J.P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1979

246 N.L.R.B. 1164 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. P. Stevens & Company, Inc. and Amalgamated
Clothing and Textile Workers Union, AFL-CIO.
Cases 10-CA-12611, 10-CA-12838, 10-CA
13247, and 10-CA 13304
December 27, 1979
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On April 27, 1979, Administrative Law Judge Hen-
ry L. Jalette issued the attached Decision in this pro-
ceeding in which he found, inter alia, that Respon-
dent had engaged in certain unfair labor practices in
violation of Section 8(a)(1) of the National Labor Re-
lations Act, as amended, and recommended that Re-
spondent be ordered to cease and desist therefrom,
and to take certain affirmative action designed to
remedy its unlawful conduct. The Administrative
Law Judge further found no merit to the complaint's
allegations that Respondent violated Section 8(a)(l)
and (3) of the Act by discharging employee Anna
Mae Jones and reducing the hours of employee Mol-
ly Pulliam because of their union activities. Respon-
dent, the General Counsel, and the Charging Party
(herein also called the Union) filed timely exceptions
to various of the Administrative Law Judge's findings
and conclusions, with briefs in support of those ex-
ceptions. Thereafter, Respondent filed a brief in re-
sponse to the exceptions filed by the General Counsel
and the Charging Party.
On July 12, 1979, the Charging Party filed a motion
to reopen the record to adduce evidence allegedly
bearing on the 8(a)(3) allegations which the Adminis-
trative Law Judge recommended be dismissed and on
the issue of whether a bargaining order should be
granted. The evidence sought to be introduced con-
cerns the surveillance of the Union's organizing ef-
forts and of Respondent's employees, conducted by
city officials of Milledgeville, Georgia, allegedly with
Respondent's approval and cooperation; and is the
subject matter of a civil action pending before the
United States District Court for the Middle District
of Georgia.
On August 2, 1979, the General Counsel joined the
Charging Party, filed a motion to reopen the record to
hear evidence on the same issue. The General Coun-
sel further stated his intention to seek leave to amend
the complaint in this proceeding to include an 8(a)(1)
allegation of illegal surveillance conducted by Re-
spondent. The General Counsel further stated his in-
tention to revoke the earlier dismissal of a charge al-
leging a violation of Section 8(a)(5) of the Act in Case
10-CA-12838, to seek leave to amend the complaint
to add an allegation of such a violation, and to seek a
remedial bargaining order. However, the General
Counsel has not as yet filed any motion to amend the
complaint, and we make no rulings or determinations
as to these matters.
On August 13, 1979, Respondent filed a memoran-
dum in opposition to the Charging Party's motion,
and on August 27, 1979, it filed one in opposition to
the General Counsel's motion. Thereafter, the Gen-
eral Counsel filed a response to Respondent's memo-
randums in opposition.
In their motions, the General Counsel and the
Charging Party contend, inter alia, that the evidence
concerning Respondent's alleged participations in
surveillance of the Union's organizing activities at
Milledgeville might cause the Administrative Law
Judge to revise certain of his findings, particularly
those involving credibility and the attitude of the Mil-
ledgeville plant officials toward the Union, and might
affect the Administrative Law Judge's ultimate con-
clusions with respect to the alleged violations of Sec-
tion 8(a)(3) of the Act. In opposing the motions, Re-
spondent argues, inter alia,s that the evidence the
General Counsel and the Union seek to introduce is
immaterial to the 8(a)(3) issues because the alleged
surveillance of union supporters has no bearing on
the question of whether Jones and Pulliam were dis-
parately treated because of their union activities, of
which Respondent concedes it had knowledge. Thus,
Respondent contends, even if unlawful surveillance
by it were established, such a finding would not affect
any of the Administrative Law Judge's conclusions.
Respondent also contends that the General Counsel's
and the Charging Party's motions to reopen the rec-
ord are untimely and should therefore be denied. In
this regard, Respondent alleges that on April 24,
1979, prior to issuance of the Administrative Law
Judge's Decision herein, the Charging Party tele-
graphically requested the Administrative Law Judge
to defer his Decision pending a motion to reopen the
record which the Union would file "promptly based
on newly discovered evidence." Respondent notes
that the motion was not filed until July 12. and con-
tends that it was therefore untimely.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I Respondent argues that, by its motion, the Union seeks in effect to
amend the complaint to include an allegation of unlawful surveillance in
contravention of the statutory provision that the General Counsel has the
sole authority to issue complaints. and that any amendment to the complaint
sought by the General Counsel should be disallowed as both barred by Sec.
10(b) of the Act and unrelated and not closely related to the existing issues in
this case. As noted above, the General Counsel has not filed any motion to
amend the complaint, and we therefore find it unnecessary to pass at this
time upon Respondent's contentions that no amendment should he pernit-
ted.
246 NLRB No. 133
1164
J. P. STEVENS & COMPANY. INC.
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board, having considered the record and the
Administrative Law Judge's Decision in light of the
motions filed by the Charging Party and the General
Counsel, and the opposition to these motions filed by
Respondent, finds it necessary to remand this pro-
ceeding to the Administrative Law Judge to reopen
the record for the limited purpose of receiving evi-
dence relating to the General Counsel's and the
Charging Party's motions,2 and giving full effect to
any new findings based thereon as they may bear
upon his original findings, conclusions, and recom-
mendations.)
We agree with the General Counsel and the Charg-
ing Party that the additional evidence they seek to
adduce may be relevant to the alleged violations of
Section 8(a)(3) of the Act. We note that the Adminis-
trative Law Judge relied in part on the absence of
evidence of union animus in his resolution of the
8(a)(3) allegations. Further, while the Administrative
Law Judge noted that Respondent in previous cases
had discharged union adherents in order to defeat or-
ganizational campaigns, the Administrative Law
Judge observed that "each case must stand on its own
facts." The Administrative Law Judge decided cer-
tain key credibility issues in favor of Respondent in
concluding, first, that Respondent had not seized
upon Jones' alleged involvement in a fight as a pre-
text to justify discharging a union adherent and, sec-
ond, that Pulliam's reduction in hours resulted from
an overall reduction in hours and from Pulliam's own
unwillingness to take steps to acquire additional
hours of work, rather than from union animus.
In making the above findings, the Administrative
Law Judge's comments suggest that he implicitly
found that Respondent had not displayed at the Mil-
ledgeville plant either the degree of hostility toward
attempted organization of its employees that would
support an adverse credibility finding, or the willing-
ness to engage in unlawful activity in order to defeat
the Union. The evidence sought to be adduced, if
credited, would tend to establish that Respondent en-
gaged in unlawful surveillance of union supporters,
and further that a member of the law firm serving as
Respondent's labor counsel encouraged the continued
receipt of lists of union supporters. While we cannot
determine whether the Administrative Law Judge's
conclusions would be affected by such evidence, it
2 All other issues raised in this proceeding will e held in abhe)ance pend-
ing issuance of the Administrative Law Judge's Supplemental Decision.
I Respondent filed a motion to reopen the record to show that it has com-
plied with the provisions of the Act. The Administrative Law Judge denied
this motion in his Decision. We find no merit to Respondent's position in this
regard and. for the reasons cited hb the Administrative l.a Judge. we affirm
his denial of Respondent's motion
may be that such evidence. if credited, might cause
the Administrative Law Judge to reconsider the
8(a)(3) allegations on the basis that such evidence
demonstrates a greater propensity on the part of the
Respondent to interfere with its employees' union ac-
tivities than had been established in the record devel-
oped in the original hearing. We make no determina-
tion on this issue, but merely state the possibility to
indicate the relevancy of the evidence sought to be
adduced to the issues in this case.
Contrary to Respondent. we find that the General
Counsel's and the Charging Party's motions to reopen
are not untimely. It is true that the Charging Party
did not file the instant motion to reopen the record
until more than 2 months after the Administrative
Law Judge issued his Decision. However, we note
that Respondent states, and it is uncontroverted, that
on April 24, 1979, the Charging Party sent a telegram
requesting that the Administrative Law Judge defer
his Decision pending receipt of a motion to reopen
the record. Inasmuch as the Administrative Law
Judge's Decision issued on April 27, 1979. the Charg-
ing Party's telegram was too late to secure consider-
ation of this evidence by the Administrative Law
Judge. The copy of the telegram submitted by Re-
spondent states that copies were sent to all parties;
hence, all parties were thereby notified of the Charg-
ing Party's intention to file the motion promptly after
the Charging Party first learned. through depositions,
of the extent of the evidence which could implicate
Respondent. In these circumstances, we see no preju-
dice to Respondent merely because there was some
delay in the actual filing of the motion to reopen.
We can give no weight to the affidavits indicating
that Respondent's employees and union organizers
were aware as early as January and Februarv 1979
that they were being placed under surveillance. Sim-
ply stated, there is nothing in those affidavits that sug-
gest that there was any indication that any observers
other than the city police were involved in the surveil-
lance. While the depositions submitted by the Charg-
ing Party, taken in late April and early May,. do con-
tain testimony that the results of the surveillance were
given to Respondent's manager and to certain other
businessmen, those depositions also indicate that the
dissemination of information on union activities was
concealed from Respondent's employees and the
Charging Party. Thus, absent evidence that the
Charging Party became aware of Respondent's possi-
ble role in the surveillance of employees' union activi-
ties prior to April 1979. we cannot conclude that the
Charging Party was tardy in waiting until April 24.
1979. to give notice of its intention to raise these mat-
ters in the instant proceeding. Nor has Respondent
indicated in what manner, if any, it was prejudiced b\y
the Charging Party's failure to file its motion earlier.
I 1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are mindful of the mandate of Section 102.21 of
the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended, that "It]he rules and
regulations in this part shall be liberally construed to
effectuate the purposes and provisions of the Act."
We find that it would not effectuate the purposes of
the Act to refuse, on the basis of an asserted techni-
cality, to allow the General Counsel and the Charging
Party to adduce evidence which was unavailable at
the time of the hearing, and which might have a sub-
stantial impact on the result of this proceeding.
Finally, we find no merit in Respondent's asser-
tions that the evidence sought to be adduced should
be excluded because it is contradicted by other evi-
dence from the civil proceedings referred to earlier.
The necessity of making credibility resolutions con-
cerning the newly discovered evidence is one of the
factors leading us to remand this proceeding to the
Administrative Law Judge, and Respondent will have
the opportunity there to contest the veracity of the
witnesses.
For the reasons stated above, we shall grant the
General Counsel's and the Charging Party's motions
to reopen the record for the purpose of introducing
evidence relating to allegations of surveillance of Re-
spondent's employees and the Charging Party's orga-
nizers.
It is hereby ordered that this proceeding be, and it
hereby is, remanded to Administrative Law Judge
Henry L. Jalette for the purpose of holding a hearing
to receive the Charging Party's and the General
Counsel's evidence and such rebuttal evidence as ap-
propriate on the merits of the issue of surveillance
alleged in the Charging Party's and the General
Counsel's motions to reopen the record.
IT IS FURTHER ORDERED that the above-entitled
proceeding be, and it hereby is, remanded to the Re-
gional Director for Region 10 for the purpose of ar-
ranging such further hearing; and that said Regional
Director be, and he hereby is. authorized to issue
prompt notice thereof.
Ir IS FURTHER ORI)EREI) that, upon the conclusion
of such hearing, the Administrative Law Judge shall
prepare and serve on the parties a Supplemental De-
cision in said case containing his resolutions of the
credibility of witnesses, findings of fact, conclusions
of law, and recommendations; and that, following the
service of such Supplemental Decision on the parties,
the provisions of Section 102.46 of the Board's Rules
and Regulations, Series 8. as amended, shall be appli-
cable.
DECISION
SIAI 1i ; ( I111( CASI
HEiNRY 1.. JAI Ir-rT: This consolidated proceeding in-
volves allegations that the above-named Respondent vio-
lated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended. The proceeding is based on the
following charges filed by the above-named Union: Case
10 CA 12611 filed February 22. 1977,1 pursuant to which
complaint was issued on May 6, which complaint was
amended on July 13: Case 10-CA 13838 filed June 3,
amended on July II. and pursuant to which complaint is-
sued on November 9 with an order consolidating cases
Case 10-CA-13247 filed November 14. pursuant to which
complaint issued on March 14, 1978, with an order consoli-
dating cases; and Case 10-CA 13304 filed December 9.
pursuant to which complaint issued on April 18, 1978. with
an order consolidating cases.
On May 1, 2. and 3, 1978, hearing was held in Milledge-
ville. Georgia.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs of the par-
ties, I hereby make the following:
FINDINGS OF FA(I
I. IIEI BUSINESS ()F RSP()ONI)EN
Respondent is engaged in the manufacture and sale of
textile products in several States of the United States, with
a plant at Milledgeville, Georgia, the location of the unfair
labor practices alleged herein. Respondent admits it meets
the Board's $50,000 direct outflow standard for the asser-
tion of jurisdiction.
11. IlIF At. Ii(ElD) UNFAIR l.ABOR PRA(TII(ES
A. The Alleged Discrimination
1. The discharge of Anna Mae Jones
a. hey acts
Anna Mae Jones was employed by Respondent from
May 1972 to May 8. 1977, when she was discharged. At the
time of her discharge, she was a machine operator on the
first shift under the supervision of Rollin Ivy. According to
Jones, on Monday, May 16, about 2 p.m., employee Charlie
Phillips approached her in the canteen and asked her for
the address of her friend, Bobbie Jean Tufts. Jones refused
to give it to him and he told her "you must be going with
her." Upon her return to her machine, Jones reported Phil-
lips' remark to Tufts.
About 5 minutes before the end of the shift (3:55 p.m.),
Jones was at her machine when she noticed Phillips laugh-
ing and talking to employees William Dumas and Ordell
Halsey. She assumed he was talking about her and beck-
oned him over and told him to stop talking about her and
Tufts as he had. He said he would. About then, Tufts, who
worked a few feet away, came over and told Phillips the
same thing, reminding hirr that Jones was married and had
a family. Phillips replied he was married, hut that he still
wanted to have intercourse with Tufts and he put his hand
on her shoulder. Tufts slapped him and his glasses fell off.
I tnless ,therwi.e Indicated. all dates hereinatter are 1977.
1166
J. P STEVENS & COMPANY, INC.
Jones pulled Tufts back and told her to stop. She did not
touch Phillips. The bell rang and they left.
Tufts' version of the incident was the same as Jones, in-
cluding corroboration that Jones did not slap or touch Phil-
lips or engage in the fight at all. Phillips gave essentially the
same version as Jones of their conversation in the canteen
and gave essentially the same version of the incident at the
machine except that he denied Tufts slapped him and said
nothing about putting his hand on Tufts' shoulder: rather.
he testified she grabbed his shirt and he was holding her
back and Jones tried to split them up.
On Tuesday, on reporting to work, Jones, Tufts, and
Phillips were told to report to Supervisor Ivy's office where
each was interviewed separately by overseer Henry Braddy.
Braddy asked Jones what happened the day before and she
told him about the canteen incident and she described the
incident at the machine as above. Jones was suspended un-
til Thursday and, on Thursday, Braddy told her she was
fired.
Tufts testified that she told Braddy in the interview that
she had been complaining about Phillips and nothing had
been done, and that she was talking to Phillips about his
remarks when he placed his hand on her shoulder and she
slapped him. Braddy asked her why she had not waited
until she got outside and she said she had waited all she
could. Tufts was discharged.
Phillips testified he told Braddy that Tufts tore his shirt
and, in answer to the question of Jones' involvement, he
stated Jones called him over and that he heard Jones telling
Tufts, "Stop, Bobbie Jean, don't do this." Phillips was dis-
charged.
Employee James Hargrove witnessed the incident at the
machine and testified that Jones did not call Tufts over and
that Jones tried to break up the fight. According to Har-
grove, Phillips pushed Tufts against a machine after she
grabbed his shirt and that is when Jones intervened. So did
Hargrove. Employees Richard Devero and William Dumas
also witnessed the incident and described Jones' role as that
of breaking up the fight.
Hazel Reynolds, a second-shift machine operator, testi-
fied that she was in the smoking area waiting for the shift to
start on May 16 when she overheard Tufts say to Jones,
"You go get him and bring him halfway." Jones went to
what Reynolds referred to as the lighthouse department
and returned with Phillips. Reynolds did not testify to hear-
ing anything further, only that a fight started with all three
hitting with hands and fists. She testified Tufts started fight-
ing and Jones joined in.
After it was over, Reynolds asked her supervisor, James
Blackwell, why he did not stop the fight and he indicated he
did not know anything about it. Later, Braddy questioned
Reynolds about the incident and she told him what she
heard and saw as above.
Braddy testified that he learned of the fight from Black-
well and he went to Reynolds who told him that Jones,
Tufts, and Phillips had gotten into a fight. The following
morning he questioned the three separately. Phillips told
him nothing other than that he was in the wrong. Braddy
described how Tufts told him of being bothered by Phillips.
but he did not really describe what she said about the inci-
dent at the machine except an admission by Tufts that she
was mad.
According to Braddy. when he asked Jones about the
incident, she described the incident in the canteen (accord-
ing to Braddy, Jones and Tufts were together in the canteen
when Phillips spoke to them), and she told him how she saw
Phillips telling his friends that Jones and Tufts were going
together and that Tufts told her to get Phillips halfway and
she would take care of him. She motioned Phillips over and
the fight occurred. Braddy testified Jones told him they
were all fighting. She did not say she was trying to stop the
fight.
Supervisor Ivy generally confirmed Braddy's testimony.
b. 4 ,nalvsts and conclusions
The ultimate issue regarding Jones' discharge is Respon-
dent's motive for the discharge, that is, her involvement in a
fight or her union activity. Before analysis of the May 16
incident. certain elements of proof necessary in any dis-
charge case can be taken as established. Thus. Respon-
dent's animus and its proclivity for violating the Act are too
well documented to be recited here again, and its knowl-
edge of Jones' support of the Union is undenied.
Despite the existence of these elements of proof, the bur-
den of showing that Jones was discharged because of her
union activities rather than for cause still remains on the
General Counsel. To meet that burden, the General Coun-
sel and the Union rely on the argument that Jones was not
guilty of fighting, the asserted reason for her discharge, but
rather was breaking up the fight. Before addressing that
argument, I note and find that it was Respondent's policy
to discharge employees who fight in the plant and there is
no evidence that the policy has not been consistently en-
forced. The incidents adverted to by the General Counsel
(Stanton-Ross and Watson-Bundage-Harper) do not show
otherwise. In the Stanton-Ross incident, Stanton struck
Ross and was not discharged. but the evidence indicates
that he was attacked by Ross and any blows he may have
struck were a natural reaction to an unprovoked attack. In
the Watson-Bundage-Harper incident, Harper was not dis-
charged because she was not involved in the fight, but was
a peacemaker.
The argument that Jones was breaking up the fight poses
two issues: Was she in fact trying to break up the fight and,
if so, does it follow that her discharge was unlawfully moti-
vated. I am persuaded and find that Jones was involved in
the fight. I base this finding on the testimony of Hazel
Reynolds that she heard Tufts ask Jones to bring Phillips to
the machine and that she saw Phillips, Tufts. and Jones
fighting. I credit this testimony because Reynolds appeared
to me to be a totally disinterested witness. My only reserva-
tion was whether she was able to distinguish between a
situation in which an individual was trying to separate oth-
ers who were fighting and one where all the individuals
were fighting. I conclude Reynolds did distinguish. In cred-
iting Reynolds. I am discrediting not only Phillips. Tufts.
and Jones, but also three eyewitnesses, James Hargrove,
William Dumas. and Richard Devero. I am persuaded they
were all partisan and their testimony is not deserving of
credence.
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming, arguendo, that Jones was trying to break up
the fight, that fact would not aJbrtiori render her discharge
unlawful. It is clear that Reynolds had told Braddy that
Jones was in the fight and if Braddy believed her the fact
that she was wrong would not render the discharge unlaw-
ful unless it can be shown that he seized upon the report to
rid Respondent of a union supporter. The record argues
against such a finding. The union campaign had been in
progress at the plant since the summer of 1976. The Union
had demanded recognition in September 1976. Yet, there is
no showing that in all the months that intervened before
Jones' discharge did Respondent resort to the discharge of
union supporters as a means of defeating the organizational
attempt. True, Respondent has frequently done so in the
past, but each case must stand on its own facts.
Finally. there is the matter of' the extent of Braddy's in-
vestigation of the incident. Clearly, Braddy could have con-
ducted a more thorough investigation (and perhaps avoided
a hearing on this matter), but in evaluating the extent of his
investigation one must consider again the fact that one dis-
interested witness had told him Jones was fighting. He had
interviewed the three participants, none of whom had told
him, according to their own testimony, that there were wit-
nesses to support Jones' version of the incident. In the cir-
cumstances, the lack of a more thorough investigation is
insufficient basis to warrant a finding that the discharge was
unlawfully motivated. In any event, if Braddy is credited,
no investigation was required because all the participants in
the fight admitted their involvement. Braddy was not a very
articulate witness and his testimony about the interviews
could have been more precise. Nevertheless, I am per-
suaded he testified truthfully and I credit him. While it may
seem farfetched that Jones would admit her involvement in
the fight, it is not implausible she would do so in the belief
that her conduct was justified in view of Phillips' remarks.
For all the foregoing reasons, I shall recommend dis-
missal of the allegations relative to Jones' discharge.
2. The alleged discrimination against Molly Pulliam
Molly Pulliam has been employed by Respondent for
many years, the last 10 years as an instructor in the training
department. She was very active on behalf of the Union
and the record indicates clearly that Respondent knew she
was a supporter of the Union.
Instructors work along with trainees. When they have no
trainees to train, they do production work. The complaint
in Case 10 CA-13304 alleges that, on or about June 13.
1977, and thereafter, Respondent reduced the regular and
overtime hours of Pulliam because of her union activities.
low the date of June 13, 1977, was arrived at for fixing the
period of discrimination is not clear from the record, except
that it coincides with the 10(b) date. Insofar as the evidence
indicates, Pulliam testified that, in July 1977, she was get-
ting only 4 days of' work on the rotoconer. On the fifth
working day, Respondent assertedly substituted instructors
Charlotte Sparks or Merle Lamb for Pulliam. Some weeks
she would work 5 days, but Sparks or Lamb would work
the sixth. This substitution occurred 4 or 5 weeks, or "pretty
often." Pulliam also testified that from July to November,
"somewhere around in there," she noticed a drop in her
overtime.
A study of Pulliam's testimony relative to her hours of
work, as well as that of other instructors, reveals that it is
entitled to little weight being too general and vague. For
example, as to her claim that, in July 1977, she worked only
4 days in the rotoconer department and instructors Sparks
or Lamb were substituted for her, Respondent's records in-
dicate that Pulliam worked every Friday in July, except for
the week the entire plant was closed; that Sparks did not
work in the rotoconer department except for 3 hours on a
Tuesday; and that while amb did work 8 hours on Satur-
day. July 16, and 4 hours on Friday. July 22. Pulliam
worked 8 hours on both dates. Thus, her testimony was
clearly mistaken as regards July.
Pulliam could have been mistaken about the timeframe
and perhaps meant August. instead of July. Thus, the
Union adverts in its brief to her layoff on Friday, August 5.
while Lamb and Sparks were assertedly given packing work
and Joyce Humphreys was assigned program development.
Respondent's records reveal, however, that Pulliam was on
training that week while Lamb was assigned to packing for
the entire week. Sparks worked a variety of jobs, only 16
hours of which were in training. Humphreys was on pro-
gram development all week. In light of these facts, it is
inaccurate to state that those individuals were given work
to assure them a full week while Pulliam was not. The situ-
ation was similar for the week of' August 21 when Pulliam
did not work on Friday.
As to overtime, the Union adverts to records that
whereas Pulliam worked 346 hours of overtime in 1976. and
113 in the first half' of 1977. she worked only 9.5 hours of'
overtime in the last two quarters of 1977. a period of time
during which Lamb had 252.5 hours of overtime and
Sparks 156. Such a disparity in overtime immediately
catches the eye, but it does not mean that Pulliam was
discriminated against. For one thing, both Lamb and
Sparks had substantially more overtime than Pulliam in
1976: for another, both suffered a substantial decline in
1977. And. while Pulliam had only 9.5 hours of overtime in
the third and fourth quarters of 1977. Eileen Stephens, a
comparable instructor, had only 8, and Joyce Humphreys
had only 36.
In my judgment, the foregoing demonstrates that the raw
data assembled by the Union from Respondent's records is
insufficient to support a finding of discrimination. he
weakness in the data is that it does not take into account
the circumstances that may account for any disparity be-
tween Pulliam and Sparks. Lamb or Stephens. One such
circumstance is the manner by which an instructor obtains
work.
An instructor works the same hours as the trainee to
which she is assigned. If the job on which the trainee is
working is scheduled for less than 40 hours. the instructor
must supplement training hours by production hours. Ac-
cording to Pulliam, Jesse Wall, training director. "usually
would see that we'd get work because we work under him.
. ." Wall corroborated her testimony, as far as it went. He
added, however, that the instructor had to let him know of
her need or desires (although apparently he knew of in-
structors' needs on occasions without being told by the in-
1168
J. P. STEVENS & COMPANY. INC.
structors). Moreover, according to Wall, in addition to his
attempts to get additional work for instructors. the instruc-
tors themselves would go to department heads seeking
work. Pulliam did not contradict this testimony. In fact. she
testified she thought she had gone to production supervisors
in the past, but she was not certain. From this, it can he
seen that the amount of work obtained by an instructor.
regular or overtime, was partly dependent on the initiative
of the instructor in seeking additional work. Pulliam's testi-
mony about going to department heads indicates that she
rarely did so, and while she emphasized Wall's role in oh-
taining work for her, she did not indicate the frequency of
her approaches to him for assistance in getting more work.
Although claiming discrimination as far back as December
1976, she testified to going to Wall only in December 1976.
and twice in August 1977. And, according to Pulliam's own
testimony, when she complained in August, Wall tried to
get her work, hut was unsuccessful.
In addition to the foregoing, Wall testified, without con-
tradiction, that there had been many times (albeit not fixed
as to dates) when he had offered Pulliam overtime work, or
work to fill out a week, and she had refused. One way of
acquiring overtime is for an employee to work extra shifts.
From January 2, 1977, to March 26. 1978. Sparks worked
21 double shifts, 10 one and one-half shifts, and 10 whole
plus partial shifts for a total of 230 extra hours, as com-
pared to Pulliam who worked only I double shift and 3
whole plus partial shifts for a total of only 20 extra hours.
Stephens did not work any extra shifts. I am persuaded that
the explanation for the disparity lies in the greater willing-
ness of Sparks to work extra shifts.
In my judgment, on the basis of the foregoing, the allega-
tion of discrimination against Pulliam in the assignment of
work cannot be said to be supported by a preponderance of
the evidence. One additional fact could be adverted to
which militates further against a finding of discrimination.
According to the uncontradicted testimony of Wall. in De-
cember 1977, Pulliam's son was in an accident and Pulliam
needed to be with him in the daytime. She asked Wall if he
could find something for her on the third shift. Wall did so.
Two or 3 months later, Pulliam approached Wall and told
him she was ready to return to the first shift. Wall made
arrangements to effect her return. As far as the record indi-
cates, Respondent was under no obligation to accord Pul-
liam such treatment. That it did so argues against a finding
that Respondent discriminated against her in the assign-
ment of work. I find that the General Counsel has failed to
establish discrimination by a preponderance of the evi-
dence.
B. The Alleged Interference, Restraint, and Coercion
I. The speech
The complaint in Case 10-CA-12611 alleges that a
speech read to the employees by Plant Manager William
Wall on or about September 22. 1976, violated Section
8(a)(1) of the Act. Respondent admitted that Wall read a
speech. but denied that anything contained therein was vio-
lative of Section 8(a)(l) of the Act.
This was the speech:
I.ADIIS ANt) (iNil I MEN:
I have asked that you all come together here so that
I can discuss with you a matter of serious importance.
In order that I may be entirely clear in what I sa to
you. and in order that there may he no doubt or mis-
understanding in what I do say. I am going to refer to
some notes which I have here before me.
As you are aware, the Amalgamated Clothing and
Textile Workers Union is now putting on a campaign
to try to make union mehers out of each of ou.
A good many questions are being asked in regard to
this campaign. We believe that ou are all entitled to
know what the situation is, and what our company' s
position is. and what may be expected in regard to the
entire matter.
This union campaign is a subject of concern to our
company.
It should also he a matter of concern to each and
every one of you for it is important to your future and
to the future of your family. You should make your
decision in the matter on what is best for you and your
family-now and in the future.
From long experience, we are deeply convinced that
a direct working relationship between a company and
its employees serves the best interest of both. and that
a union in the long run undermines that relationship
and builds a barrier between the company and the em-
ployees. and sooner or later the union brings friction
and disagreement and often serious trouble to all con-
cerned.
It is our sincere belief that if this union were to get in
here, it would not work out to the best interest of es:-
erybody concerned with this plant. Because of the
many things we know about the Union. and the wa, it
operates. we intend to oppose this effort to make unio,,
dues pavers out of each of you.
The decision in the final analysis is yours.
I encourage you to examine all of the facts and then
vote in the manner that best serves you and your falm-
ily.
There are several important facts that I want to dis-
cuss today. Those who are pushing the union often try
to mislead employees about the Union and what it can
do. This factor has already started in plant. One of the
things these union supporters tell the employees is that
when a union comes into the plant. then automatically
wages go up and new fringe benefits are added, and
whatever the union wants will be changed. You should
ask yourself this question-if the Union came in here.
is that the way things would happen? Why not?
I want to give you a clear understanding of what the
law says about this question. A union coming into this
plant would not automatically mean a raise in pay
whatsoever. nor any new or additional benefits for ans
one. Nor could the Union force this Company to do
anything whatever that the Company did not wish to
do, or does not consider reasonable or practical. The
Union could try to pressure the Company by pulling
you out on a strike. But our Company has no intention
of giving in to any sort of strike pressure now or at any
time.
I 169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In saying this, I do not intend to seem harsh or arbi-
trary I simply think that it is important that everyone
should understand the facts about this matter, while
there is et time -and before anybody goes down the
wrong road believing that a union can accomplish
things which in truth it cannot accomplish.
Everyone knows that where unions are is where
strikes generally take place, everybody knows that
strikes mean trouble and tension and strain and
strife-which often ends up in serious violence. Vio-
lence is not the only danger connected with a union
strike.
While the union officials, who call you out on strike.
keep drawing their salaries during the strike, striking
employees stand around for days, weeks, and some-
times months earning nothing. They draw no unem-
ployment compensation. Home, car, and grocery pay-
ments are still expected and the only money coming in
is the few dollars a week that the union may pay you, i/
you walk the picket line. Even more important, those
who follow the Union out on strike run the risk of
losing their jobs. For it is the right of a Company to
replace those who leave their jobs and go out on a
strike over wages or benefits. And those who are re-
placed have no automatic right to come back and get
their jobs when the strike is ended. These things are set
out in our federal laws. You should not overlook them.
As you make up your mind about this matter, there
is another thing to which you should give careful
thought. Our company has approximately 85 plants
and more than 40,000 employees. We have less than
600 employees here at Milledgeville. Yet, when Stevens
raises wages, we get the same raised wages and in-
creased benefits right along with all the Stevens plants.
And right along with the largest of those plants.
It is only recently that you, along with all the com-
pany employees, received a pay increase. In addition,
by working together, we have been able to recently
institute a new guaranteed pension plan for you. The
Company has announced that your insurance coverage
and benefits are being substantially increased and im-
proved. About three weeks ago, it was announced that
Easter Monday is a new paid holiday.
If you will consider for a moment, you will realize
that year after year this company is steadily raising and
improving your wages and benefits. I can assure you
that we intend to continue this policy without your
having to pay union dues to any outsider. No union
was necessary for you to receive these increases, and
no union will be necessary for you to receive increases
in the future. If anyone tells you differently, he is sim-
ply trying to mislead you. The question you must ask
is, why should they try to mislead me? I think the an-
swer is simple. They seek to provide the Union with
dues money. If the union dues are $6.00 per month,
that would be over $43,000 per year that this Union
would get from Milledgeville employees each year.
The Unions have been attempting to pressure Stevens
in every way possible for many years. There is not a
thing they can do that they haven't already tried be-
fore. They have never forced this company to give to
employees in any plant any wage increase or benefits
of any kind that they did not give in its other plants.
Upon facts such as these, is it really easy for you to
believe that by starting a union down here at Milledge-
ville, the Company would then give in to the Union
and put into effect here higher wages and benefits than
at other plants? Those who believe this are being mis-
led by union pushers. The Union could start trouble all
right, but who do you think stands to gain from this
trouble? If the Union got in here and became your
exclusive representative, and called you out on strike,
can you picture this plant with less than 600 employees
and probably only 100 or so of' those going out on
strike for the Union, can you picture this Union win-
ning such a strike against Stevens and its more than
40.000 non-union employees?
In this whole matter. please consider what are your
best interests-not what some union organizer wants
you to do. You need to realize that when a union
comes in, it can start a strike whether a majority of the
employees want to strike or not. And think about
this-when the strike gets going, who is it that suffers
the most from it? Not the union organizer. These orga-
nizers are off somewhere else taking it easy on union
dues collected out of your hard-earned money. Nor is it
the Company with its 85 plants that would mainly suf-
fer from this strike. It would be ou. You would be the
one asked by the Union to bear the brunt and suffer
the most by the strike. That is the truth of' the matter
and it is an undeniable fact. And all of you here at
Milledgeville should realize and understand this before
it is too late. One other fact that is important. There
are plants where people have had a union, including
this same union, but now do not have any jobs at all.
Many such plants are now closed down and out of
business. Did the Union protect the employees who
worked under the union contract in all of these plants'?
The plain simple truth is that it certainly did not. Eco-
nomic and competitive conditions control such matters
and the Union cannot control them no matter what the
union organizers may tell you.
Did you know that at this very moment while some
of the organizers are trying to get you to line up with
this Union, that officials of this same Union are plan-
ning to shut down all of your jobs? That is a fact. And
the organizers cannot truthfully deny it. They call this
a national boycott. What that means is that the Union
will use every means that it can, all over the country, to
kill off the sales of every Stevens product and when
they kill the sale of the products you make, their kill
your job. That is exactly what they intend for this plant
and for you. They have publicly declared this and ad-
vertised it everywhere. Still they have the gall to ask
you to join up with them and help them to accomplish
your own mass destruction. I believe that all we need
to do is give you the facts and you will begin to look
after your own interests. Until now, you have not had
the facts, and I am now laying the facts before you.
Now, on the subject of these cards which the Union
is trying to get you to sign. I understand the union
organizer, and some of your fellow employees as well.
are saying that if you sign a card for the Union that it
will be kept confidential, and no one except the Union
1170
J. P. STEVENS & COMPANY. INC.
or the Labor Board would ever see your signature on
the union card. You are entitled to know that this may
turn out to be entirely untrue. Nowadays the Union
sometimes tries to get into a plant on the basis of the
union cards without employees having voted on the
matter at all. Where this happens the signed union
cards are taken to a public hearing at th, courthouse
and the cards are laid on the table and people are put
on the witness stand and questioned as to whether the
cards do bear their true signatures and as to the cir-
cumstances of their signing the card. In such situ-
ations. as you can see, the signed union cards are any-
thing but confidential. They are made public just as
everything in a courtroom proceeding is made public.
It is for you to decide whether this gives you any con-
cern or not. You should realize that when the Union
assures you that the cards will always remain private
and confidential. it may be that you are being seriously
misled.
Another thing which I am sure many of you do not
realize is this: We have recently been receiving letters
from the Union listing some of the names of the em-
ployees who are signed up on what they call "in-plant
organizing committees." We have not asked the Union
to send us these names, and the Union is not required
by law to do so, but nevertheless. it is sending us such
names. You probably do not know, that some of these
employees in this plant who are getting other people to
sign these letters are not allowing their own names to
appear on the lists. They are getting other people's
names on the list. They are not putting their own
names there. That is the example of the kind of leader-
ship you get from those who push for a union. We
should like to make it clear to you that those who
might join or sign up with the union will never get any
advantage or preferred treatment of any sort from
those who did not join up or belong to the Union. We
would also like to make it clear it is not necessary, and
it is not ever going to be necessary, for anyone to be-
long to the Amalgamated Clothing and Textile Work-
ers Union or any other union in order to work for this
Company. Another thing that you should realize is
this: if and when a union comes in there are rights you
now have which would then be taken away from you
and given to the Union. If a union gets in this plant,
then it becomes the exclusive spokesman of all employ-
ees working in this plant whether it suits their wishes
or not. It can and will make decisions for you whether
you like it or not. Therefore, you need to look around
and you consider if this Union were to come in this
plant, who would get to be the shop steward and the
committeemen to handle the affairs of everybody else?
Are you ready to turn over your business to those indi-
viduals and place your future in their hands? That is
what you would do if this Union were to get in this
plant.
It is your own interests that you should look after in
this matter. It is your own interests that are at stake.
Whatever our problems may be, the Union is not the
road towards making things better. It could be the
road toward making them far worse. I make no claim
that everything here is perfect as it is. I know that
matters can be corrected and improved and I can as-
sure you it is our sincere desire and intention to accom-
plish this improvement. I know we can work things out
by pulling together, and I also know that they can nev-
er be worked out by our pulling apart. Towards the
betterment and improvement of this plant, we promise
you our cooperation and support.
In closing I want to encourage and ask that you
should consider all the facts. Evaluate them carefully
and then make your decision in the best interest of 'ou
and your Jamils.
Thank you for the attention you have given me, and
we will now adjourn this meeting.
Respondent contends that the speech is a permissible ex-
pression of management iews protected by Section 8(c) of
the Act, whereas the General Counsel and the Union argue
that it went beyond mere expressions of views and con-
tained unlawful threats. Thus. the General Counsel and the
Union argue that the speech was unlawful in that it warned
employees of the futility of selecting the Union to represent
them. The argument is based on Wall's remarks that the
Union could not force the Company to do anything it did
not wish to do, or did not consider reasonable or practical.
and adverting to the 85 plants operated by the Company.
the total number of employees (40.000) as compared to the
600 in Milledgeville, and to the company policy when rais-
ing wages of giving the same increases to all plants. In addi-
tion, Wall stated:
The unions have been attempting to pressure Ste-
vens in every way possible for many years.
There is not a thing that they can do that they
haven't already tried before. They have never forced
this company to give to employees in any plant any
wage increase or benefits of any kind that they did not
give in its other plants.
Upon facts such as these, is it really easy for you to
believe that by starting a union down here at Milledge-
ville. the Company would then give in to the Union
and put into effect here higher wages and benefits than
at other plants?
In my judgment, the message of the futility of union rep-
resentation contained in the foregoing excerpts from Wall's
speech could hardly have been expressed more clearly. On
the one hand, Wall pointed to the uniformity of company
raises and benefits, and on the other he pointed to the insig-
nificance of the Milledgeville plant in the Company's large
system and boasted that the unions "have never forced this
company to give to employees in any plant any wage in-
crease or benefits of any kind that they did not give in its
other plants." In the face of such remarks, employees could
not help but conclude that selecting the Union to represent
them was a waste of time. Such a message goes beyond an
expression of views and the remarks are found to have been
violative of Section 8(a)(I) of the Act.` Cf. Monigomen'
Ward & Co., Inc., 222 NLRB 965 (1976).
2 The Union argues that, in telling employees that unions had never fiorced
the Company to give employees any wage increases or benefits that they did
not give in other plants and stressing that no union was necessary for them to
receive increases in the future, Respondent made unlawful promises. I do not
agree. I deem such statements as part and parcel of the message of futihty
( 'ntinuedJ
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The statements of Wall just described can also be charac-
terized as an anticipatory refusal to bargain and Respon-
dent has addressed itself to the statements as so character-
ized and, relying on American Greetings Corporation, 146
NLRB 1440 (1964), it asserts that "Only those statements
which clearly convey the intent of the employer not to bar-
gain in good faith have been held violative of Section
8(a)(1) of the Act." The assertion avails Respondent little.
because Wall's statements, I find, clearly conveyed an in-
tent not to bargain in good faith.
In his speech. Wall correlated his statements about the
futility of selecting the Union as bargaining representative
with reminders to the employees that the Union's only re-
course was to strike. Thus, after telling the employees that
the Union could not force the Company to do anything
whatever that the Company did not wish to do, Wall added
that the Union could pull a strike, and that the Company
would not give in to strike pressure. After telling employees
that the Company would not give in to the Union and
would not put into effect at Milledgeville wages and bene-
fits higher than at other plants, Wall reverted to the strike
theme with "The Union could start trouble all right, but
who do you think stands to gain from this trouble," and he
pointed out the futility of a strike and the adverse effects of
a strike on employees, including that strikes mean trouble.
tension, and strife and often end up in serious violence.
The Union argues, in brief, that the prediction of strikes
in the context of expressions of the futility of union repre-
sentation and an anticipatory refusal to bargain is itself
8(a)( 1) conduct. I agree. Employees cannot but be re-
strained from exercising a free choice when they are told on
the one hand that their employer will not bargain in good
faith, and on the other that the Union can strike. It is true
that Wall never stated, in haec verba, that the Union would
strike or that a strike was inevitable, but it can reasonably
be said that it would be "the necessary tendency of the
[employees], because of' that relationship, to pick up in-
tended implications of the [employer] that might be more
readily dismissed by a more disinterested ear."'
On the subject of strikes, apart from predicting, in effect,
the inevitability of a strike, and pointing out the possibility
of violence and loss of wages, Wall adverted to the employ-
ees' job tenure, stating, "Even more important, those who
follow the Union out on strike run the risk of losing their
jobs. For it is the right of a company to replace those who
leave their jobs and go out on strike over wages and bene-
fits. And those who are replaced have no automatic right to
come back and get their jobs when the strike is ended."
Given Respondent's intent not to bargain in good faith as
demonstrated by the discussion above, any strike of its em-
ployees would of necessity be an unfair labor practice strike
and, contrary to Wall's statement, striking employees could
not be replaced. In the circumstances, the threat of replace-
ment was unlawful. Tommy's Spanish Foods, 187 NLRB
235 (1970). enfd. 463 F.2d 116 (9th Cir. 1972).
rather than an independent unlawful promise. The General Counsel con-
tends that Wall's remarks that there are matters that can be corrected and
improved and his assurance of Respondent's intention to accomplish im-
provement constituted a promise of benefit impliedly conditioned upon rec-
ognition of the Union and that they were therefore unlawful I do not agree.
N.I.RB. v. Gissel Packing o., Inc., 395 U.S. 575. 617 (1969).
In his speech, Wall adverted to the Union's solicitation of
signatures on union authorization cards and the representa-
tions of confidentiality. He then pointed out that the cloak
of confidentiality could be lifted in the event of a refusal-to-
bargain proceeding based on a card majority and suggested,
"It is for you to decide whether this gives you any concern
or not."
The General Counsel contends that in view of Respon-
dent's history of unlawful conduct towards known union
adherents such remarks tend to coerce employees. In sup-
port of this contention, he cites J. P. Stevens & Co., Inc., 181
NLRB 666 (1970). Respondent asserts that the remarks
were truthful, were made in a context free of unlawful dis-
charges, and were in response to representations of confi-
dentiality. In support of its position, it relies on the denial
of enforcement in J. P. Stevens.4 supra, and on other appel-
late court decisions.
I am, of course, bound by Board Decision and, in any
event, I cannot help but wonder whether the court in the
cited Stevens case would adhere to that holding today in
light of Respondent's unfair labor practice conduct since
1971. 1 am persuaded that the reference to the public disclo-
sure of card signers and the implication that this might be a
matter of concern were remarks which would tend to coerce
employees from signing cards, not in the exercise of a rea-
soned choice, but for fear of the consequences of' public
disclosure at the hands of Respondent. In my judgment. by
the remarks here in question Respondent was attempting to
trade on its reputation as a labor law violator to interfere
again with its employees' exercise of free choice. It is no
defense to assert the truth of' the remarks. Remarks uttered
or written during campaigns may or may not be coercive,
depending on the context in which they are uttered. In this
case, in addition to the fact of Respondent's reputation.
there is the fact that the remarks here in issue were part of'
a speech containing other unlawful statements. In the cir-
cumstances, the remarks relative to public disclosure of the
card signers can only be viewed as coercive. I so find.
2. The notice
The complaint in Case 10-CA-13247 alleges that Re-
spondent threatened employees with reprisals if they joined
the Union or engaged in activities on its behalf. The allega-
tion is predicated on the fact that on May 25. 1977, Re-
spondent posted a notice on its bulletin boards with the
heading: BLUE CARD FACTS. Below this heading was a
copy of a union membership card (which is blue), below
which was the following:
Quite often employees sign union cards similar to
the one copied above, simply to get the union orga-
nizer "off his back."
It requires a strong willed and loyal employee to
withstand the repeated harassing contact made by
union organizer or pusher. We are grateful that we do
have these strong willed and loyal employees.
The union card can he used a.s a legall binding docu-
ment. You should not sign it unless it is thoroughly
4 N.L R.B. v. J. P Stevens Co.. Inc.. 449 F.2d 595 14th Cir. 1971).
1172
J. P. STEVENS & COMPANY. I[NC.
understood and you are willing to abide by its conse-
quences.
Signing a blue card can have serious consequences
The General Counsel and the Union contend that the
statements equating loyalty with the refusal to sign a union
card and the admonition of serious consequences, in the
context of Respondent's notoriety as a violator of the coun-
try's labor laws, cannot but have tended to coerce employ-
ees in the exercise of Section 7 rights. The Board has held
that statements equating engaging in union activity (and
obviously signing a union card is union activity) with em-
ployee disloyalty tend to interfere with, restrain, or coerce
employees in the exercise of Section 7 rights in violation of
Section 8(a)(I) of the Act.' The Board has also held, with
court approval, that statements of "serious harm." while
not per se coercive, may be coercive in a context of em-
ployer unfair labor practices. We are faced here again with
Respondent's history of unfair labor practices, and with the
unlawful remarks in Wall's speech, as the framework within
which to evaluate its raising the specter of serious conse-
quences. Respondent defends its conduct by adverting to
vocabulary definitions of consequences versus harm. The
definitions do nothing to help its position. Given Respon-
dent's history of unfair labor practice conduct. Respon-
dent's employees could reasonably understand that "a logi-
cal result or conclusion; inference . . ."' of signing a card
would be discriminatory treatment. I find that the reminder
to employees of "serious consequences" was coercive and
unlawful.
III. TIIE EFFCT OF TIHE UNFAIR LABOR PRA(TIES UtP()N
(OMMFR(E
The activities of Respondent set forth above, occurring in
connection with its operations described above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE RItMEDY
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)( ) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take appropriate and affirmative action
designed to effectuate the policies of the Act. In this con-
nection, both the General Counsel and the Union request
that Respondent be required to post the notices to employ-
ees herein provided for in all of its plants. In addition, the
Union requests that a copy of the notice be mailed to the
home of each employee and that Respondent be directed to
convene all of its employees during working time for the
reading of the notice by the highest managerial official in
the plant or to provide facilities to permit a Board agent to
read the notice. The Union also requests that it be granted
Oscar Enterprises, Inc.. OMCO, Inc, Halvin Products (, 214 NLRB
823 (1974).
6 Websler's NeC orld Dlctionay of the A,4erican Language. Second (CoI-
lege Edition (1974) at p. 302. "consequence." definition (2).
access to the Company's bulletin boards and to the Compa-
ny's premises to attend meetings convened by Respondent
with regard to matters of union representation and to be
permitted at such time to address the employees on an
equal time basis. The Union requests that Respondent be
directed to furnish it a list of all employees including their
names and address. The Union further requests that it be
given access for reasonable periods of time to Respondent's
canteen, rest, and other nonworking areas, including park-
ing lots. In addition to all the foregoing, the Union requests
that Respondent be directed to reimburse both it and the
Board the costs of all litigation expenses. Finall' the Union
requires the issuance of a bargaining order. In support of
these requests. the Union adverts to the mans Board and
court decisions in which Respondent has been found to
have violated the law. In particular, it adverts to the state-
ment of the Court of Appeals for the Second Circuit in
N.I. R.B. v. J. P. Stevens & Co.. I,(.. 563 F.2d 8. 13. 22
(1977), wherein the court noted that Respondent had
earned a "reputation as the 'most notorious recidivist' in the
field of labor law" and had created the impression that "the
Company has engaged in a 'program of experimentation
with disobedience of the law.' "
Respondent opposes the imposition of' such special rem-
edies and in support of its opposition has moved to reopen
testimony or, in the alternative. to submit sworn affidavits.
Such testimony, or affidavits, it is averred. would establish
that Respondent has already undertaken numerous steps to
assure compliance with the provisions of the Act, including
some of the special remedies requested herein by the Union.
e.g., posting of very broadly worded notice to employees at
nearly all of Respondent's plants. and mailing of executed
copies of said notices to each employee at such plants.
The General Counsel and the Union oppose the motion
to reopen for a number of reasons. In my judgment, it is
sufficient answer to the motion that. whatever steps Re-
spondent has undertaken. they do not have the sanctions
which underlie a Board order. nor have the employees been
told expressly that what their employer has done is in fact
unlawful. Accordingly, the motion to reopen the record is
denied.
The remedies of mailing of the notice to all employees at
all of Respondent's plants, reading of the notice to them.
union access to bulletin board and in-plant access for its
representatives at the Milledgeville plant. and lists of Mil-
ledgeville plant employees names and addresses are all rem-
edies deemed approximate before,' and I deem them appro-
priate here.
With reference to its request for litigation expenses, the
Union relies, in part, on the observation of the Board in
Heck's Inc., 215 NLRB 765. 768 (1974), that "we do not
imply that the need for additional or expanded remedies
may not be established by the degree of repetition of mis-
conduct" and the statment of the Supreme Court in Ihal .
Cole, 412 U.S. I. 5 (1973), "thus, it is unquestioned that a
federal court ma, award counsel fees to a successful party
when his opponent has acted 'in bad faith, vexatiouslx.
wantonly, or for oppressive reasons.'" It also adverts to
Bell v. School Board of Powhatan ( ounw. I 'irginia. 321 F.2d
494. 500 (4th Cir. 1963). where fees were awarded because
'J P Si.tnc2 & Co, ,1 .240 NLRB 33 1979)
I 1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the "long continued pattern of evasion and obstruction"
by the defendants and to Rolax v. Atlantic Coast Line R.
Co., 186 F.2d 473, 481 (4th Cir. 1951) where the court said
"the justification [for an award of counsel fees] here is that
plantiff of small means have been subjected to discrimina-
tory and oppressive conduct by a powerful labor organiza-
tion." In this connection, it notes that Administrative Law
Judge Ries in a decision issued on December 21, 1977, rely-
ing on such authorities, granted the requested remedy, as
did Administrative Law Judge Harmatz in another case (J.
P. Stevens & Co., Inc., 244 NLRB No. 82 (1979)). On De-
cember 12, 1978, the Board adopted Administrative Law
Judge Ries' recommendation. J. P. Stevens & Co., Inc., 239
NLRB 738.
It has been Board policy to refrain from assessing litiga-
tion expenses against a respondent, notwithstanding that
the respondent may be found to have engaged in "clearly
aggravated and pervasive misconduct" or in the "flagrant
repetition of conduct previously found unlawful," where
the defenses raised by the respondent are "debatable"
rather than frivolous.' At the same time, the Board has left
the policy open to revision where the need may be estab-
lished by the degree of repetition of misconduct. In adopt-
ing Judge Ries' recommendations without comment, the
Board evidently agreed with him not only that there was a
repetition of misconduct, but also that the defenses raised
by Respondent were not "debatable."
Even a cursory comparison of the conduct of Respondent
in the case in 239 NLRB 738 and in this case reveals that
the issues involved are in no way comparable. The principal
issues presented in this case were two instances of alleged
discrimination and two instances of alleged interference, re-
straint, and coercion. As to the alleged discrimination, the
defenses were more than "debatable"; in my judgment,
they had merit. As to the alleged interference, restraint, and
coercion, it appears to me that Respondent is still experi-
menting with disobedience of the law when it undertakes,
for example, to engage in the semantics of "serious conse-
quences." Nevertheless, to award litigation expenses where
the Respondent prevailed on substantial issues appears to
me to fly in the face of the Board's rationale in Heck 's Inc..
supra. Accordingly, I shall not recommend such a remedy.
As to the Union's request for a bargaining order, I am
not persuaded that the unfair labor practices herein found
are of such a nature that their coercive effects cannot be
eliminated by the remedies, traditional and extraordinary,
which are herein recommended.
CONCLUSIONS OF LAW
I. J. P. Stevens & Company, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By implying that it would be futile for its employees to
select the Union as their collective-bargaining representa-
tive and that it would not bargain in good faith, in predict-
ing a strike and threatening to replace striking employees:
Hecks Inc, supra at 768.
and by equating the signing of union cards with disloyalty
to the Company and warning them that signing union cards
can have "serious consequences" and that the cards would
not be kept confidential, Respondent engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(l) and Section 2(6) and (7) of the Act.
4. The General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent discharged
Anna Mae Jones and discriminated against Molly Pulliam
in the assignment of work because of' their activities on
behalf of the Union.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 9
The Respondent, J. P. Stevens & Company, Inc.. its offi-
cers, agents, successors, and assigns, shall, on a corpo-
ratewide basis:
I. Cease and desist from:
(a) Telling employees that it would be futile for them to
select the Amalgamated Clothing and Textile Workers
Union, AFL-CIO, as their collective-bargaining represent-
ative and indicating to them that it would not bargain in
good faith.
(b) Predicting a strike in the event the employees select
the Union to represent them and threatening to replace em-
ployees in such event.
(c) Conveying to employees the idea that employees who
sign union cards are disloyal to the Company and warning
them that signing union cards can have serious conse-
quences.
(d) Implying that employees might suffer reprisals by
telling them that their signing of union cards may not be
kept confidential.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Post in conspicuous places in each of Respondent's
plants, including all places where notices to employees are
customarily posted, for a period of 60 consecutive days.
copies of the attached notice marked "Appendix A."10 Cop-
ies of said notice, on forms provided by the Regional Direc-
tor for Region 10, shall be signed on behalf of Respondent
by its president and the chairman of the board of directors
and, in addition, by each of the other members of the board
of directors, and by the highest managerial officer of the
plant in which the notice is posted. Reasonable steps shall
9 In the event no exceptions are filed as provided b Sec. 102.46 of the
Rules and Regulations of the National ahbor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted b the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
'0 In the event that this Order is enforced b a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted hby Order of
the National L.abr Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
1174
J. P. STEVENS & COMPANY. INC.
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Reproduce and mail to the home of each of its em-
ployees at all of its plants a facsimile of the aforesaid signed
notice, together with the letter appended hereto as "Appen-
dix B" [omitted from publication.] Said letter shall be re-
produced on the Company's regular business stationery and
signed by the highest official of the recipient's plant. Also
include in appropriate company publications. such as em-
ployee newsletters, a copy of the notice, together with Ap-
pendix B. Respondent shall provide the Regional Director
for Region 10 with proof of such mailing and publication.
(c) 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 employees 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 per-
mit a Board agent to read the notice to said employees. In
the event Respondent chooses to have the notice read by
the official, the Board shall be afforded a reasonable oppor-
tunity to provide for the attendance of a Board agent.
id) Upon request of the Union made within 2 yearsfrom
the date hereof, immediately grant the Union and its repre-
sentatives reasonable access to the plant bulletin boards in
all places where notices to employees are customarily
posted. at each of Respondent's plants. for a period of I
year from the date of request.
(e) In the event that during the period of 2 years follow-
ing entry of this Order, any supervisor or agent or Respon-
dent convenes any group of employees at any of Respon-
dent's plants and addressing them on a question of union
representation, give the Union reasonable notice thereof
and afford two union representatives a reasonable opportu-
nity to be present at such speech, and upon request of said
representatives, permit one of them to address the employ-
ees at that the same amount of time as Respondent's ad-
dress.
(f) If, within the next 2 years. the Board schedules an
election in which the Union participates at any of Respon-
dent's plants, then, upon request by the Union, afford at
least two union representatives reasonable access to each of
Respondent'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 election.
(g) Upon request of the Union. immediately furnish it
with lists of the names, addresses, and classifications of all
of Respondent's employees at each of its plants as of the
latest available payroll date, and furnish a corrected, cur-
rent list to the Union at the end of each 6 months thereafter
during the 2-year period referred to above.
(h) For the 2-year period, upon request, without delay.
permit a reasonable number of union representatives access
for reasonable periods 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 during
changes of shift, breaks. mealtines, or other nonv, ork peri-
ods. Respondent shall formulate rules on this subject in the
same manner as provided in J. P. Stevens & Co., Inc.. 239
NLRB 738.
(i) Notify the Regional Director for Region 10. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NoiI( i To EMPi OYttL-S
Posol) HY ORI).ER ()F tE
NAIIONAl LABOR R AIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
give evidence, the National Labor Relations Board has
again found that we violated the National Labor Relations
Act, as amended. this time at our Milledgeville, Georgia.
plant.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To act together for purposes of collective bargain-
ing or other mutual aid or protection
To refrain from any or all these things.
We intend to abide b your rights to engage in such ac-
tivities.
Wt- wll.l NOI tell you. or represent to you, that it
will do you no good to select the Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO, to repre-
sent you.
WE WIi.L NOT tell ou that the Union cannot obtain
for you better benefits or higher wages than are paid at
our other plants or that we will not agree to better
benefits or higher wages through collective bargaining.
Wi Wll.i. NOT tell you that there will be a strike in
the event you select the Union to represent you and w
WUti. NI threaten to replace employees in such event.
WE WI.L. NOI suggest to you that we regard employ-
ees who sign union cards as disloyal to the Company.
WF WIL. NOT warn you that there can be serious
consequences if you sign union cards.
WEV WILL NOT suggest that we will take reprisals
against you by telling you that your signing a union
card may not be kept confidential.
Wt WliT. NOT in an' other manner interfere with.
restrain, or coerce employees in the exercise of their
rights under the National Labor Relations Act. as
amended.
J. P. SrFVENs & C(.. 1N(!.
BY PRISII)iN I
B) CHAIRMAN ()1- i11i BOARI) O() DIR(. I()RS
BN MlEBE R 01 I II BOARD () DIRI( I()RS
By 11f MBER
B t'1 \ I M A,,x\(itR
1 75