducted."' Having so found, it is necessary to point out that at the hearing on June 15. 1977, the complaint was amended to allege that Respondent further violated Section 8(a)(5) and (I) of the Act by, on or about April 1976. unilaterally limit- ing membership and participation of hourly employees in its profit-sharing plan and instituting a pension plan for hourly employees, all without affording notice to, or con- sulting with, the collective-bargaining representative of its employees. The affidavit of Herbert Hastings Foster Jr.. a former general counsel of Respondent,'2 ' acknowledged that in April 1976 Respondent announced that effective January 1. 1976, the profit-sharing plan would be replaced with a pen- sion plan and that this substitution would be implemented by preservation of the rights of existing participants in the profit-sharing plan, while suspending further contributions to their accounts and by curtailing all participation in the plan by new employees.30 It being clear that the Union at no time was recognized at Wallace as the representative of employees, these modifi- cations in terms and conditions of employment constituted revisions in mandatory subjects of bargaining, and Respon- dent's failure to negotiate with the Union before imple- menting them, constituted further violations of Section 8(a)(5) and (I) of the Act. I so find. IV. CASE t t-RC-3987 The objections to Employer conduct interfering with free choice in the election conducted on February 19, 1975. re- 121 It is noted that the 8(aX5) violation is predicated upon independent unfair labor practices which, as found below, are also the subject of merito- rious objections in Case II -RC 3987. I" See. G.C. Exh. 602(b). 'I Hastings Foster testified on June 22, 1977. I week after the General Counsel's request to amend the complaint in the above particulars had been granted. His affidavit was in evidence at the time, and he did not disavow its contents insofar as relevant to these new 8(a)tS) allegations. In these circum- stances, I find that the relevant portions of the affidavit constitute declara- tions against interest by an agent of the Respondent amounting to probative proof as to the nature and timing of the changes. main tor consideration. Of' the nine objections. several are predicated upon misconduct which was coextensive with independent 8(a)(1) violations found above. These include objection I (prohibition of distribution at the Holly and Carter plants on February 18 and 19). Objection 2 (surveil- lance of union activity ),1II Objection 3 (the threat communi- cated by (ranlford to employee Carroll). and Objections 5 and 6 (the implementation of a floor on profit-sharing and the announced intention to pay supplemental unemploy- ment benefits). Accordingly. Objections I. 2. 3. 5. and 6 are hereby sustained. With respect to the balance of' the objections. no evidence was adduced to substantiate Objection 9 relative to third party conduct on the part of a local area merchant, and accordingly Objection 9 is hereby overruled. Objection 8 is predicated upon a claim that in the course of the campaign the Employer made material misrepresentations under con- ditions precluding an effective response. On authority of the Board's decision in Sopping Kart Food Malrket. Inc.. 228 NLRB 1311 1977). Objection 8 is overruled. As for the balance of the issues, Objection 4 related to the alleged failure of the Respondent to release second shift observers to participate in the polling during their shifts. It will be recalled that at the Carter plant, where this alleged misconduct occurred, there were two polling periods-6 to 10 a.m. and 4:30 to 6 p.m. On the morning of the day of the election, a preelection conference was held at 5:30 a.m. Phillip Pope claimed to be the union representative respon- sible for making the arrangements for the election. He testi- fied that at the preelection conference held that morning he possessed a list of observers containing the names of desig- nated observers containing the names of designated obser,- ers from all three shifts. The observers selected by the Union from the third and second shifts attended the morn- ing conference?:2 In the course of the conference. Pope claimed that he indicated that the second shift observers were not in attendance because theN left work at 12 mid- night, and their return to the plant at that early hour would impose an inconvenience."' Jack Cottle. the personnel man- ager at the Carter and Holly plants testified that Pope did not speak directly to him during the 5:30 a.m. conference, and that he "didn't hear" him say that no employees were present from the second shift. I was not impressed with Cottle's capacity to recall precisely everything that was said at that time and regarded Pope's testimony as the more credible. The second shift started at 4 p.m. A preelection confer- ence opened at about 4:15 p.m. According to Pope's uncon- tradicted testimony he at the time asked company represen- m' In sustaining this objection. I rely only upon conduct of supervisors Stallings and Cranford on February 18 and 19 and the conduct ol all super- visors at the main entrance during the second shift change at the Carter plant on February 19. all of whom observed employees who were asserting their protected right to distribute literature. The Jenkins-Scholar incident was not shown to have occurred during the critical preelection period, and therefore it is not relied upon as a ground for setting aside the election. 12 Initially, the observers then working on the third shift were not present. At request of the Union. the Employer. after complaining that the Union had afforded too short a notice, did release three observers from work to attend that conference "' I credit Pope in this regard. 453 I)Il('ISIONS ()OF NAIO()NAIL I.ABOR REL.A'TIONS BOARD tatives for the release of Sarah ennell, .linmms Smith. Sals Navalroli. and lrmiko Keith. all second shift emnployees who were then working, but designated h the Union to act as obscrvers. At no time prior to this conference had the Union disclosed the identity of these observers.' 4 Pope tes- tified without contradiction and credibly that the CompanN indicated that as the had received no prior notification. they did not have sufficient time to release the observers. Pope then turned to the Board agent and argued that the Company had released the third shift observers in order that they might attend the 5:30 a.m. preelection conference and therefore Pope saw no reason why the second shift workers could not be released as had been done in the morning. The Board agent said "Well. I don't know, it's getting time to open the ballot box, if you got your observ- ers here I got to proceed with this election."' It does not appear that any of the four second shift em- ployees designated by the Union participated as observers during the second polling period at Carter. The Union claims that the foregoing interfered with the conduct of the election. The question is not free from doubt. The presence of observers other than Board agents is not required by the Act, and the Board has held that the use of observers at a directed election is a privilege, not a right.", Thus, where an observer is unavailable to a party, the election is not to be set aside in circumstances where that party's plight is attrib- utable to its own lack of diligence. See, e.g.. Westinghouse Applicance Sales and Service Co., a division of Westinghouse Electric Corporation, 182 NLRB 481 (1970). More specifi- cally, the Board declined to set aside an election where a union observer was prevented from serving by an employer who denied that employee permission to leave work during the election, where the employee had made no arrange- ments with the employer to allow for his release from work. See San Francisco Bakery Employer Association, e al., 121 NLRB 1204. 1206 (1958). Yet, that case is not necessarily dispositive here. In the instant case. Petitioner was denied the use of des- ignated observers, not on the basis of its own lack of dili- gence, but due to conduct on the part of the Employer from which it could rightfully assume that the second shift em- 4 I do not find that in the course of a telephone conversation at about I p.m., on the afternoon of February 19, 1975. union organizer Mike Krivosh identified second shift observers to Cottle. Cottle denied that this occurred. In this respect, the Petitioner's evidence is too vague to support a finding that those designated to serve were identified at that time. That testimony indi- cated that Pope told Krivosh to obtain a list of observers from union orga- nizer Ray Paulhus and to telephone Cottle identifying the observers. Kri- vosh. with corroboration from Paulhus, claimed that he did so. However neither Paulhus nor Krivosh could identify the list used, nor could they afford direct testimony that the second shift observers were on any such list. It would be entirely speculative to assume that whatever list was read by Krivosh on that occasion, contained the names of the specific second shift observers that later in the day Pope asked to be released. 13 Pope identified Cottle and George Shelton. manager of the Carter plant. as having declined to release the observers on that occasion. Cottle claims that he did not attend that conference. explaining that he was at the Holly plant. Shelton did not deny the conduct which Pope attributed to him at the 4:15 p.m. conference, and the fact that Pope might have been mis- taken as to the presence of Cottle, does not alter my belief of Pope's testi- mony concerning Shelton. "'See, e.g.. Breman Steel Company, 115 NLRB 247. 249 (1956); Semi- Steel Casting Co. v. N.L.R.B., 160 F.2d 388. 393 (8th Cir. 1947). ployees would be released without problem. Thus, company representatives at the 5:30 a.m. conference were aware that second shift observers were not present, and were specifi- cally advised by Pope as to the Union's intention to use them during the polling period which corresponded to their shift. No opposition to the release of these employees, nor request that their identity be revealed, was made by the Employer at that morning preelection conference. Aware that the Employer released the third shift employees from work to attend the 5:30 a.m. preelection conference, the Union could rightfully assume that a similar course would be followed with respect to the second shift observers. Ab- sent proof that the release of these employees when specifi- cally requested at 4:15 p.m. would occasion a significant disruption in plant production or discipline. the Employer's failure to release the observers was unfair, and considering the entirety of its conduct that day, smacked of an entrap- ment, impeding the Union's opportunity for assuring that its interests were served during the conduct of the election. I shall sustain Objection 4. Objection 7 related to alleged failure of the Employer to comport itself in accordance with terms specified by a de- cree of a United States Court of Appeals. Thus, it appears that the United States Court of Appeals for the Second Circuit, on September 13, 1972, in J. P. Steren.s & Co. v. N.L.R.B. 464 F.2d 1326, decreed that Respondent effect the following remedies: 10. If within the next 2 years, the Board schedules an election in which the Union participates at any of the five plants, then. upon request by the Union. the Com- pany shall afford it reasonable access to each of the Company's said plants and appropriate facilities to de- liver a 30 minute speech to employees on working time, the date thereof to be within 10 working days before but not within 48 hours prior to any such elec- tion. I . In the event that during a period of 2 years follow- ing entry of this order, any supervisor or agent of the Company convenes employees at any of the five plants and addresses them on the question of union represen- tation, upon request of the Union, the Company shall make available to the Union and its representatives on each such occasion at a mutually agreeable time, simi- lar facilities so that the Union may present its view to the employees assembled on company time for a simi- lar period. There is no dispute that the cited terms of the decree ap- plied to the election campaign under scrutiny here. Nor is there denial that the Company complied with the basic ob- ligation to afford access to a union representative to make speeches at times defined in the decree. The sole question is whether the Company afforded "appropriate facilities" fbr such speeches, and extended "similar facilities" for such purposes. The Charging Party contends that Respondent violated the decree by disparately notifying employees that attendance at speeches given by the plant manager were mandatory, while those given by the union representative were voluntary: by keeping machines running during speeches given by the union representative, while shutting them off completely during speeches given by the plant 454 J. P. STEVENS & CO.. INC manager: and through an incident in which superintendent Robert Cranford impeded employees Glasper and English from soliciting the attendance of fellow employees at a speech given by the union representative. In agreement with Petitioner the standards set forth in the Court's decree are subject to enforcement in this pro- ceeding pursuant to the Board's authority to police post- election misconduct. As the Petitioner observes, for pur- poses of this election, the contempt order has as much force and effect as any longstanding policy of the Board calcu- lated to assure that employee choice is exercised in an at- mosphere of free choice. However, with a single exception, the evidence does not persuasively establish that Respondent engaged in miscon- duct in this regard. Petitioner called four employees to tes- tify in support of the claim that machines were kept run- ning during speeches given by the union representative. Of this group, James Norman Newkirk impressed me as a highly biased witness with faulty recollection, except as to those matters prejudicial to the Employer. His testimony in material part struck me as reflecting a propensity to relay as fact, matters beyond his knowledge. with respect to Robert Glasper, Gloria English and Reba Young, although there is perhaps some truth in the fact that machines might have been in operation when they left their work areas to attend speeches given by the union representative, it is doubtful that any machines were running in the course of the speeches. The equipment utilized in a textile mill is hardly noise free. and it is unlikely that, if in operation, machinery could not be heard throughout the plant. Mclver, the union representative who made the speeches. did not testify to ever having heard equipment running while addressing the employees."' From the entirety of the credible evidence, it was my impression that any failure on the part of the Em- ployer to cut off all machinery promptly and simulta- neously before releasing employees, neither interfered with the union meetings nor constituted a substantial noncom- pliance with the terms of the contempt decree. Also unreliable was the testimony of these employees suggesting that attendance at the Mclver speeches was vol- untary. but mandatory for those given by the plant man- ager. None testified unequivocally that they were told that this was the case. The notices which are in evidence an- nouncing all meetings point out that attendance was not mandatory. One union witness, Gloria English, testified that from reading notices posted on the bulletin board she knew that the attendance at company meetings was volun- tary.' 3 I do find, however, that superintendent Robert Cranford did impair employee access to a speech given by Mclver. This relates to a single incident involving employees Gloria "3 Gloria English testified that she could not say that any machine was ever left running during a meeting addressed by Mclver. J~ It was my impression that the testimony of other union witnesses was a product of their own understanding and their sensibilities concerning the consequences of a failure to attend a management sponsored meeting. rather than what they had been told. Their testimony is not deemed credible. inso- far as they would have me find that any supervisor or representative of management informed them that attendance at a Walker speech was re- quired. English and Robert Glasper. Being dissatistied with the small attendance at one such meeting. Glasper and English elected to go through the plant and to inform others of the speech and urge them to attend. While doing so they en- countered Cranford and supervisor David Chestnutt. There is no dispute that Cranford asked Glasper "if he could help" him. Receiving no response. Cranford repeated this inquiry. Glasper answered that he was looking tor employ- ees that might not have known about the Mclver speech."' Cranford told them that they could go to the meeting bhut to leave the rest to Cranford and Chestnutt. Nonetheless. Glasper went up to certain employees to speak with them concerning the meeting, when Crantord again approached. admonishing. "I told you that you are welcome to go to the meeting, hut leave the rest of them alone."',' There is no question that the effort by (ilasper and Eng- lish to enlist others to attend the union meeting was pro- tected by Section 7 of the Act. Cranford. according to the credited testimony. attempted to, and perhaps did in fact. curtail effectively this activity. In doing so, he impaired em- ployee rights sanctioned by both the court decree and Sec- tion 7 of the Act. and in this respect Objection 7 is sus- tained. CON(CI.I SIONS ()0 LAA' I. J. P. Stevens & Co.. Inc.. is an employer engaged in commerce or an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing and Textile Workers Union. AFL-CIO CLC. the successor to Textile Workers Union of America. AFL-CIO. is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent independently violated Section 8(a)(1) of the Act, by orally instructing employees not to engage in distribution of union literature in nonworking areas on their own time: by physically preventing them from doing so: by threatening to call law enforcement authorities to prevent them from doing so: and by telling employees who engaged in such activities to go home, rather than work. 4. Respondent independently violated Section 8(a)(1) of the Act. by engaging in surveillance of employees distribut- ing union literature in nonworking areas on their own time. and by creating the impression that union activities were subject to surveillance. 39 The "can I help you" statement made by Cranford struck me on the record as a whole as a gratuitous. condescending. and unjustified remark. Attendance at the speech was admittedly voluntary, and there was no re- striction during such period of movement by employees throughout the plant. The only restriction on employees not attending was that they "con- duct themselves in an orderly manner at all times." See. e.g.. Resp. Exh. 32. Though many employees were scattered about the plant at the time. Cran- ford admits that he made no similar inquiry to anyone else. The inference is clear that Cranfoid intervened because he knew and disapprosed of what Glasper and English were up to. "I This is based upon the credited testimony of English, whose testimony in material respects was corroborated by Glasper. Their testimony reflects an aggressive concern by Cranford with respect to their union activity, and it seemed more reliable, and probable, than Cranfiord's effort to mitigate the entire incident. A dispute exists. however, concerning the question as to whether Cranford's zeal caused him to physically assault Glasper during the second confrontation In my opinion, it is unnecessary tIo resolve this issue. since at best from the Petitioner's point of siew. if it did ,ccur. it was simply an expression of rage, incidental to the clear interference hy Cranl;rd n that occasion with the Section 7 rights of employees 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Respondent independently violated Section 8(a)( ) of the Act, by advising an employee that an active union ad- herent, because of his union activity, should have been dis- charged earlier. 6. Respondent independently violated Section 8(a)( I) of the Act, by, on February 11, 1975, granting supplemental unemployment insurance compensation to certain employ- ees at the Carter plant. 7. Respondent independently violated Section 8(a)( of the Act, by, on January 21, 1975, announcing to employees that a floor would be placed upon losses which had dimin- ished the value of their accounts under its profit-sharing plan. 8. Respondent independently violated Section 8(a)( ) of the Act, by, in April 1977, telling employees to inform on other employees engaged in union activity. 9. By the conduct described in paragraphs 3. 4, 5. 6 and 7, and on the basis of the findings heretofore made with respect to Petitioner's Objections 1. 2, 3, 4, 5, 6, and 7, Respondent-Ernployer engaged in preelection misconduct interfering with the free choice of employees at the election conducted on February 19, 1977. and that election shall be set aside. 10. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at the Employer's Carter plant, Holly plant, and ware- houses at Wallace, North Carolina, including plant clerical employees, watchmen, computer programmer in the dye house, electrical technician, and plant driver; excluding office clerical employees, professional employees, cloth store clerk, managerial employees. guards, and supervisors as defined in the Act. II. On or before February 19, 1974, a majority of the employees in the unit described above, designated and se- lected the Union as their representative for purposes of col- lective bargaining. 12. At all times since February 19, 1975, and continuing to date, the Union has been the representative for purposes of collective bargaining of the employees in the unit de- scribed above, and by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of the em- ployees in said unit for the purpose of collective bargaining with respect to wages, hours and working conditions, and other terms and conditions of employment. 13. Since January 21, 1975, and at all times thereafter. Respondent violated Section 8(a)(5) and (1) of the Act, by refusing to recognize and bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in the unit described above. 14. Respondent violated Section 8(a)(5) and () of the Act, by, in April 1976, without prior notification or afford- ing the Union an opportunity to bargain, unilaterally changing the terms of its profit-sharing plan and establish- ing a pension plan on behalf of employees in the appropri- ate unit. 15. The unfair labor practices found above have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. TitI RMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. As the un- lawful conduct herein strikes at the heart of the Act and reflects a continuing indifference to the statutorily guaran- teed rights of employees, a broad cease and desist order shall be recommended, precluding Respondent from "in any other manner," interfering with, coercing, or restrain- ing employees in the exercise of their rights guaranteed by Section 7 of' the Act. Consistent with the request of the General Counsel and the Charging Party, the cease and desist provisions of the recommended Order and the notice posting requirement are designed to encompass employees of the Respondent at all plants. Officials at high corporate levels were among the architects of serious unfair labor practices in this proceed- ing. A disregard for law on their part is indicative of Ste- vens' corporate policy of antipathy to union activity and the congressionally defined framework within which such activity is to be conducted.' 4' The Stevens' posture of execu- tive contumacy poses a threat to employee rights wherever union activity might emerge. In the circumstances, exten- sion to all Stevens plants of appropriate remedial provisions is viewed as an appropriate preventive measure considering the continuing propensities suggested by the instant case. In addition to an order of broad geographic scope, the General Counsel and Charging Party seek monetary and nonmonetary relief of an extraordinary nature. The request for renumeration includes reimbursement to the Union for litigaton and organizational expenses. Nonmonetary re- dress is sought to amplify the classic 8(a)(5) refusal to bar- gain order in the interest of facilitating Respondent's coop- eration in the ensuing bargaining process through requirements imposing an immediate duty to furnish rel- evant negotiating data, as well as the establishment of an interim grievance procedure. The General Counsel seeks a conditional companywide bargaining order to be effective automatically through establishment of majority status at any location under conditions in which existing law im- poses a duty to bargain. Furthermore. the Charging Party '14 Administrative Law Judge Bernard Ries in J. P. Stevens & Co., Inc., 239 NLRB 738 outlined authoritative comments relative to the centralized origin of Respondent's history of unfair labor practices: It is elementary that Stevens' efforts since 1963 to repel the Union's organizational campaign are founded in basic company policy. In Sc- vens 1, 380 F.2d 292. 304 the Court said, "Othel evidence shows that the Company's policies were not determined at individual plant levels alone." Two years later. in Stevens V, 417 F.2d 533. 537.the Court of Appeals for the 5th Circuit stated. "Stevens has been engaged in a mas- sive multistate campaign to prevent unionization of its Southern plants . thus, we assay the order in this atmosphere of persistent, long continued, flagrant violations occurring after and in spite of repeated declarations of illegality by Board and reviewing courts." That was writ- ten 8 years, and 13 cases, before Stevens XVIII, in which the Court of Appeals for the Second Circuit noted that Respondent has earned a "reputation as the 'most notorious recidivist' in the field of labor law," leaving the impression that "the Company has engaged in a 'program of experimentation with disobedience of the law." 96 I.RRM 2150, 2152. 2159. 456 J. P. STEVENS & CO.. INC. seeks through this proceeding to expand the terms of the 1972 contempt decree to extend both the time and geo- graphic limitations imposed by the Court' 4 upon the rem- edies therein provided. These matters are considered imme- diately below. Refusal to Bargain The General Counsel seeks an expanded affirmative bar- gaining order requiring Respondent to "upon request.... bargain with the Union, or any labor organization, in the appropriate unit at any of its plants, warehouses, or other facilities, provided the Union, or any other labor organiza- tion, is certified, or the Respondent has engaged in conduct disruptive of the election processes, thereby precluding the holding of a fair election, and the labor organization in- volved enjoyed majority status." In Hecke'. Inc., 191 NLRB 886 (1971). the Board rejected such a proposal. observing. inter alia; as follows: we do not agree with the contention of the General Counsel and Charging Party that such a procedure ... would provide speedier relief in appropriate cases be- cause it would bypass normal Board procedures. Un- less the parties were in complete agreement with re- spect to all matters pertaining to the representation issue the disagreements would have to be resolved by some tribunal. In the circumstances postulated by this latter proposal, that tribunal would be the court of ap- peals acting upon exceptions to a report of a special master. There would be no guarantee that the proceed- ings before the special master would be any more expe- ditions than normal proceedings before the Board; moreover the court of appeals or its appointed special master would thereby be deprived of the Board's ad- ministrative expertise in the consideration of such dis- puted matters. While one cannot be certain that employees of J. P. Stevens ever will enjoy unimpeded opportunities for the exercise their statutorily conferred rights, the conditional com- panywide bargaining order sought by the General Counsel lacks utility and might well be counterproductive to the continuing effort to devise remedies assuring future compli- ance with the law. For the reasons stated in Hecks Inc., supra, the request for a companywide bargaining order is denied. To remedy the 8(a)(5) violation founded upon the Re- spondent's unilateral curtailment of its profit-sharing plan. the General Counsel and Charging Party urge that Respon- dent be directed to restore employee profit-sharing ac- counts, so as to allow employees hired since January I, 1976, to participate in the plan, and to pay into all accounts an amount equal to contributions and earnings which since January I. 1976 would have accumulated in said accounts until Respondent complies with said restoration order. This request is found lacking in merit. Despite the limited nature of the litigation on this issue, it is apparent that curtailment "4 N.L.RB v J P Stevens & Co. Inc. 464 F.2d 132 (2d Cr. 1972). (Stevens XI I ). of the plan was a tradeoff whereby employees, in lieu of profit-sharing, would be covered by a new pension plan. which was simultaneously announced in April 1976. The remedy sought here assumes that good faith bargaining could possibly have resulted in the retention of both plans. The circumstances, fairly evaluated, renders such a premise unrealistic and to provide a restoration and make whole order in connection therewith is viewed as oppressive and a remedy which lacks reasonable relationship to the nature of the violation or its effect. The recommended order, in this connection, shall be limited to a cease and desist against future unilateral action. The Charging Party urges that the remedy include a di- rection that Respondent establish an "interim" grievance procedure at the Wallace facilities to compliment the bar- gaining order requested in this case. Prior to this proceed- ing, the Union had been designated as representative of employees in but two plants of the Respondent--States- boro, Georgia. and Roanoke Rapids. North Carolina. To date collective-bargaining has failed to produce a contract at either location. In the course of negotiations for the first contract at those facilities, J. P. Stevens has been found guilty of bargaining in bad faith. Thus, in N.L. R.B. v. J. P. Stevens & Co.. (Gullistan Division) (Stevens X VII), 538 F.2d 1152 (5th Cir. 1976). such a finding was made by the Fifth Circuit Court of Appeals in a contempt adjudication in- volving the Statesboro plant. Recently, a like finding was made with respect to the Roanoke Rapids plant by Admin- istrative Law Judge Bernard Ries. See J. P. Stevens & Co., Inc., 239 NLRB 738 (1977). This background renders it un- likely that the bargaining order to issue in the instant pro- ceeding will be hospitably received. At the same time, Re- spondent's propensity, exhibited in several other cases, to discriminate against employees, including those at Wallace, has been clearly established. Nonetheless the enforced es- tablishment of any formal grievance procedure comes dan- gerously close to collision with the teachings of the Su- preme Court in H. K. Porter Compan. Inc. v. N.L.R.B, 397 U.S. 99 (1970). However, some measure of protection in this area is warranted. Accordingly, it shall specifically be provided, in addition to the convential cease and desist against unilateral action, that Respondent take no adverse action, whether ostensibly oriented in economic consider- ations or necessity for discipline, against any employee or group of employees at the Wallace facilities, without first notifying the Union and affording the latter an opportunity to consult therewith. On the other hand, the Charging Party's request for an order requiring production of certain information relevant to the administration of grievances and contract negotia- tions, together with the wage rates, classifications, and dates of hire at all plants is deemed inappropriate as bearing no relevance to the issues in this case. while delving into areas in which Respondent's affirmative duty. during the process of collective bargaining, are clearly and unmistakably es- tablished by precedent under the Act. Organizational Costs The Board has declined to provide for reimbursement of organizational expenditures where there is no demonstrable 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "nexus" between extraordinary expenditures for such pur- poses and the unlawful conduct.' 3 Such a causual link ex- ists in this case. Thus, the 1974 1975 campaign at Wallace was the third successive organizational effort attempted by the Union. The first began in 1969 and was abandoned in 1970 with the Union's endeavor to process unfair labor practices arising in the course of that campaign. This latter venture met with success, and with the ostensible aid of a contempt decree, the Union renewed the effort at Wallace in early 1973. That campaign terminated at summer's end that same year, again in the face of alleged unfair labor practices. Neither campaign culminated in an election. It will be recalled that on July 13, 1972, the United States Court of Appeals, Second Circuit, issues a contempt order covering the Wallace employees.'4 In that proceeding, the Respondent's contemptuous behavior was found to have included the unlawful, discriminatory discharge of 3 Wal- lace employees because they supported the Union during the 1968 campaign. The contumacy exhibited by Respon- dent in that campaign was followed by contemptuous acts during the 1973 campaign. Thus, violations in 1973 were the subject of a more recent contempt determination by that same Court, issued August 31, 1977.14' The Board's most recent pronouncement concerning the reimbursement of organization costs appears in Heck's Inc., 215 NLRB 765, 768 (1974): Whether, for instance, an award to compensate for ex- cess organizational costs ought, in the future, to be considered as necessary to restoring the status quo ante in certain factual contexts rather than as an extraor- dinary remedy to be applied only in the case involving frivolous defenses, as we have heretofore held, is an issue which we do not intend here to foreclose from thorough consideration in future cases. With the foregoing in mind, it is acknowledged that the Board's remedial arsenal ought only be tapped in the inter- est of safeguarding employee rights. But one cannot lose sight of the fact that those rights have been threatened over the years by the efforts of J. P. Stevens to destroy the Union through persistent violations of the law, Board orders, court decress, and contempt citations. No end appears to this un- relenting effort to exhaust the resources of this Union' * in the hope that eventually it will be left with no alternative other than complete withdrawal, an event which more than likely would provide the final stroke to the statutory guar- antees which employees in this and other plants have sought to vindicate. This record convincingly demonstrates that past efforts by the Union to organize employees at Wallace were abandoned in the face of flagrant behavior on the part of the Respondent which violated both the Act and outstanding court orders. Thus, the record herein warrants the conclusion that the Union in 1974 was required to en- "1 See Tidee Products, Inc., 194 NLRB 1234 (1972); Winn-Dixie Stores, Inc., v. N.L.R.B. 575 F.2d 1107, (5th Cir. 1978). 1"464 F.2d 1326. "14 N.L.R.B. v. J. P. Stevens & Co., Inc., 563 F.2d 8 (2d Cir. 1977). 14 As this record attests, Respondent's unlawful conduct, in the face of viable contempt orders, continued in 1974-75. In addition, an 8(aXI) viola- tion growing out of that campaign was found in Stevens XVI, 220 NLRB 270. gage in a renewal of a prolonged attempt at organization, requiring extraordinary expenditures, which it would not have sustained were Wallace employees afforded the oppor- tunity to effect their right of self determination in an atmo- sphere free of employer misconduct. In view of the forego- ing, restoration of the status quo ante to the extent possible is imperative, and saving the Union whole for unnecessary organization costs is viewed as contributing to that end. It shall be recommended that Respondent reimburse the Union for all reasonable and necessary costs and expenses sustained in the course of the 1974-75 campaign plus inter- est as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). Litigation Expenses With respect to the claim that the Charging Party be reimbursed as to its costs of litigation, the Board has indi- cated that normally "litigation expenses are not securable by the Charging Party in a Board proceeding even though the public interest is served when the Charging Party pro- tects its private interest before the Board."'47 It has, how- ever. with court approval, recognized an exception to that policy in order to discourage frivolous litigation.' 48 Such re- lief has been withheld, on the other hand, where defenses were debatable, notwithstanding the aggravated nature or pervasiveness of a respondent's unfair labor practices."'49 Nonetheless, the appropriateness of such relief in aggra- vated cases, remains open to consideration. For the Board, upon remand of Heck's Inc., supra, from the Supreme Court,'? reaffirmed its distinction between the award of ex- cessive litigation fees to discourage "frivolous" litigation, and the denial of such relief where the unfair labor prac- tices are simply "aggravated." In doing so, however, the Board states: Nor do we intend to exclude from consideration whether, in determining the appropriateness of awards of attorney fees, litigation costs, and excess organiza- tional costs, we ought to apply some more definitive criterion than the distinction between "debatable" and "frivolous" defenses which thus far we have been uti- lizing.'' Unquestionably, confining awards of litigation costs to cir- cumstances where litigation is frivolous serves administra- tive convenience, for the Board as a regular and routine matter is confronted with violations on the part of employ- ers and unions that may rightfully be described as "aggra- vated." But few, if any, who are subject to regulation under this Act, have achieved the excesses of J. P. Stevens. Its history suggests a third standard for measuring the appropriateness "47 Tiidee Products, Inc., 194 NLRB 1234, 1236 (1970). i See International Union of Electrical, Radio and Machine Workers, AFL CIO [Tiidee Products, Inc.] v. NL.R.B., 426 F.2d 1234 (1970), cert. denied 400 U.S. 950 (1970). 9 1 Heck's Inc., 191 NLRB 886, 889 (1971). See also Teri-Flex Products, Inc.. 200 NLRB 3 (1972). and Condon Transport, Inc.. 211 NLRB 297 (1974). 5 0 N.L.R. B. v. Food Store Employees Local 347 Hecks Inc.], 417 U.S. I (1974). I' 215 NLRB 765, 768 (1974). 458 J. P. STEVENS & CO.. INC. of the type of relief under consideration here. Though some 15 years have passed since the Union's first organizational drive, J. P. Stevens has yet to alter its dedication to outright rejection of this Statute and to frustration of the administra- tive and judicial remedies contemplated thereby. The expe- rience at Wallace, North Carolina. has been nothing short of outrageous. To date, two separate contempt citations are traceable to unlawful conduct at those facilities. Although the campaign under scrutiny in the instant proceeding was conducted under safeguards of a prior contempt order, it too was spurned, with Stevens once more reversing the ex- pressed choice of employees through unfair labor practices initiated at high management levels. Obviously the pattern of disobedience manifested at the Wallace plants and elsewhere has burdened the Union. the Board, and the Courts with repeated litigation. As matters have stood for some time, the ability of the administrative- judicial system to withstand the Stevens assault upon its integrity is owing, in large measure, to the Union's vigi- lance, and unrelenting will to commit its legal resources to the fray. Were it to succumb, the exploits of J. P. Stevens would serve as a historic touchstone for those who would defy the law by subjecting employee organization to the type of endurance struggle experienced here. In sum, it shall be recommended that Respondent reim- burse the Union for all reasonable and necessary costs in- curred in litigating this proceeding. The predicate for such relief is not limited to the seriousness and sustained nature of the violations found herein, but also finds support in Stevens' policy of intransigence whereby court-enforced or- ders of the Board have been flouted and contempt decrees, reduced to mockery. In the circumstances, the aware of litigation expenses is viewed as remedial and nonpunitive, and a remedy which contemplates the recovery of costs which by no means should be viewed as collateral. Although not specifically requested. this remedy shall be extended to the Board as well. Once again, in this proceed- ing, J. P. Stevens has engaged in deliberate violations of the law and when considered against the history of contumacy exhibited by this Employer, it is only reasonable that the general tax paying community be relieved from shouldering the expenses entailed in protracted litigation at the hand of Stevens' lawlessness. Thus, it shall be recommended that Respondent be required to reimburse the Board and the Union for their expenses incurred in the "investigation, preparation, presentation, and conduct of these cases, in- cluding the cost and expenses incurred for reasonable coun- sel fees, salaries, witness fees, transcript costs, printing costs, travel expenses and per diem, and other reasonable costs and expenses."' The Access Package The Charging Party's request for renewal of the "access package" set forth in the 1972 contempt adjudication has been accomodated by the action of the Court of Appeals for the Second Circuit in the 1977 contempt adjudication. "' See Ttdee, supra, 194 NLRB ati236 37 Thus, on October 19. 1977, that Court entered an order against the Respondent.' which included the following: I . Upon request of the Amalgamated Clothing and Textile Workers Union of America, AFL CIO (the Union), made within two years from the date hereof. the Company shall immediately grant the Union and its representatives reasonable access to the plant bulle- tin boards and all places where notices to employees are customarily posted. at each of the Company's plants in North Carolina and South Carolina for a pe- riod of one year from the date of request. 12. In the event that during a period of two years following entry of this order any supervisor or agent of the Company convenes any group of employees at any of the Company's plants in North or South Carolina and addresses them on the question of union represen- tation, the Company shall first give the Union reason- able notice thereof and afford two Union representa- tives a reasonable opportunity to be present at such speech, and, upon request of said representatives, the Company shall permit one of them to address the em- ployees for the same amount of time as the Company's address. 13. If within the next two years, the Board sched- ules an election in which the Union participates at any of the Company's plants in North or South Carolina, then, upon request by the Union. the Company shall afford at least two Union representatives reasonable access to each of the Company's said plants and appro- priate facilities to deliver a 30-minute speech to em- ployees on working time, the date thereof to be within 10 working days before but not within 48 hours prior to any such election. 14. Upon request of the Union, the Company shall immediately furnish it with lists of the names and ad- dresses of all of the Comlpany's employees at each of its plants in North and South Carolina as of the latest available payroll date, and shall furnish a corrected, current list to the Union at the end of each six months thereafter during the two year period. 15. For the two year period, upon request of the Union. the Company shall without delay, permit a rea- sonable number of Union representatives access for reasonable periods of time to all its canteens, rest and other non-work areas, including parking lots, within each of its plants in North and South Carolina, for the purpose of communicating orally and in wit:ing with the employees in such areas during changes of shift, breaks, mealtime, or other non-work periods. The Company shall formulate rules on this subject in the same manner as provided in paragraph 10. These privisions appear sufficientl, current to obviate pre- sent revision in a manner which could result in overlapping and confusing compliance periods. As for the Charging Party's claim that the substantive terms of the above order be incorporated herein and ex- tended beyond the States of North and South Carolina on a companywide basis. precedent implies that an extension of h'N.L. R B v. P Stevens Co. Inc. 563 F 2d 8 (2d Clr. 1977) 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "access remedies" beyond the employees directly affected by unfair labor practices is to be afforded close scrutiny. To date, the Board has confined the remedies under consider- ation here to the plant 54 or areas in which the unfair labor practices arose."5 On the other hand, in Stevens VIII, a case arising in Roanoke Rapids, North Carolina, the Board re- jected the Union's request that the terms of its Order in that case be extended to include all Stevens plants in North Carolina, South Carolina, and Georgia.'"5 The remedies in question here constitute affirmative aids to organization, and since presently extant at North and South Carolina plants, the emerging question is whether the unfair labor practices in this case create a sufficient imbal- ance in plants located elsewhere to warrant union access beyond those States. I think not. To require notification whereby all employees are assured that unfair labor prac- tices committed at one location will not be repeated at their plant is one thing, but to afford direct substantive organiza- 1' See, e.g., Stevens XII, 190 NLRB 751; Stevens VII, 179 NLRB 254, 289; Stevens V. 171 NLRB 1202. " Such remedies were extended on a multistate basis (North and South Carolina) in Stevens 1. 157 NLRB 869, Stevens 11, 163 NLRB 217; Stevens 111, 167 NLRB 266 and Stevens IV, 167 NLRB 258. where, in each case, unfair labor practices were committed on a multistate, multiplant basis. 56 181 NLRB 666, fn. . tional support at those other locations, absent a basis for inferring that the other plants have been influenced by ille- gal conduct found herein, is quite another. Accordingly, the Charging Party's request that the access package be broad- ened beyond the Carolinas shall be denied on the basis of Stevens VIII, supra. Notice Posting As heretofore indicated the notice herein shall be posted on a companywide basis and mailed to employees at all plants individually. In addition the Charging Party requests that employees be assembled at mandatory meetings on company time at which the notice should be read by a union representative. While not convinced that the purpose behind posting re- quirements would be effectuated through such procedures, it is believed that the Union should be afforded some role in this preventive process. Accordingly, it shall be recom- mended that mandatory employee meetings be convened on working time at all of Respondent's plants where, in the presence of a union representative, the notice shall be read to employees by the highest management official in the plant. [Recommended Order omitted from publication.] 460