Litton Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1977

227 N.L.R.B. 1426 (N.L.R.B. 1977)

1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sturgis-Newport Business Forms , Inc., a Division of
Litton Business Systems, Inc., a Subsidiary of
Litton Industries , Inc. and International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO. Cases 26-CA-5655 and 26-CA-5736
January 24, 1977
DECISION AND ORDER
On June 25, 1976, Administrative Law Judge Paul
E. Well issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and the Respon-
dent filed exceptions and supporting briefs and the
Respondent filed an answering brief.
The Board has considered the record I and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent variously
violated Section 8(a)(1) of the Act by certain conduct
of its supervisors as fully described in the attached
Decision. We also agree with his findings that the
8(a)(3) and (5) allegations are not sufficiently sup-
ported by the evidence.
However, we further find that the statement of
Supervisor Brewster to employee Edward Hohn,
made in early June 1975, that if the Union came in
"The plant would probably close its doors," is clearly
coercive and violative of Section 8(a)(1). The Admin-
istrative Law Judge credited Hohn's testimony and
found that this statement was made, but failed to
make a specific finding, presumably through inadver-
tence, that Respondent thereby violated the Act.2
In addition, we find merit in the General Counsel's
exceptions to the Administrative Law Judge's failure
to find that certain other conduct was unlawful. Thus,
we disagree with the Administrative Law Judge's
conclusion that Brewster's statements to employee
Claude Hinton during a conversation sometime in
June were not threatening or coercive. The Adminis-
trative Law Judge credited Hinton's testimony that
he asked Brewster about the presence of the "strange
man in the plant" and that Brewster said:
i Certain of Respondent 's exhibits were missing from the exhibit file
supplied by the official reporter Upon examination of the testimony
regarding these exhibits , it is clear that they are cumulative evidence
pertaining to matters fully covered by other testimony The presence of these
exhibits would not change the findings herein
2 Although this statement refers to possible plant closing , it is a statement
to a single employee by a minor supervisor Similarly, Dangler's comment to
Simms, in response to Simm's question , that it was his "personal feeling" that
the plant would be closed if the union came in, while a threat , was indirect,
was not volunteered , and was made by a minor supervisor to a single
employee Hence , these statements are not, in our view, sufficient to warrant
a Gissel bargaining order N L R B v Gissel Packing Co, Inc, 395 U S 575
(1969) See, e g, Sinclair & Rush, Inc, 185 NLRB 25, 30 (1970)
227 NLRB No. 199
[H ]e was some kind of labor relations man. He
said something about him seeing the Company
lawyer and he had come down here because he
had some complaints about problems in the plant.
I told him that we did have some problems in the
plant and the employees was [sic] unsatisfied as to
how the Company was treating them. He men-
tioned that he hoped I made the right decision and
that I do what is best for my family. He also
continued to say that the last dealings he had with
a union was with some hosiery mill and he lost his
job over it.
Supervisor Brewster , on cross-examination, admit-
ted that he had told Hinton "about the hosiery mill
when it organized we had the election one day and
the plant shut down and never did open again." 3
In view of the circumstances , including the ongoing
organizational campaign and the entire context of the
discussion itself, we find that Brewster's statements to
Hinton amounted to a warning against supporting
the Union lest he lose his job. It was therefore
coercive and violative of Section 8(a)(1).
We also disagree with the Administrative Law
Judge's conclusion that Supervisor Dangler's state-
ment to employees Marolt and Castile during an
incident on the loading dock in late May or early
June did not constitute a violation of Section 8(a)(1).
As found by the Administrative Law Judge, both
Castile and Marolt were on the loading dock when
Dangler drove up and got out of his truck. As
Dangler came up the stairs, employee Castile stuck a
campaign card from the local sheriffs race in
Dangler's shirt pocket and asked Dangler if he was
going to vote or vote right. Dangler said, "Boys, I
hope you don't do anything to jeopardize the plant or
your jobs."
The Administrative Law Judge's finding was based
on his view that the conversation was related to the
sheriffs campaign and had nothing to do with the
employees' union activities. However, nothing in the
evidence indicates that Dangler knew the contents of
the card, or that his statement referred to the sheriff's
campaign, and his response referring to the jobs and
plant is totally illogical if the Administrative Law
Judge's interpretation were correct.
3 This statement does not amount to a threat of plant closure , contrary to
the interpretation placed upon it by our dissenting colleagues Cf Sinclair &
Rush, Inc, supra Russell Stover Candies, Inc, 221 NLRB 441 (1975), cited
and relied on by our dissenting colleagues as supporting a finding that mere
references to other plant closures constitute a threat of closing, is clearly
distinguishable on its facts For there the "references" were made by the
company's top management to pnor closings of other plants of the company
as well as of many other employers in numerous speeches and letters to all
employees in the unit . Here, in contrast, the statement was made by a minor
supervisor to one employee and referred to the supervisor 's own experience
at another company
STURGIS-NEWPORT BUSINESS FORMS 1427
In view of the circumstances, we find that Dangler's
statement constituted a threat and was violative of
Section 8(a)(1).
AMENDED CONCLUSIONS OF LAW
We substitute the following for paragraph 4 of the
Administrative Law Judge's Conclusions of Law:
"4. By coercively interrogating employees con-
cerning the union activity of themselves and other
employees, by threatening employees with loss of
their jobs and plant closure in the event of union
organization, by making coercive statements to
employees related to their union activity, and by
engaging in surveillance of a union organizational
meeting and following a union organizer by automo-
bile, Respondent has interfered with, coerced, and
restrained employees in the exercise of their rights
guaranteed in Section 7 of the Act in violation of
Section 8(a)(l) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Sturgis-Newport Business Forms, Inc., a Divi-
sion of Litton Business Systems, Inc., a Subsidiary of
Litton Industries, Inc., Corinth, Mississippi, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 1(d), and
reletter the original paragraph 1(d) as 1(e):
"(d) Making coercive statements to employees
related to their union activity."
2. Add the following as the last sentence of
paragraph 2(a):
"In addition, Respondent shall mail a copy of said
notice to each person who was employed at its
Corinth plant on May 29, 1975."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBERS FANNING and JENKINS, dissenting in part:
We fully agree with the violations found in this case
by our colleagues. We disagree only with their failure
to find a violation of Section 8(a)(5) and their failure
to issue a bargaining order to remedy the Respon-
dent's unfair labor practices.
In sum, against the background of a work force of
about 46 employees, we have found 12 violations of
Section 8(a)(1) of the Act. The Respondent was
responsible for six acts of interrogation, five threats of
discrimination, and one incident of surveillance.
Among the Respondent's threats were two that
warned of plant closure should the Union's orga-
nizing campaign be successful.4 In a work force of
this size, it is certain that these sorts of threats would
pass among and be discussed by all employees.5 We
would find that the Respondent's unfair labor prac-
tices were sufficiently extensive and pervasive to have
undermined support for the Union. In a situation in
which the Respondent has indeed closed its facility,
an order directing the Respondent to cease and desist
from threatening to close the plant can hardly serve
to protect employee rights. Accordingly, we would
issue a bargaining order as part of the remedy,
requiring the Respondent to bargain about the June
1975 layoff as well as the effects of the plant closure.
Additionally, we would provide that the Respondent
be ordered to prepare a preferential hiring list of all
employees employed at the Respondent's Corinth
plant as of May 29, 1975, in order that the employees
be given preference should the Respondent reopen a
facility in the Corinth area and in order that
employees be given opportunities for employment at
other plants owned by the Respondent. In our
judgment, this is the minimal remedy6 needed to
rectify the unfair labor practices committed by the
Respondent.
4 Thus, Supervisor Brewster informed employee Hohn that if the Union
came in "The plant would probably close its doors " Also, Foreman Dangler
told employee Simms that if the Union came in it was his "personal feeling
that the Company would just lock the doors "
Further, Supervisor Brewster's unlawful statements to employee Hinton
included remarks about another plant that closed after a union election. In a
context of an organizing campaign where numerous 8(a)(1) violations
occurred, the Board has found references to other plant closures to constitute
threats of plant closure See, e.g., Russell Stover Candies, Inc, 221 NLRB 441
(1975) However, even were we to agree with our colleagues that Brewster's
statements to Hinton did not include a direct threat of plant closure, the
seriousness of Brewster's threats nonetheless adds substantial justification
for the issuance of a bargaining order as part of the remedy
5 In General Stencils, Inc, 195 NLRB 1109, enforcement denied 472 F 2d
170 (C.A. 2, 1972), the Board recognized that threats-particularly those of
such a serious consequence as plant closure-"will, all but inevitably, be
discussed among employees."
6 In his partial dissent in Royal Typewriter Company, a Division of Litton
Business Systems, Inc, a Subsidiary of Litton Industries, Inc, 209 NLRB 1006
(1974), enfd. 533 F.2d 1030 (C.A 8, 1976), Member Fanning suggested that
meaningful bargaining-in a situation where the plant has been closed-may
well require more than "effects bargaining" to remedy the unfair labor
practices.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice and we
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intend to carry out the Order of the Board and abide
by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represen-
tatives of their choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees with
respect to these rights.
WE WILL NOT coercively interrogate our em-
ployees concerning their or other employees'
union activities.
WE WILL NOT make coercive statements to
employees related to their union activities.
WE WILL NOT threaten our employees with loss
of their jobs or plant closure in the event the
Union secures bargaining rights at our Corinth
plant.
WE WILL NOT engage in surveillance of our
employees' union activities, or the activities of
union agents involved with our employees and
their union activities.
STURGIS-NEWPORT
BUSINESS FORM , INC., A
DIVISION OF LITTON
BUSINESS SYSTEMS, INC.,
A SUBSIDIARY OF LITTON
INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Administrative Law Judge : On June 30,
1975, International Association of Machinists and Aero-
space Workers , AFL-CIO, hereinafter called the Union,
filed with the Regional Director for Region 26 of the
National Labor Relations Board , hereinafter called the
Board , a charge alleging that Sturgis-Newport Business
Forms , Inc., a Division of Litton Industries violated Section
8(a)(1), (3), and (5) by various acts and conduct. This
charge was amended on July 3 and again on August 5. On
August 6 , 1975, a complaint was issued on behalf of the
Board 's General Counsel by the said Regional Director. On
August 5 , 1975, a second charge (Case 26-CA-5736) was
filed by the same Charging Party alleging an additional
violation of Section 8(a)(5) of the Act. This charge was
thereafter amended on August 28, 1975, amended again on
October 14, 1975, and a third time on December 4, 1975. In
the meantime , on August 29, 1975, the said Regional
Director issued a complaint on the charge in Case 26-CA-
5736, amended the complaint in Case 26-CA-5655 and
consolidated the two for hearing . After the third amended
charge, the said Regional Director amended the complaint
for the first time , amending Respondent 's name as it
appears herein . Respondent duly answered the first com-
plaint set forth above including a number of affirmative
defenses subsequently struck down by order of Administra-
tive Law Judge Arthur Leff on October 7, 1975, and
answered the amended consolidated complaint. On the
issues thus joined the matter came on for hearing before
Judge Ivar Peterson who disqualified himself and the
matter finally came on for hearing before me at Booneville,
Mississippi , on January 13, 1976 . The hearing continued
until January 16, on which date it was adjourned by order
of the Board to allow Respondent 's counsel to go home to
Beverly Hills , California , for the weekend. It resumed on
February 3, 1976, at Corinth, Mississippi, and was closed
on February 4, 1976 . All parties were present at the hearing
and represented by their chosen representatives . All parties
had an opportunity to call and examine witnesses and to
adduce relevant and material evidence . After the close of
the hearing, briefs were filed by the General Counsel and
by Respondent . Upon the entire record in this case
including my observation of the witnesses and upon
consideration of the General Counsel 's and Respondent's
briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Sturgis-Newport Business Forms, Inc., is a division of
Litton Business Systems , Inc., which in itself is a subsidiary
of Litton Industries Inc.
Respondent is a corporation doing business in the State
of Mississippi with a plant in Corinth , Mississippi , where at
the time relevant hereto it was engaged in the printing, sale,
and distribution of business forms . It annually purchased
and received at its Corinth , Mississippi, plant products
valued in excess of $50,000 directly from points located
outside the State of Mississippi and annually sold its
products valued in excess of $50 ,000 from its plant in
Corinth, Mississippi , to points located outside the State of
Mississippi. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
H. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At the time of events concerned herein Respondent
operated plants in Sturgis, Michigan ; Whitewater, Wiscon-
sin; Hampton, Virginia; and Corinth, Mississippi. The
general offices of the corporation were located in Fitch-
burg, Massachusetts. The Corinth plant with which this
case is concerned was operating as of the commencement of
the calendar year 1975 as a satellite of the Hampton plant
under the general management of Delsie Hughes, who
STURGIS-NEWPORT BUSINESS FORMS 1429
reported directly to the division's president, Stanley Freed-
man. Delsie Hughes' assistant general manager was Gene
Crawford.
On October 1974, the Corinth plant which had been
autonomous within the division and had been doing poorly
from the standpoint of corporate profits became a satellite
of the Hampton plant. Hughes and Crawford went to the
Corinth plant and made an analysis of the existing situation
there. Shortly thereafter, Robert Lambert was made plant
manager at the Corinth plant. For the ensuing few months
management at the Corinth plant consisted of monthly
visits by Hughes and Crawford and apparently by Merle
Pierce, the production manager of the Hampton plant.
Around the first of April, Crawford was dispatched to live
in Corinth and take over the immediate management of
that plant. The appointment of Lambert appears to have
been unfortunate and by April or May the employees were
very disturbed by his management techniques. He was then
discharged.
Crawford, upon assumption of the day-to-day operation
of the Corinth plant, found that the backlog of orders
amounted to about one-half of a month's projected
production. He determined to attempt to increase the
production of the plant by increasing sales of continuous
forms used in the data processing industry which are
usually large orders with low manpower requirements and
by decreasing the production of register sets, a form
normally used by small businesses whose orders averaged
only a fraction of the value of the continuous sets.
Accordingly, the first weeks and perhaps months that he
was at the plant Crawford spent much of his time on the
road calling on dealers' located in the States contiguous to
the State of Mississippi. His efforts were rewarded with an
increase of the backlog which varied from $100,000 to
$175,000 in the succeeding months.
Early in May, probably as a result of the unrest among
employees occasioned by the management of Plant Manag-
er Lambert some of the employees approached Dale
Fortenberry, an organizer for the Union, at that time
working for the Industrial Union Department of the AFL-
CIO, in an attempt to achieve union organization. The
employees at Corinth had not theretofore been represented
by any labor organization. Fortenberry met twice in May
with a group of seven employees and gave them instructions
regarding preliminary organizing work. On May 23 he
conducted a third meeting at which he produced cards
authorizing the Union to represent employees. Many of
these cards were filled in with the name of Respondent and
the name of an employee from a list procured by Forten-
berry. At the May 23 meeting all of the 10 or 12 employees
present signed cards and many of them took additional
cards to call on persons who were not at the meeting and
solicit their signatures.
The campaign was immediately productive and on May
27, 1975, Fortenberry addressed a letter to Crawford as
manager of the Corinth plant requesting recognition,
offering to submit the authorization cards to a mutually
acceptable agency or person for a card check, and stating
that the Union had filed a petition for an election with the
Board to protect itself in the event Respondent refused to
recognize it. Fortenberry also requested notification of any
wage increases or changes in fringe benefits or incentive
plans or the projected institution of any new ones. Forten-
berry mailed the cards with a petition to Region 26 where it
was docketed as Case 26-RC-5031. In both the demand
and the petition the unit set forth was:
All production and maintenance, shipping and
receiving employees, employed at the employers' plant
in Corinth, Mississippi, excluding office clerical, profes-
sional, technical, watchmen, guards and supervisors as
defined in the Act.
On May 30, 1975, Crawford addressed a letter to Forten-
berry acknowledging receipt of his May 27 letter and
stating that he seriously doubted that Fortenberry spoke for
a majority of the employees. He suggested that the parties
proceed to an election before the Board. On June 3
Crawford addressed a letter to all employees, kicking off
the Company's campaign against the Union.
On June 18, 1975, a hearing on the representation
petition was conducted before a representative of the
Regional Director at Corinth, Mississippi. During the
course of this hearing Crawford, called as a witness by
Respondent, testified that Respondent was contemplating a
reduction in force at the Corinth plant due to its determina-
tion to change its product mix by dropping the production
of register forms. He testified that this would result in the
permanent layoff of somewhat around 20 employees. The
following day, June 19, Crawford called his supervisors
together and informed them of the layoff, advising them to
select employees in their various departments on a plant
seniority basis and advise the employees immediately so
they would have as much notice as possible that they were
to be laid off on June 26. On the same day, according to the
testimony of President Freedman, he became aware of an
inventory shortage of something in excess of $60,000 at the
Corinth plant which had not been reported by Delsie
Hughes. His reaction immediately was to order Crawford
to discharge an additional six employees and apparently
Freedman discharged Hughes. At the same time, or at least
in the next few days, Freedman abolished the satellite status
of the Corinth plant and installed or promoted Crawford to
the position of general manager of that plant reporting
directly to Freedman.
Freedman's memorandum to Hughes, dated June 19,
1975, approved the attempted change of the product mix in
the form of approving a recommendation for the relocation
of register forms manufacturing from the Corinth plant to
the Sturgis, Michigan, plant. The memorandum set a target
date for completion of the transfer of the equipment to June
27 with staffing based on the existing continuous forms and
unit set business. Upon Crawford's accession to the
position of general manager of the Corinth plant a target
date of August 1 was set for the completion of register form
work at the Corinth plant. After that date orders for register
forms were to be forwarded to the Sturgis plant.
1 Respondent's enterprise specializes in production for dealers as distin-
guished from direct sales to ultimate users of business forms.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Things didn't work out quite as planned. With a greatly
reduced staff and no immediate cessation of register form
work, Respondent was soon in the position of having its
supervisors and managerial personnel running machinery,
doing the printing and collating and assisting with the
shipping. This resulted from a continuing flow of register
form orders and also the fact that two of the remaining staff
suffered industrial accidents and the third took some
vacation time. Respondent early in August called back
three of the laid-off employees to assist it in getting out its
backlog.
As might be expected with managerial and supervisory
help doing the work in the plant, management suffered,
sales dropped, the backlog diminished, and the remaining
employees were required to work a great deal of overtime.
Even the supervisory employees who were working on
machines were paid for this overtime. The losses increased
and sometime in September, Freedman determined that the
plant was to be closed.
On the afternoon of September 29, 1975, Respondent's
counsel from California sent a telegram addressed to Dale
Fortenberry stating:
Economic conditions have forced closure Sturgis-
Newport Plant in Corinth. If you wish to discuss this
matter, please contact me at plant on Wednesday,
October 1.
The telegraph Company delivered the telegram by mail and
it was received on the afternoon of October 1. Fortenberry
was no longer employed by the International and his
successor immediately attempted to call Diedrich at the
plant but was told that he was not there. He accordingly
mailed a letter to Diedrich in California complaining that
he had not been informed prior to the shutdown of the
plant and that Diedrich was not at the plant when he
telephoned at noon on October 1. The writer H. C.
Summers, Grand Lodge Representative, demanded that the
plant be continued in operation pending negotiations
regarding the closure and the effects thereof on the
employees. Diedrich promptly answered Summers' letter
stating that he was not advised that a call to him had been
received at the plant on October 1, suggesting that
Summers had not made a good-faith, diligent effort to
contact him, stating that the plant had been losing money
each month and agreeing that Respondent would provide a
representative to meet with Summers if he could show
Respondent how to reverse the losses and show a profit in
the neighborhood of 10 percent of gross sales.2
Summers made no further attempt to contact Respon-
dent with a view to bargaining.
B. Discussions and Conclusions
The General Counsel contends that Respondent has
violated Section 8(a)(1) by various acts of interrogation and
threats by supervisors directed to employees ; Section
8(a)(1) and (3) by the layoff of June 26 , 1975; and Section
8(a)(5) by its failure to bargain before the decision to layoff
and by its failure to bargain before the decision to close the
2 The profit figure of 10 percent of gross sale appears to be a magic
number with Litton Industries and its subsidiaries, that being the goal
plant. The General Counsel in addition contends that upon
its closing of the Corinth plant Respondent additionally
violated Section 8(a)(5) by its failure to meet and bargain
with the Union regarding provisions for the employees who
were discharged when the plant closed.
On the threshold of the issues it is clear that the
Respondent has failed and refused to bargain at all steps in
this proceeding. Bona fide collective bargaining would have
required that Respondent notify the Union in advance of
its consideration of the layoff and bargained upon request.
Clearly this was not done. Similarly, Respondent's decision
to shut the plant down, which had been under contempla-
tion at least since July 1, required notice to the Union. And
finally Respondent's tongue-in-check notification on Sep-
tember 29 that the plant would be closed the next day, sent
by telegram that would surely not be delivered in time to
permit the Union to respond by the time the plant was
closed and the exchange of letters thereafter through which
Respondent challenged the Union by setting a condition
precedent to collective bargaining, a goal which it appeared
Respondent had not itself been able to meet, had nothing to
do with collective bargaining as regarded by the Board.
But whether the failure and refusal of Respondent to
bargain collectively in good faith with the Union violates
the statute depends on a chain of prerequisites each of
which must be examined and most of which have been
placed in issue in the instant proceeding.
The duty to bargain falls upon an employer when the
Union is shown to represent an uncoerced majority of the
employees in an appropriate unit. The employer may then
refuse to bargain until the Union proves its majority except
in circumstances where the employer has committed unfair
labor practices after the demand of such a nature that the
normal proof of the Union's majority, i.e., an election
conducted by the Board, is no longer available because the
laboratory conditions under which the Board election must
be conducted have been destroyed by the unfair labor
practices of the employer. The General Counsel in this case
has undertaken to forge each of the links of the chain that
leads to the duty to bargain on the part of the Respondent
and an examination of each such link is necessary.
1. The unit
The unit which was first laid out by the Union in its initial
demand to the employer for bargaining consisted of all
production and maintenance employees with the normal
exclusions. After a representation hearing the Regional
Director issued a Decision and Direction of Election
finding that all production and maintenance employees and
shipping employees employed at Respondent's Corinth,
Mississippi, plant, excluding office clerical, professional,
and technical employees, guards and supervisors, consti-
tuted an appropriate unit . Respondent requested a review
of this decision and the Board did not review but amended
the unit description to include A and B employees and the
scheduler. This unit was not attacked at the hearing in the
instant case and I find that the unit as spelled out by the
Regional Director is an appropriate unit for purposes of
toward which all the divisions are expected to strive There is no indication
that the Corinth plant ever approached that goal
STURGIS-NEWPORT BUSINESS FORMS 1431
collective bargaining within the meaning of Section 9(b) of
the Act.
2. The majority
The Union's demand for recognition was received by
Respondent on May 29, 1975, by which time the General
Counsel contends a majority of the employees had desig-
nated the Union as their collective-bargaining representa-
tive. There is little direct evidence in the record with regard
to employees in the unit as of that date. The General
Counsel subpenaed the necessary evidence from Respon-
dent . Respondent moved at the hearing to quash the
subpena , which motion was denied but nevertheless Re-
spondent refused to produce the subpenaed evidence.
Accordingly, the General Counsel submitted his case on the
basis of the so-called Excelsior list submitted on July 7,
1975, pursuant to the Board 's order in the representation
proceeding . This list was submitted in two parts, a list of 20
employees who continued in Respondent 's employ after the
June 26 layoff and a list of 31 employees who had been laid
off on June 26. I find, in the absence of contrary evidence,
the 51 persons shown on Respondent 's Excelsior list were
employed on May 29.
Although the Board's Order that Respondent furnish the
Excelsior list required that the list contain the names of all
of the eligible voters, the list furnished by Respondent
contained in addition Cliff Hare , Steve Coleman , Marcus
Brewster , and John Dunning, all of whom were stipulated
at the representation hearing to have been supervisors
within the meaning of the Act and excluded from the unit.
The list also contained the name of George Dangler, who,
the record reveals, was the foreman of the pressroom and
continued in that position until the plant closed . Accord-
ingly, the Excelsior list contains 5 acknowledged supervi-
sors who must be excluded for all purposes reducing the
employee complement to 46.
The General Counsel produced 29 cards signed by
employees . Respondent contends that all 29 cards should
be disregarded because of the incidence of talk with regard
to an election at the plant during the card signing period. I
find that the entire thrust of the campaign from Fortenber-
ry to his 10 or 12 in -plant organizers and from them to the
employees was clearly that the cards were to be used to
demand recognition and only in the event that Respondent
refused recognition would the cards be used to seek an
election . As Respondent put it in his brief:
By the testimony of General Counsel's own witnesses
the vast majority of employees here were told the cards
would be used to seek voluntary recognition from the
company and if the company did not voluntarily
recognize the Union the cards would be used to obtain a
secret ballot, Board-conducted election where the
employees could decide the issue.
I find that this message serves rather to validate the cards
than to invalidate them as Respondent contends . The cards
themselves are a clear and unequivocal delegation to the
Union of authority to represent the employees and contain
no language suggesting that the cards were to be used for an
election . As the Supreme Court pointed out in the Gissel
decision: 3
Employees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words
calculated to direct the signer to disregard and forget
the language above his signature.
There is no evidence in the record that any employee was so
informed by any union adherent, with the exception of the
testimony of A. H. Rickman who testified that Tommy
Regan gave him a card and "he just told me that some of
them were wanting to have a union election ." He futher
testified that he read the card before he signed it and
understood what it said and that he was asking that the
IAM be his collective -bargaining representative . He further
testified that neither Regan nor anyone else told him that
the card would be used only in an election . Regan testified
that he told Rickman that if he signed the card it would be
for the Union to be able to represent him as a bargaining
agent . I find nothing in this testimony that would indicate
that Regan said anything "calculated to direct (Rickman)
the signer to disregard and forget the language above his
signature ." I accept the card.
The authorization card of Virginia Howell is undated.
Howell was not called to testify. The card on its back
contains the date stamp of the Regional Office stating that
it was received on June 25, 1975, and was dated by Tommy
Regan with the date July 23, 1975. Regan testified that he
had no recollection of the actual date on which he talked to
Howell but that it must have been June 23 or May 23 rather
than July 23 inasmuch as the card had been turned into the
Labor Board, on June 25. No explanation is offered for
failure of any party to call Howell to the witness stand. For
purposes of determining whether the Union represented a
majority of the employees on May 29 I reject the card of
Virginia Howell.
In sum I find that all of the 28 cards signed on or before
May 29 are valid and constitute a clear majority of the 46
employees in the unit on May 29.
3. The demand
The Respondent contends that the Union's letter de-
manding that recognition received by it on May 29 was
equivocal because at the same time the Union filed a
petition for an election . In fact the demand letter was
unequivocal and spelled out with great particularity the fact
that the petition was filed only for the purpose of protecting
the Union in the event Respondent should refuse to
recognize it and that the Union was prepared to withdraw
the petition immediately upon Respondent 's agreement to
be bound by a card check or to recognize the Union. I reject
Respondent 's contention in this regard and I find that the
demand was clear and unequivocal and further that the
demand was for bargaining in a unit appropriate for
collective bargaining.
3 N L R B v Gissel Packing Co, Inc, 395 U S 575, 606 (1970)
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Unfair Labor Practices
The General Counsel contends that he has presented
evidence that Respondent has engaged in acts so pervasive
and widespread as to require a bargaining order under the
Board's decisions in Trading Port, Inc., and Steel Fab, Inc.,
and the Supreme 's Court's decision in Gissel, supra. 4
The Respondent contends that even if I were to find that
the acts were so pervasive and widespread as to require a
bargaining order it should not be made retroactive to the
time of the demand because at the time Respondent acted it
was acting under the presumption that Steel Fab, Inc., was
the prevailing law and a retroactive bargaining order would
not be granted. Accordingly, since the plant closed before a
bargaining order could issue no bargaining order is
warranted.
The General Counsel has alleged various acts which he
contends violates Section 8(ax1) of the Act and alleges that
the shutdown or the layoff of June 26 violated Section
8(a)(3) of the Act. An examination of these allegations is
now in order.
1. The 8(a)(1) allegations
The first union meeting was May 11, 1975. According to
the testimony of Morris Simms, an employee, John Dun-
ning, supervisor of shipping came up to him at his press and
asked him a day or two later whether he had been at the
meeting Sunday. Simms replied "what meeting?" Dunning
said that he knew Simms was there and walked away.
Dunning testified that he did not recall the alleged
conversation. I find that the conversation took place as
alleged.
Mike Knight testified that Dunning asked him if he had
attended the union meeting of May II and Mike admitted
that he had. Dunning then inquired whether there had been
a big crowd and Knight said that there was a pretty good
size crowd. Again Dunning testified that he did not recall
the conversation. Dunning, an elderly man, testified that he
had retired after the plant closed. From the tenor of his
testimony, I received the impression that he had attempted
to wipe from his mind the specifics of the last few months of
his employment. It is impossible to say whether his memory
was really as bad as he indicated. He testified that he had
received no instructions with regard to discussing the
Union with the employees although it is clear that all the
supervisors including Dunning had received such instruc-
tions. I credit both Simms and Knight in their versions of
the conversation with Dunning.
Ronald Castile testified that Marcus Brewster, an admit-
ted supervisor, after the first union meeting asked him what
the problem was and stated that he had heard some talk
about the Union. Castile agreed that he had heard some
talk about the Union too and Brewster stated that he didn't
figure that the Union would get more than 30 or 40 percent
of the employees signed up. Castile countered that he
thought it would be closer to 80 or 90 percent. Brewster
admitted the conversation as well as other conversations
with other employees. His testimony made it clear that he
had been told not to directly ask employees about the
Union but he had utilized the device of starting conversa-
tions with employees, asking them if there was anything
new or was there anything wrong or the like in order to
draw them into conversation about the Union. Indeed, he
seemed to take considerable pride in his success in
ascertaining what was going on with the union organization
by this device. Using this device, Brewster secured an
admission from John Smith that he would continue to do
anything he could to help the Union get into the plant, with
Teddy Wigginton, to whom Brewster suggested that Wig-
ginton talk some sense into Smith concerning the Union,
and again with Wigginton in mid -June when Brewster came
up to Wigginton and asked him what was going on.
Wigginton, who had been out of the plant for a period of
time, told Brewster he didn't know what he meant and
Brewster stated that he was not supposed to talk to any
employees about certain things but Wigginton knew what
was going on. Brewster asked why Wigginton did not tell
him about it. Wigginton answered "if you're talking about
the union, I don't know because I have been out of touch
with the plant and have not attended the Union meetings."
Brewster answered, "All I can tell you is to do what ever is
best for your family."
According to employees Edward Hohn, on June 2, the
day after the union meeting, Brewster asked him if Hester
Rickman, another employee, was at the meeting and Hohn
replied he didn't know. Then Brewster asked how many
employees were there, Rickman responded that all the
pressmen were there. Brewster said that he had heard that
there were two or three who were not there. Hohn also
testified that Brewster said that if the Union came in the
plant would probably close the doors. Brewster's version
was simply that he asked Hohn what was new and Hohn
volunteered that a meeting had taken place. Brewster asked
if they had a pretty good crowd and Hohn told him that
there were 8 or 10 people there. Brewster denied asking
about Hester Rickman or stating that the plant would
probably close the doors. I credit Hohn's testimony, I could
not tell whether Brewster was deliberately falsifying his
testimony or suffering from a poor memory but in either
event I found his testimony incredible, in that he could
recall very little, if anything, of the conversations other than
that he was able to directly deny stating anything that in his
view of his case would redound to Respondent's disadvan-
tage. Such a selective recollection in my experience clearly
destroys a witness' credibility.
I found that the interrogation by Dunning of Simms and
Knight and by Brewster of Castile, Smith, Wigginton, and
Hohn constitutes an interference with the employees'
collective-bargaining and organizational rights and have
some degree of coercive impact on the employees. Respon-
dent contends that since the employees did not stop their
union organizing as a result of the interrogations they were
not coerced. The Board has never looked to the subjective
reaction of employees to determine whether acts of an
employer were coercive nor shall I.
Employee Rickman testified that Brewster, whom she
had known for over 20 years, told her that Shirley Burcham
had said that Rickman was not going to be kept because
Steel-Fab, Inc, 212 NLRB 363 (1974), Trading Port, Inc, 219 NLRB
298(1975)
STURGIS-NEWPORT BUSINESS FORMS 1433
Rickman was a union supporter . Brewster denied this
conversation . There's no evidence that Burchman was a
supervisor and accordingly Respondent contends that this
was not coercive . However , I find it to be coercive . Without
regard to whether Burchman made such a statement I
credit Hester Rickman that Brewster made this statement
although he denies it . I find Hester Rickman completely
credible and I find that the statement constitutes coercion
of employees within the meaning of Section 8 (a)(1).
Morris Simms testified that Foreman George Dangler
and he were talking on the loading dock about 2 weeks
before the layoff of June 26 . Simms asked Dangler what he
thought the Company would do if the Union came in and
Dangler answered that it was his personal feeling that the
Company would just lock the doors . Dangler was not called
to testify . I credit Simms . I find the statement a coercive
threat and violative of Section 8(a)(1).
Claude Hinton testified that on June 19 he was told that
he was to be permanently laid off and talked to Brewster
about it . He asked Brewster if the layoff was due to the
union activity and Brewster said all he was doing was
standing in the background and he had nothing to do with
the things going on in the plant . Brewster testified that all
he said was that the layoff was permanent and that was all
that he knew . I conclude that Brewster's answer was no
more than a disassociation of himself from any knowledge
of the reason for the layoff, the specific question asked him,
and has no coercive impact . I find that this does not
constitute a violation of the Act.
On another occasion Hinton asked Brewster what a
strange man was doing walking around the plant. Accord-
ing to his testimony Brewster replied that he was some kind
of a labor relations man who would come down there
because there were some complaints about problems in the
plant . Hinton admitted employees had problems and that
they were dissatisfied with the treatment they were getting
to which Brewster answered that he hoped Hinton made
the right decision and would do what was best for himself
and his family. Brewster , finally on cross-examination,
admitted that he had a conversation in which he told
Hinton that the stranger walking around the plant was
some kind of labor relations man but he denied anything
else testified to by Hinton . Hinton also testified that
Brewster stated during the conversation that his only
dealing with the Union was when he worked at a hosiery
mill and he lost his job over it. I don't believe , under the
circumstances , that this statement was coercive. The
General Counsel contends that the juxtaposition of the
suggestion that Hinton make the right decision and do what
was best for himself with the statement concerning Brew-
ster having lost his job over a union amounts to a threat. I
find that , under all circumstances , Hinton would not
reasonably have been threatened by this statement.
Employee Gary Marolt testified that General Manager
Crawford , about the first of May, had a conversation with
him concerning a rotating shift that was about to start.
Marolt told Crawford that he didn 't think the employees
would go along with it and Crawford said that he hoped
that they would because he wouldn 't want to fire anyone
for not doing his job or for hurting the Company.
According to Marolt , Crawford went on to say that when
he was in Hampton they had to lay off employees because
of the Union because they didn't have time to train them.
This incident took place before the union organization
commenced . I'm not satisfied that either Moralt's or
Crawford's recollection of the conversation was complete,
since the statement attributed to Crawford by Marolt was
clearly a non sequitur. I find that this alleged threat was not
established by a preponderance of the evidence and I shall
recommend that this allegation be dismissed.
Hester Rickman testified that she was moaning to
Crawford about her layoff and that Crawford told her that
he was allowed to work only 26 employees for a year and
could not promise her that she would be called back.
However , Crawford suggested that she go home and draw
her unemployment for 12 months and then if she needed a
job to get in touch with him and maybe he would have
something for her . Rickman answered that it didn 't look as
though she would be working there anymore and Crawford
said , according to Rickman, "Well you know we do these
things , we get mad and it's kind of like a marriage we get
mad and do things that we are later sorry of." Crawford
admitted having such a conversation but denied the last
quoted statement. I credit Rickman that Crawford made a
statement somewhat as she reported . However , I find it too
ambiguous to constitute an unlawful coercive statement on
his part . It became coercive to Mrs. Rickman only because,
as she stated, she searched her mind and could think of
nothing that would have led to her feelings of guilt other
than the fact that she signed a union card . I don 't believe
the subjective reaction of an employee is anymore valid to
find violation than to reject one. I reject this allegation and
I shall recommend that the complaint be dismissed with
regard to it.
Employees Castile and Moralt testified that one day on
the loading dock George Dangler saw a campaign card
from a local sheriff's election campaign in Castile 's posses-
sion . Castile asked Dangler if he was going to vote or vote
right and Dangler took the card out of Castile's pocket and
said : "Boys , I hope you don't do anything to jeopardize the
plant or your jobs." The General Counsel contends that this
statement is a strong threat that the employees' jobs and
future were in dnager if they did not curtail their union
activities , although the conversation seemed to have noth-
ing to do with union activities but rather with the election of
a sheriff. The inferences are all against the General Counsel
in this regard and I find that the statement made under the
circumstances could hardly be coercive with regard to
union organization . I shall recommend therefore that this
too be dismissed.
Union Agent Fortenberry and employees Castile and
Simms all testified that after one of the union meetings at
the Windsor Inn Fortenberry was followed home in his car
by Nathan Coates , Respondent's office manager and an
admitted supervisor . According to their testimony, Coates
drove by the motel as the meeting was breaking up, heading
south , and within a few minutes drove by it again , heading
north . On his return Fortenberry had just left the motel to
drive to his home . Employees Castile and Simms fell in
behind Coates . Castile followed Coates all the way to
Fortenberry's house . As Castile slowed up at Fortenberry's
house Coates , who had been well ahead of him, reappeared
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heading the other direction and he and Castile waved to
one another.
Coates ' version was that he went out for an afternoon
drive and on passing by the motel saw Castile's truck and
immediately surmised that a union meeting was taking
place . He testified that he then drove north by another road
and continued his ride , not seeing Fortenberry or any
employee until he noticed Castile and his truck on the road
some 12 miles from town and exchanged greetings with
him.
I find Coates ' story completely incredible . The most
incredible circumstance is that solely on the evidence of
seeing one employee 's car parked in front of a motel he
surmised there was a union meeting . And second, that
having followed Fortenberry over a very circuitous route on
back country roads , for a distance of more than 12 miles,
Coates denied any knowledge that Fortenberry was in front
of him . Coates would have me believe that the whole affair
was one coincidence piled on top of another . The coinci-
dences stretch my credulity too far and I do not believe
him. I find that Coates engaged in an act of surveillance. I
assume , as a relative newcomer to the town, he was
unaware of the identity of Fortenberry , a long-time resident
of Corinth . I find that his surveillance is reasonably
calculated to interfere with , restrain , and coerce employees
in their organizational rights and violates Section 8(a)(1) of
the Act.
Summing up , I find that Respondent violated Section
8(a)(l) by the six incidents of interrogation of employees
concerning their or other employees ' union activities, by the
threats of discrimination by Brewster to Rickman and by
Dangler to Simms , and by the surveillance by Coates.
2. The layoff
The General Counsel contends that the layoff of June 26
was in retaliation for the employees ' union activities and
was violative of Section 8(a)(3) and (1) of the Act. The
Respondent contends that the layoff was occasioned by its
need to change the product mix at the Corinth plant by
dropping the register printing which required high man-
power and by going in for continuous forms to a much
greater extent.
The record is clear that the Corinth plant was not
productive of profits, certainly not within the projections of
Respondent for the year 1975. Various steps had been taken
by Respondent to improve the profit picture at the Corinth
plant , including changing management and product mix.
Before the Union commenced its negotiations Respondent
was considering the cessation of activity on the register
forms , its lowest paying type of work and yet its most
common type of order . This necessitated a greater produc-
tive capacity for continuous form work that Respondent
sought , and permitted a reduction of the productive
capacity of the register work which Respondent was
attempting to turn away.
The annual reports of General Manager Hughes reveal
that in its changes in the past Respondent had some
difficulty with its customers as a result of catalog changes
and price changes and Respondent therefore necessarily
had to approach the cessation of its main line of work at the
Corinth plant in a gingerly fashion to avoid losing the
custom of its dealers who had been dependent upon
Respondent to produce their register forms . As a result
Crawford made business trips throughout the midsouth
calling on dealers , attempting to sell continuous forms and
explaining to the dealers the problems at the Corinth plant.
In the course of these calls early in April, Crawford called
upon Richard Mason , the owner of a dealership in
Memphis , Tennessee , and during their conversation told
him of Respondent 's plan to eliminate register work and go
in strongly for the production of the continuous forms and
unit sets on a ratio of 60 to 40.
In a memorandum , of March 14, 1975 , President Freed-
man told General Manager Hughes: "The more I think of it
the more I'm inclined to feel the need to come to grips with
the problem of what to do with the register forms in Corinth
... does it really represent a viable part of Corinth's
business.
Crawford testified without contradiction that since he
had made a plant visit to the Corinth plant in October 1974
he had been pressing Respondent to drop the register forms
business and in his view it was clearly the largest factor in
the continuing losses at that plant . By March it is clear
Crawford had managed to get Freedman seriously con-
cerned about his suggestion and, by April , Crawford was
telling at least one of his customers that the new plans for
the Corinth plant included little or no register work. The
General Counsel would have me infer from the fact of the
union campaign commencing in mid-May and from
Respondent's union animus that the decision to get rid of
the register work was at least in part reached in order to
dispose of the Union . I do not find a preponderance of the
evidence before me supporting the General Counsel in this
contention and I am not prepared to raise this inference
against the substantial evidence of Respondent 's business
judgment to eliminate the nonpaying production and
attempt to supplant it with that which had been demon-
strated at the Hampton plant to be a good paying,
productive, product line . Accordingly, I find there is
insufficient evidence on the record as a whole to support a
conclusion that Respondent violated Section 8(a)(3) by the
layoff which followed as a natural result of the attempted
change in Respondent 's product line. I shall recommend
that the complaint be dismissed insofar as the layoff is
alleged to be a violation of Section 8(a)(3) and ( 1) of the
Act.
I conclude that the unfair labor practices found above
consisting of interrogations, threats to two employees, and
surveillance of the union meeting are insufficient to destroy
the laboratory conditions deemed necessary by the Board
for the conduct of an election , nor are they so pervasive and
widespread as to warrant a bargaining order under the
Gissel Steel Fab and Trading Port decisions of the Board.
This being the case, while as I have shown above all the
prerequisites to a bargaining order are present , the duty of
Respondent to bargain with the Union either about the
layoff or the subsequent closing of the plant did not apse
and accordingly no violation of Section 8(a)(5) may be
found . Accordingly , I recommend that the complaint be
dismissed insofar as it is alleged that Respondent violated
Section 8(a)(5) of the Act.
STURGIS-NEWPORT BUSINESS FORMS
While I have found that Respondent violated the Act by
surveillance, interrogation, and threats, the record reveals
that the Corinth plant is no longer operating and no
employees exist in Corinth. There is no indication that
Respondent plans to reopen Corinth plant and there is no
indication that Respondent's unfair labor practices have
had any effect on any other of Respondent's plants.
Therefore there appears to be no occasion for the posting
by Respondent of a notice in the instant case. I recommend
therefore that no notice posting requirement be ordered at
this time . However it appears that Respondent still has a
lease on the Corinth plant and could reopen there at any
time. I shall therefore recommend that if Respondent
reopens the plant it shall post the notice set forth below.
CONCLUSIONS OF LAW
1. Sturgis-Newport Business Forms, Inc., a Division of
Litton Business Systems, Inc., a Subsidiary of Litton
Industries , Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees and
shipping employees employed by the Respondent at its
Corinth, Mississippi, plant, excluding all office clerical,
professional and technical employees, guards and supervi-
sors as defined in the Act constitute an appropriate unit for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. By coercively interrogating employees concerning
their and other employees' union activities, by threatening
employees with loss of theirjobs and closing the plant in the
event of union organization and by engaging in surveillance
of a union organizational meeting and following a union
organizer by automobile, Respondent has interfered with,
coerced, and restrained employees in the exercise of their
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
5. Respondent has not otherwise violated the Act.
6. Respondent's violations of Section 8(a)(1) of the Act
occurring in connection with its operations 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 thereof.
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order and all objections thereto shall be deemed
waived for all purposes
THE REMEDY
1435
Having found that Respondent has committed acts in
violation of Section 8(a)(1) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case and pursuant to Section
10(c) of the Act, I make the following recommended:
ORDERS
Respondent Sturgis-Newport Business Forms, Inc., a
Division of Litton Business Systems , Inc., a Subsidiary of
Litton Industries Inc., its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
or other employees' union activities.
(b) Engaging in surveillance of its employees' union
activities, and the activities of union organizers engaged
with its employees in their union activities. ,
(c) Threatening employees with loss of job or plant
closure in the event of union organization of the plant.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) In the event Respondent shall reopen its Corinth,
Mississippi, plant, post thereat the attached notice marked
"Appendix." 6 Copies of said notice, on forms provided by
the Regional Director for Region 26, shall be posted
immediately upon reopening of the plant, and be main-
tained by Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 26, in
writing, immediately upon reopening of the Corinth,
Mississippi, plant, if that plant should be reopened, what
steps Respondent has taken to comply herewith.
6 In the event that the Board 's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order to the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."