Louisburgh Sportswear Co.

National Labor Relations Board - Board Decisions

Nov 8, 1968

173 N.L.R.B. 678 (N.L.R.B. 1968)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louisburg Sportswear Co. and Amalgamated Clothing
Workers of America , AFL-CIO. Cases
11-CA-3423, 11-CA-3463, and 11-RC-2596
November 8, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 24, 1968, Trial Examiner Harry R. Hinkes
issued his Decision in the above-entitled proceeding,
finding that the Respondent has engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that the
Respondent had not engaged in other unfair labor
practices alleged in the complaint, and recommended
that such allegations be dismissed. The Trial Examiner
found, in addition, that the Respondent's unlawful
conduct had interfered with a Board election held on
October 12, 1967, and recommended that the
election be vacated and set aside. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Charging
Party filed cross-exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
lExaminer's Decision, the exceptions, cross-excep-
tions, and briefs, and the entire record in these cases,
and hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner with the
modification noted below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Louisburg Sportswear
Co., Louisburg, North Carolina, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the petition in Case
11-RC-2596 be, and it hereby is , dismissed , and all
proceedings held in connection therewith be, and
they hereby are, vacated.
I In view of the numerous other violations of Section 8(a)(1) of the
Act, we find it unnecessary to consider whether under the circum-
stances existing in these cases the showing of the film "Women Must
Weep" constituted and independent violation of Section 8(a)(1) of the
Act, and therefore do not adopt the Trial Examiner 's finding in that
respect.
2 We agree with the Trial Examiner 's finding that the Respondent's
refusal to bargain with the Union violated Section 8(a)(5) and ( 1) of the
Act However , an order directing the Respondent to bargain with the
Union, upon request, is also necessary to remedy the effects of its other
unfair labor practices , since the record clearly shows that the Union
represented a majority of the employees in the appropriate unit when
the Respondent initiated its course of unfair labor practices aimed at
destroying this support Therefore , we shall order the Respondent to
bargain, upon request, with the Union to remedy both its violation of
Section 8(a)(5) and its violations of Section 8(a)(1) of the Act See
Bryant Chucking Grinder Company, 160 NLRB 1526, 1530, enfd 389
F 2d 565 (C A. 2), Fabricators, Incorporated, 168 NLRB No. 21.
In finding that the Union represented a majority of the employees,
we need not rely on those union cards introduced into evidence which
were neither signed nor authenticated by the employees whose
designation of the Union they purport to bear. We find that even
without these designations, the Union at times material herein was the
duly designated representative of a majority of the employees in the
appropriate unit.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES , Trial Examiner: The complaint in Case
11-CA-3423 was issued on October 23, 1967, and the
complaint in Case 11-CA-3463 was issued on January 18,
1968, pursuant to charges filed by Amalgamated Clothing
Workers of America, AFL-CIO, herein called the Union, on
September 5 and October 23, 1967, respectively. These cases
were consolidated with Case 11-RC-2596 by order of the
Regional Director for Region 11 on January 18, 1968.
Louisburg Sportswear Co., Respondent herein, is alleged to
have engaged in unfair labor practices affecting commerce by
the discharges of two of its employees in violation of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, by the commission of acts interfering with, re-
straining and coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act in violation of Section
8(a)(1) of the Act and by its refusal to bargain collectively
with the representative of its employees in violation of Section
8(a)(5) of the Act. Case 11-RC-2596 involves objections to
an election held under the supervision of the Regional Director
among the production and maintenance employees of the
Respondent which objections also relate to allegations in the
foregoing complaints . By answer duly filed Respondent denied
the commission of any unfair labor practices as alleged.
A hearing was held before me at Louisburg, North Carolina,
on February 26, 27, 28, 29 and March 1, 11, 12, 13, and 14,
173 NLRB No 101
LOUISBURG SPORTSWEAR CO. 679
1968, at which all parties were represented and were afforded
full opportunity to participate, examine witnesses and adduce
relevant evidence. During the hearing, upon motion of counsel
for the General Counsel, amendments to the complaint were
allowed adding additional instances of interference with the
organizational rights of employees and a refusal to hire an
applicant for employment because of her union activities. At
the conclusion of the hearing counsel for each of the parties
waived oral argument. Instead, each has subrrutted a compre-
hensive brief which has been given careful consideration.
Upon the entire record in this proceeding, I make the
following:
FINDINGS OF FACT
I JURISDICTION
The Respondent is and has been at all times material herein a
corporation duly organized under and existing by virtue of the
laws of the State of North Carolina with a plant at Louisburg,
North Carolina , where it is engaged in the production and
distribution of sportswear During the 12 months preceding the
issuance of the complaints in this proceeding , which period of
time is representative of all times material herein, Respondent
produced , sold and shipped goods valued in excess of $50,000
from its North Carolina plant to points outside the State of
North Carolina and during the same period of time received
goods valued in excess of $50,000 at its North Carolina plant
from points outside the State of North Carolina. The complaint
alleges, Respondent's answer admits and I find that the
Respondent is now and has been at all times material herein an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits, and I
find that the Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A. The Discharge of Elleanor
Rice and Linda Rich
Linda Rich started working for the Respondent in 1962.
Elleanor Rice started working for the Company in 1964. Jerry
Costa, the manufacturing manager for the Respondent's
Louisburg plant and three other plants, was put in charge of
the Louisburg plant in 1966. Finding operational defects, he
instituted a re-engineering program which was completed in
the pressing and folding department where Rich and Rice
worked about a week before Christmas, 1966 Among other
things, the jobs of pressing and folding were combined into
one job and new rates were set for the new job. The operators
did not like the change and many of them deviated from the
newly prescribed methods. Foreman Meeks testified that Rice
and Rich were the ones who persistently deviated from these
methods but Supervisor Winstead contradicted Meeks' testi-
mony and I credit her testimony inasmuch as she was in a
better position to know about the performance of Rich and
Rice and other workers under her immediate supervision.
In March 1967, employee Murphy was discharged and Rice
asked Meeks for the reason. Although Meeks denied the
conversation I credit the testimony of Rice and Rich to the
effect that Meeks professed ignorance of the reason for
Murphy's discharge to which Rice replied, "I think that's why
we need a union in here because if things like this happen
maybe we would hear both sides of it."
In May 1967, Rice received an International Ladies Gar-
ment Workers Union card (not the Union involved in this
proceeding) which she signed and mailed in. She asked Meeks
if he had received one and he said he had Later, she told
Meeks she would put her union card on her machine. Although
Meeks denied these conversations while admitting that he did
receive that union's leaflet from someone else, I credit the
testimony of Rice and conclude that by May 1967, Meeks was
well aware of Rice and Rich's union sympathies.
At about the same time a rumor was circulated to the effect
that Supervisor Winstead was going to be relieved of her duties.
Rice and Rich asked Meeks about it and when he refused to
tell them Rice answered "that's the reason we need a union in
this plant. If we had a union in here, things like this wouldn't
happen." Rich agreed with her but Meeks replied "the Union is
not going to give you any more than this company already
has " Here, too, although Meeks denied any talk about the
Union on this occasion, I credit the testimony of these two
employees after careful consideration of their testimony and
their demeanor on the stand vis-a-vis that of Foreman Meeks.
Finally, Rice asked Meeks to call a meeting to discuss the
problems of the department. Meeks refused to call a meeting
but was unable to recall the reason for the refusal. Rice
testified, however, that Meeks refused to have a "mob
meeting" and Rich testified that Meeks replied "he wasn't
going to have any mass mob meeting." I credit the testimony
of Rich and Rice.
On June 14, Sam Vick, Respondent's plant manager, called
a meeting of all the pressers, folders and turners to announce
the termination of Supervisor Winstead. This meeting was
short and the employees went back to their work stations.
They returned to see Vick and to ask why Winstead was being
replaced. Rice asked if Winstead was being given a promotion
or a demotion Vick replied that Winstead had been out sick a
lot and that somebody else could do the job better. The
employees asked Vick to reconsider his decision but Vick
refused. Rich then brought up the subject of wage rates and
their readjustment but Vick replied only that the rates were
fair, making no mention of any wage increase plan. The
meeting lasted about an hour and a half after which work was
resumed.
Later that afternoon Meeks called Rich and Rice to see
Plant Manager Vick. Vick told Rich and Rice that they had
complained constantly and that he thought they would be
happier working elsewhere. Rice asked if that meant they were
fired to which Vick replied by handing each of them a check.
Vick's testimony was substantially the same adding that he
told them there are some people who worked at the plant who
go out at night when they go home and run the place down.
When Rice started to deny such activity Vick testified that he
did not accuse her of doing that.
On the discharge slips given Rich and Rice the next day
Vick had simply noted "difference of opinion and disagree-
ment." Meeks testified, however, that Rich and Rice were
guilty of deviating from prescribed methods of operation,
itemizing four specific instances in his testimony plus one
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instance observing Rice pressing from a stack. Vick, however,
itemized a different list of methods deviation reported to him
by Meeks. Meeks testified that Rich and Rice would follow
methods for only a few minutes after being shown and then
revert to their own procedures. Vick, however, testified that
their work looked pretty good for 3 or 4 days after which Rich
and Rice would go back to the same old way. Vick admitted,
however, that he never warned these two employees about
their methods deviation before their discharges. Meeks testified
that he did reprimand them "for not pressing tape, not bosom
pressing, not pressing the fold properly or pressing properly "
No mention was made of reprimands for stack pressing. Plant
Manager Vick testified that he saw Rice pressing from a stack
on three different occasions and on the first two occasions
called it to the attention of Supervisor Winstead. Rice admitted
that there was one occasion when she pressed from a stack
because the shirts needed merely a touching up due to a label
change. This was corroborated by Supervisor Winstead who
also denied that Vick commented about it on two occasions.
About a week before the discharge of Rich and Rice which
took place on June 14, Meeks informed Costa that Rich
wanted to see him. When Costa came over, both Rich and Rice
talked to him about the rates. Rich showed Costa a different
way of pressing the shirts which she thought was better. Costa
testified that it was this questioning of the methods that
prompted the discharge of these two employees. He admitted,
however, that he told them that his methods were always
under review and that he would check the methods and let
them know in a couple of days. Upon questioning the
consistency of keeping methods under review while discharging
employees for questioning methods, Costa then stated that the
discharge was reinforced by Vick's report of methods deviation
by these employees He finally testified that their questioning
of his methods was the primary motivating cause of the
discharge.
There are other inconsistencies in the testimony of the
Respondent's witnesses. Vick testified that during a conver-
sation with Costa, Costa brought up the question of pressing
from a bundle. He further testified that Costa was upset about
this and referred to both Rice and Rich. This conversation
allegedly took place on Thursday or Friday preceding the
Wednesday, June 14 discharge of the two employees. There is,
however, no record evidence to support Costa's accusation as
far as employee Rich is concerned. Although Vick testified
that Costa suggested the termination of these two employees
on that Thursday or Friday preceding the actual discharge of
Rich and Rice on June 14, Vick testified that he thought
about it over the weekend but did not act on the suggestion on
the following Monday because Supervisor Winstead was out
sick. Nevertheless, Vick made his decision to discharge these
employees without consulting Winstead, testifying that he
spoke only to Foreman Meeks about it.
In sum, the inconsistencies of the testimony of Meeks,
Vick, and Costa compel me to discredit their testimony with
respect to the discharge of Rich and Rice. Even absent such
inconsistencies I found the testimony of Rich, Rice and
Winstead more plausible and creditable. This conclusion is
fortified by the credited testimony of Lois King, Rich's sister,
who spoke to Meeks about the discharge on the next day.
Meeks told her that it was because Rich complained. He added
that it was not Rich's fault but the "other one's." He added
further that Rich was an excellent worker and had a very high
production but that "fussing and complaining had to be
stopped one way or the other."
Respondent argues correctly that an employer may termi-
nate the services of an employee for any reason or no reason so
long as the discharge is not motivated by the employee's union
or other concerted activity. It cites the fact that these
discharges took place even before the arrival of the Union's
organizer at Louisburg on July 10, 1967, and could not,
therefore, have been motivated by antiunion animus. The
argument, however, does not withstand close scrutiny I have
found that Foreman Meeks was well aware of the activities of
these two employees with respect to union organizational
matters as early as March 1967, when they told Meeks of the
need for a union at Louisburg. This was confirmed in May
when Meeks learned they had received the International Ladies
Garment Workers Union card and also by their conversation
with him concerning the rumor of Winstead's discharge which
they told him would not happen if they had a union. In all of
these instances Rich and Rice were acting in concert with
respect to matters affecting the terms and conditions of
employment at the plant. Respondent argues, however, that
the Union interest of Rich and Rice was known only by Meeks
and not by Vick who made the decision to discharge Rich and
Rice This overlooks the significant fact that before Vick made
his discharge decision he consulted Meeks Nor can I credit the
testimony of the Respondent's witnesses that the discharge
was motivated by these employees' deviation from prescribed
methods. The testimony of Supervisor Winstead establishes
that their deviations were not greater or more persistent than
other employees. Costa himself testified that their discharge
was motivated by their questioning of his methods and that
their deviation only reinforced the discharge decision. I also
note that the termination slip spoke, not of methods deviation
but "difference of opinion and disagreement." Finally, I note
the appreciable interval of time which elapsed between the
alleged deviation from prescribed methods and their terrru-
nation, that delay never having been convincingly explained.
Nor do I believe the discharge of Rich and Rice was actually
caused by their questioning the methods, as claimed by Costa.
I note that Costa testified he told these employees that the
methods were "always under review" and that he would check
the methods and rates and let them know. He did not suggest
that their questioning of methods was improper. Indeed, even
after Costa had allegedly told Vick to fire these employees, he
again spoke to Rich about the methods and said nothing to her
about the imminent discharge.
Instead, I deem it significant that the discharge took place
immediately following the appearance of Rich and Rice,
together with other employees, in the office of Plant Manager
Vick at which Rich and Rice brought up the subject of wage
rates. The fact that before discharging Rich and Rice, Vick
consulted with Meeks who was well aware of the union
sympathies of these two employees may explain why only
Rich and Rice were singled out of the group that met with
Vick for discharge that day. I therefore, conclude and find that
the discharge of Rich and Rice was motivated by their known
prounion sympathies and their participation in the group
meeting of June 14, at which Plant Manager Vick was asked
about wage rates and at which these two employees were quite
vocal. Such a meeting was protected concerted activity and
their discharge for engaging in it constituted a violation of
Section 8(a)(1) of the Act, even though all of the incidents
occurred prior to the advent of the Amalgamated Clothing
Workers of America at Louisburg. Waldensian Bakeries, Inc.,
132 NLRB 1137.
LOUISBURG SPORTSWEAR CO. 681
B. Surveillance
On July 20, Plant Manager Vick left the plant premises to
go into town. In so doing he had to head west to Bickett
Boulevard, turn left on Bickett Boulevard to Washington
Street, then continue west on Washington to get to Main
Street He testified, however, that a left turn on Bickett
Boulevard was difficult to negotiate. So, instead, he chose to
make a right turn on Bickett Boulevard and then turn left on
another street which ran into Main Street. On this day he
turned right on Bickett Boulevard but did not turn left onto
Justice Street which would take him to Main Street. Instead,
he went past Justice Street and turned left on Waddel Street
intending to continue on Waddell to where it joined Justice
Street and then continue on to Main Street. He testified that
he could not use Justice Street in its entirety because it was
torn up. The Lanford Motel, the only motel in Louisburg,
North Carolina, is located at the corner of Bickett Boulevard
and Waddell Street. Rachel Barnes, the union representative
engaged in organizing the Louisburg plant, was staying at the
Lanford Motel and occupied a room on the Waddell Street side
of the motel.
For several years employee Boone and employee Overton
operated a carpool between themselves , alternating the cars in
which they drove to work every day. The existence of this
carpool was known generally in the plant. On July 20, Overton
drove Boone to the motel and waited in the car while Boone
visited with Barnes.
Vick drove slowly past the motel on Waddell Street. As he
did so, employee Overton, sitting in her car which was parked
along the motel near Barnes' room, covered her face with a
newspaper. Vick rode on for a short distance, then turned
around and again rode past the motel and Overton's car. This
time he wrote down the license number of the car. He then
returned to the plant instead of going on into town which was
his original intention.
Vick testified that he turned around and came back past
Overton's parked car because the occupant was hiding from
him and he wanted to talk to her. He did not explain the
reason for taking down the license number of the car, however,
and when asked why he did not complete his trip to town but
returned to the plant instead, he testified that he wanted to
"think about somebody hiding." He also denied knowing that
Rachel Barnes was at the motel. He admitted however, that
with respect to the union organizing campaign, "there was
something going on some place."
The next day employee Duke saw Vick walking around the
parking lot of the plant looking at the license plates. Vick
admitted that he visits the parking lot to check its condition
but denied that he was there looking for license numbers when
Duke testified that he saw him. On the same day Costa
addressed the employees and told them that some of them
might be approached by a union organizer to sign a union card
and that some of them have already been so approached. I find
such language created the impression of surveillance in
violation of Section 8(a)(1).
Respondent argues that Vick's behavior was merely acci-
dental and inadvertent but I find Vick's explanation quite
incredible . With the Overton-Boone carpool in operation for
many years and its existence common knowledge at the plant,
it is hardly likely that Vick would fail to recognize Overton's
car parked at the motel even if he failed to recognize Overton
sitting in the car. Moreover, with the Lanford Motel the only
motel in the area, coupled with Vick's knowledge that
"something was going on some place," it took little for him to
conclude that the union organizer was at the motel, nor is it
likely that Vick would go considerably out of his way to get to
Main Street unless he really wanted to go by the Lanford
Motel. Having gone by, it is noteworthy that Vick did not
continue on his trip to Main Street but returned to the plant
for the odd reason of "wanting to think about somebody
hiding." It seems more likely that his return to the plant made
it possible for Costa to tell the employees on the following day
that he knew some of them had been approached by the union
organizer . Vick's final act of checking license numbers in the
parking lot of the plant caps this surveillance behavior and I do
not credit his testimony to the effect that he did not go out to
the parking lot to look for license numbers
As I have found that Vick recognized Overton's car parked
at the motel either when he observed it driving by or the next
day when he checked the license number and since by his own
admission he noticed the occupant of the car sitting at the
driver's seat, he must have realized that the other member of
that carpool , Boone, who would be the passenger, was
probably visiting at the motel where Vick must have realized
the union organizer was stationed. It is therefore apparent that
on July 20, Vick became aware of Boone's union interest.
Vick's surveillance, therefore, was not only a violation of
Section 8(a)(1) of the Act but furnished the basis for his
subsequent behavior to Boone, which will be discussed below
C. The Refusal to Hire Boone
Louise Boone started to work for the Company in 1962. In
1964 or 1965, she quit for a short time in order to work with
her husband in tobacco harvesting. Upon completion, she
returned to work. I have found above that Vick learned of her
union interests through his surveillance of the Lanford Motel
in July 1967. Shortly thereafter Boone asked Vick for a leave
of absence to permit her to work for 6 to 8 weeks in the
tobacco fields. When Vick refused to grant her leave she then
quit. According to Boone, Vick told her that the Company
would need some hemmers by the time she expected to return
and asked her to get in touch with him at that time.
On October 11, Boone called Vick and asked if there was
any work for hemmers. He replied that he had no such work at
that time and advised her to apply for unemployment
compensation. Despite Vick's statement, Boone knew that
another employee, Lois King, was about to quit because of
pregnancy and moreover had seen a company advertisement in
the local newspaper seeking "sewing machine operators" with
"no experience necessary ." Boone was an experienced hemmer
and the Company officials considered hemmers capable of
being sewing machine operators as well, although sewing
machine operators had to be trained in order to do hemming
work.
On November 1, Boone asked Vick why she had not been
recalled to work, to which Vick replied that he was not obliged
to rehire her. Boone then asked him if this was because of her
union activities to which Vick replied that "only she knew the
extent of her union activities." Vick then directed Boone to
the personnel clerk to take the three usual tests required of
applicants for employment . Boone took two of these three
tests and was told she had done well on those two. She was
unable to stay to do the third test which was a sewing test but
told Supervisor Griffin that she would return to take that test
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any time Vick wanted her to come back. Griffin promised to
tell Vick. Boone was never called back.
Although the Company had every right to insist upon
applicants taking all of the tests that the Company felt
necessary, it does not appear that Boone's failure to take the
sewing test was the reason for the refusal to rehire her. Vick
himself testified that he had no reservation about her ability,
thus disposing of the necessity for any sewing test. Indeed, a
number of inexperienced applicants were hired by the Com-
pany at about the same time as will be discussed below. The
only reason Vick gave for not rehiring Boone was that she had
quit twice and he was not interested in a "part-time worker."
This reasoning, however, does not square with his testimony
that the Company has never had any problem with employees
taking leaves of absence. Moreover, Vick failed to state that as
his reason when he refused to rehire Boone. Finally, and
perhaps most importantly, the Company's record of hires and
quits during this period of time suggests strongly that part-time
workers were not as unacceptable as Vick's testimony would
lead one to believe. Thus, in the hemming department,
company records shown in General Counsel's Exhibit 35,
received in evidence, indicate that one employee was added to
that department in August 1967, without any hemming
experience; two were added in September, only one of which
was experienced, four were added in October, only three of
which were experienced, six were added in November, none of
which was experienced in hemming, and three were added in
December without experience. During the same months, four
hemmers quit and one was transferred to press and fold. Other
quits and transfers occurred in January, February and March
1968. Surely Boone, even as a "part-time worker," would have
been preferable to those hired without any previous experience
and who quit or had to be transferred out even before they
were trained to do the job. Having found that Vick's refusal to
rehire Boone was based upon a pretext of part-time work, it is
reasonable to assume that the real motive for his refusal to
did represent a majority of its employees. On October 12, an
election was conducted at Respondent's plant by the Board.
One hundred and twenty one employees voted against the
Union and 39 employees voted for the Union. By timely
objections to conduct affecting the results of the election, the
Union seeks to set aside the election. In addition the Union
claims that the Respondent unlawfully refused recognition
despite its majority status on July 27, in that the Respondent
committed acts of coercion, intimidation, and interference to
destroy the majority support the Union had created.
Of the 104 union cards solicited and obtained through the
efforts of Barnes and employees of the Respondent, 102 were
offered and received in evidence. These cards state
Date of Signing
I,
(Print your full name here)
now employed by
(Name of Company)
(Location)
have voluntarily accepted membership in the A-
MALGAMATED CLOTHING WORKERS OF AMER-
ICA (AFL-CIO) and designate said Union as my
collective bargaining agent in all matters pertaining to
wages, hours and other conditions of employment. I
hereby further subscribe to the dues deduction
provisions printed on the reverse side of this card.
Signed
rehire her was one that the Respondent desired to conceal and (Operation and Department)
that such a motive might be an illegal one. Shattuck Denn
Mining Corporation v N.L.R.B., 362 F.2d 466 (C.A. 9). In this
instance, having regard for the fact that Vick was well aware of
Boone's interest in the Union and considering the contempo-
raneous conduct of the Respondent aimed to discourage union
activities as will be discussed below, I conclude that Boone was
not hired because of her union activities in violation of Section
8(a)(3) of the Act.
D. The Refusal to Bargain
1. The Union's majority
The Union's organizational campaign at the Louisburg plant
of the Respondent commenced on July 10, 1967, when Rachel
Barnes, a union representative, moved into the Lanford Motel
in Louisburg. By July 26, Miss Barnes had accumulated, with
the help of employees, at least 104 signed applications for
membership in the Union. On that day she sent a letter to the
Respondent requesting recognition and, on the same day, the
Union filed a petition with the Board asking for an election
among the production and maintenance employees of Respon-
dent. Respondent received the request for recognition on July
27. On that date there were 180 employees in the unit for
which recognition was sought. On August 3, Respondent
refused the request for recognition doubting that the Union
(Phone No.) (Signer's Home Address)
On the reverse side of the card is additional language
authorizing the employer to deduct union dues. Fifty seven of
the 102 union cards received in evidence were authenticated
by persons other than the signers thereof. Counsel for the
Respondent objected to the reception of evidence of such
cards "especially where there is no showing of unavailability of
the purported signers." This objection was overruled. Sandy's
Stores, Inc., 163 NLRB No. 95; Don the Beachcomber, 163
NLRB No 36.
In addition Respondent questions the authenticity of a
number of cards which were signed by persons other than the
purported signatory. Thus, the card of Ethel Gupton was
signed by employee Rochelle Southall who testified she did so
at Gupton's request. Gupton did not testify and I credit the
testimony of Southall.' Counsel for the Respondent however,
argues that: "letting proof of agency come in by the testimony
of the agent is violative of the rules of evidence." Counsel fails
to cite any authority for this statement. Indeed, all citations
are to the contrary. See 3 C.J.S. Agency § 322 and 3 Am. Jur.
2d Agency § 353. See also Shapiro Packing Company, Inc,
155 NLRB 777, 785, and Peterson Brothers, Inc., 144 NLRB
679. Similarly, the card of Malcolm Finch was signed by his
wife Adal Finch, who testified that her husband authorized her
LOUISBURG SPORTSWEAR CO. 683
to sign his name. I credit her testimony Mr. Finch not having
testified. Employee Hodge testified that she signed the names
of employees Harris and Collins to union cards at their request
Neither Harris nor Collins testified and I credit the testimony
of employee Hodge to that effect.
Employee Baker testified that, at the request of Betty
Strickland, she signed a union card for Betty and at the request
of employee Coppage signed a card for her as well. Coppage
did not testify to contradict employee Baker and I credit
Baker's testimony. Strickland, however, did testify that she did
not authorize employee Baker to sign a card for her,
contradicting the testimony of Baker. Strickland admitted,
however, that employee Coppage told her Baker had signed for
her Nevertheless, Strickland never talked to Baker about it or
did anything about it, behavior which is hardly consistent with
her alleged failure to authorize Baker signing her name I note,
moreover, that Baker is no longer employed by the Respon-
dent. Strickland, however, was still in the employ of the
Respondent when she testified and testified in the presence of
her employer's counsel as well as its District Manager Costa, a
situation that could have affected the reliability of her
testimony, particularly after the Respondent's antiunion cam-
paign which will be discussed below. I credit the testimony of
Baker and conclude that Strickland authorized Baker signing
her name to the union card.
Respondent contends that representations made to the
signers of a number of cards and irregularities in the obtaining
of such signatures invalidate them with the result that the
General Counsel has failed to sustain his burden of proof that
the Union had a valid majority as of July 27, 1967. Cards
signed by employees to whom representations were timely
made by union solicitors before they signed the cards that the
cards would be used only for the purpose of an election and
not for any other purpose would be invalid under the Board's
holding in Cumberland Shoe Corporation, 144 NLRB 1268,
enfd. 351 F.2d 917 (C.A. 6), and Gotham Shoe Manufacturing
Co., 149 NLRB 862, 873-874, enfd. 359 F.2d 684 (C.A. 2).
However, cards which unequivocally authorized a labor organi-
zation to act as a collective-bargaining agent of the signers
must be treated as valid bargaining authorizations in the
absence of showing of coercion in their procurement or
representations that despite the purpose clearly and expressly
stated on the cards themselves, the cards would be used only
for a different more limited purpose. Aero Corporation, 149
NLRB 1283, 1290. Absent any misrepresentations by the
Union's solicitors, it is well settled that an employee's
subjective reasons for signing a card or his conception of the
meaning of the card have no bearing on the validity of the
card. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 743
(C.A.D C.), N.L.R.B. v. Greenfield Components Corporation,
317 F.2d 85, 89 (C.A. 1). In this case there can be no
argument on the clarity of the card which the employees
signed and which contained no mention of an election.
Moreover, I have satisfied myself that the employees who
testified in this proceeding had no difficulty in reading the
card or in understanding it. Under those circumstances I find
that the signers of these cards understood that they were
designating the Union as bargaining agent. "Where an em-
ployee has signed a card which plainly designates the union as
bargaining agent, the employer can prevail only with clear
evidence of misrepresentation." N.L.R.B. v. Hamburg Shirt
Corporation, 371 F.2d 740, 745 (C.A.D.C.).
A card, making no mention of an election, but only
authorizing the Union to act as bargaining representative, is
a clear and explicit affirmation of the fact that the card can
be used to secure recognition without an election .... To
invalidate authorization cards relating solely to union
representation, it is necessary that there be affirmative
representation that the sole and only purpose of the card is
to secure an election. Dayco Corporation v. N.L.R.B., 382
F.2d 577, 582 (C.A 6).
With these principles in mind we turn next to an exam-
mation of the alleged misrepresentations which Respondent
argues were made to certain employees.
a. Misrepresentations as to
purpose of card
Employee Leonard testified that she solicited and obtained
the signature of employee Murphy on a union card, telling her
that "if she wanted to join the Union to sign the card," and ,
denied any mention of an election. She also testified that shc.
procured the signature of employee Lewis in the same manner.
Lewis testified that she had no discussion with Leonard before
signing the card and exhibited no inability to understand its
language. Employee Murphy testified that Leonard told her
that the card was for an election. She was unable, however, to
recall any more of that conversation nor of the remarks made
by others in connection with signing union cards. I was not
impressed with her recall ability and do not credit her
testimony regarding the language used by Leonard in procuring
her signature. Instead, I credit the testimony of Leonard and
find no misrepresentation in procuring Murphy's signature.
Employee Southall, whom Ethel Gupton authorized to sign
a union card for her, as noted above, also procured the
signatures of employees Ernestine Wilkins and Pauline Townes.
She testified that she gave them cards, asked them to read
them on both sides and, if they were interested, to sign them.
She also testified that Union Representative Barnes had
solicited her signature to a union card telling her that by
signing she would be accepting membership in the Union but
nothing was mentioned about an election either by Barnes to
Southall or Southall to Wilkins and Townes. In a statement
given earlier to a Board representative she quoted Barnes as
saying that if the Company did not recognize the Union there
would be an election. At no point, however, does it appear
that Barnes suggested or intimated that the signing of the card
was for the purpose, sole or otherwise, of having an election.
Indeed, the purpose was stated specifically to be that of
accepting membership in the Union. Employee Wilkins tes-
tified that when Southall solicited her signature to a union
card she was told it was only to have an election. She later
amended her testimony stating that Southall told her "they
wanted to see if they could get an election." She further
testified that she did not read the card although she exhibited
no difficulty in so doing at the hearing. She also testified that
she first printed her name at the top of the card and then, at
Southall's request, signed her name at the bottom of the card,
that she asked Southall no questions about it because she was
busy and had no time to read the card. Nevertheless, she made
no attempt to retain the card so that she could read it later. On
balance I found the testimony of Southall more plausible and
convincing than that of Wilkins and credit it.
Respondent questions the validity of the card signed by
employee Moody, arguing that the employee "apparently did
not read the card and signed it because she thought it was to
obtain an election and there would be a vote on the Union
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question ." Her testimony , however, is not that unequivocal.
She testified "I thought I [read the card] but evidently not."
She further testified that she had no idea at all as to where she
could have gotten the notion that she was signing only for an
election. This furnishes no basis for invalidating her card for
misrepresentation.
The Respondent also attacks the card of employee Melba
Fuller. Employee Fuller did testify that her understanding was
that the card was for a union and that there would be an
election in order to get the Union. Later in response to a
leading question from counsel for the Respondent , "did they
tell you that you needed so many cards to get an election?"
she answered "yes, sir." Still later she refined her answer
saying, "after a certain number of cards were signed they were
to be turned over to the Union , and there would probably be
an election later ." (Emphasis supplied) Although Fuller was
not sure whether she had read the card before she signed it, she
testified that she read the card after she had signed it and
before handing it to the solicitor . She further testified that she
was told by the solicitor that the card was "in order to get a
union." I find insufficient evidence of any substantial or
meaningful misrepresentations - by the solicitor , particularly
where, if those representations differed materially from the
language on the card which she read, she could have refused to
deliver the card to the solicitor but failed to do so.
Employee Nancy Harris testified that the person who
solicited her signature to the union card told her "an election
could be necessary ." Such language does not suggest that the
signing of the card has an election as its objective.
Employee Lucille Finch testified that after she signed the
card she regretted having signed it and that she did not know
what she was doing when she signed the card . She admitted,
however, reading the card before she signed it and knowing
that she was signing her name for an application for member-
ship in the Union . There is no basis for invalidating this card.
Ruth Kearney testified to signing a union card after reading
it. She further testified that she was told the card was to help
get a vote and that she understood there would be a vote.
Upon further questioning, however, she stated that she did not
know anything about an election when she signed the card.
She remembered , however, that the card was an application for
membership in the Union . Later when called to testify on
behalf of the Respondent , Kearney stated that the solicitor
told her "if they wanted the Union out there the people could
vote on it ." She also stated that the solicitor said nothing to
her about an election when she signed the card. As opposed to
this sometimes inconsistent and contradictory testimony re-
garding what the solicitor told her , we have her positive
testimony of having read the card and having understood that
she was accepting membership . Under those circumstances it
seems clear to me that her card must be treated as a valid
designation of the Union as her bargaining agent.
Respondent argues that the union card of Adal Finch
should not be deemed a valid designation because she
"guessed" she was told that the Union needed a certain
,percentage to get an election . The record shows the following
colloquy between counsel for the Respondent and Mrs. Finch
Q. However , is it not true that when you signed your
card you were told the Union needed a certain percentage
of the cards in order to get a vote, needed a certain
percentage of signatures in order to get a vote?
A. At the time I didn't know enough about it.
Q. I know you didn't know, but weren 't you told?
Think carefully ; that the Union needed a certain percentage
of the cards of the employees in the plant, signed cards, in
order to get an election?
A. I guess so , I don't remember.
Q. Don't you really remember that now?
A. No, Sir I don't.
This testimony is certainly insufficient to establish any
misrepresentation of the purpose of the card by anyone or for
that matter credible evidence of any misunderstanding on the
part of the signatory.
Mahlon Horton's card is challenged by the Respondent.
Horton testified that Foster solicited his signature to a union
card after telling him that the card was for the Union to get
enough cards for the Union to call for an election . He further
stated that he did not read the card before signing it but had
the card for 10 minutes while he listened to Foster before
signing it . Horton would not deny, however , that Foster told
him the Union could possibly come in there without an
election. Horton stated he wanted his card back because he
wanted to find out more about it and then finally stated that
he might lose his job by having signed the card. Foster, on the
other hand, testified that he said nothing to Horton about an
election not knowing at that time whether they could have an
election. Horton's testimony struck me as being evasive. I
cannot credit it and credit the testimony of Foster which
furnishes no basis for invalidating Horton's card.
Foster also solicited the signature of S.E. Gupton, Jr.,
whose wife is a supervisor for the Respondent . According to
Gupton, Foster told him that the purpose of signing a card was
to see if the Union would get a right to have an election.
Gupton admitted that he had the card in his possession for
several minutes before signing it. He also admitted having
another card or two in his apron for 2 or 3 days. Nevertheless,
he denied noticing the largest words on the Union card which
stated the signer accepts membership in the Union. Finally,
Gupton testified that several days after signing the card he
wanted it back because he had found out that the Union could
come in without an election . Nevertheless , he made no demand
for the return of his card . Here too, I credit the testimony of
Foster rather than that of Gupton finding the latter's
testimony unpersuasive . In the absence of any misrepre-
sentation , therefore, the card is valid.
Union Representative Barnes solicited and obtained the
signatures of 29 employees on union cards . Of these, Respon-
dent attacks the validity of 12, which will be discussed below.
Barnes testified that she told the solicitees.
... we would have to get a majority of the cards signed, and
we would , after we had gotten the majority of the cards
signed , that we would notify the Company that we
represented a majority of the people , and I did explain to
some of them in that time that the Company had a right to
say they didn't believe we represented a majority of the
people, and could force us into an election , but that was the
only time I ever mentioned an election to the workers in
soliciting cards. I told them that I wanted them to read the
card and to make sure that they knew they were voluntarily
accepting membership in the Amalgamated Clothing
Workers.
Employee Gilliam's card is argued to be invalid by the
Respondent . Gilliam testified that Barnes asked her to sign the
card to help them to get an election in. She admitted, however,
that she read the card before she signed it and realized that she
was "signing over my rights to the Union to bargain."
LOUISBURG SPORTSWEAR CO. 685
Respondent argues that Gilliam's testimony indicates that
"none of this would come about until there had been a vote on
the question" but the record does not support that interpre-
tation of her testimony.
Employee Davis testified that Barnes told her the card was
for the purpose of obtaining higher wages and better working
conditions and that if a certain percentage would sign that
there would be an election. She denied reading the card before
signing it, but the inconsistency of some of her answers leaves
the rest of her testimony in some doubt. Thus, for example,
she testified that she looked at the card for a long time before
signing it and, when the question was repeated immediately
thereafter, she denied looking at it for a long time. Similarly,
she testified that she thought the only purpose of the card was
to get an election, yet almost in the same breath, testified that
Barnes told her she was there to get Davis to join the Union.
Davis impressed me as being intelligent and sufficiently
schooled to read the card and understand it easily I find it
more likely that Davis had an opportunity to read the card, was
able to do so quickly and understood the purpose of the card
to be acceptance of membership in the Union, I do not credit
her version of Barnes' conversation with respect to an election.
Respondent also contests the validity of the card bearing
the signature of employee Lena Green. Green had signed a
union card before Barnes visited her home, but this card was
returned to Green because the signature was printed. There-
after Barnes came to Green's home and solicited her to sign
another card. Green took the card, left the room and returned
with the card signed which she gave to Barnes. Green testified
that she did not wish to sign the card and to get rid of Barnes
she had her daughter sign the card in her name while both she
and her daughter were out of Barnes' sight. Green was not
unaware of the purport of the signature to the Union card
inasmuch as she admitted reading the front of the card before
signing it. Nevertheless, Respondent attacks the validity of this
card arguing that Green's behavior disproves any intention by
her to designate the Union as the bargaining representative.
This, however, is but another example of a subjective reason
for an employee's signing or not signing a card and has no
bearing on the validity of the card which is not invalidated by
such subjective motivations.
Marie Horton testified that Barnes solicited her signature to
a union card telling her that it was only to have an election and
that although she did not want the Union she signed the card
to get rid of Barnes. She claimed that she did not read the card
although she had no difficulty reading it at the hearing.
Despite vigorous questioning by all counsel and the Trial
Examiner as well, she persisted in this testimony. We are
reduced, therefore, to a bald credibility issue as between
employee Horton and Union Representative Barnes, both of
whom were equally firm in their testimony. In this instance,
however, I am inclined to credit the testimony of Marie
Horton and invalidate her card as a result.
Jonell Horton signed a card at the request of Barnes who,
according to Jonell, said that the card was for an election.
Jonell admitted, however, that she read the card before she
signed it and saw no inconsistency between what Barnes told
her and what was written on the card. If so, Jonell must be
deemed to have known that she was signing a card for
membership in the Union. This conclusion is fortified by
Jonell's testimony to the effect that signing the card consti-
tuted the election. I find insufficient basis upon which to
invalidate her card.
Viola Fuller testified that when Barnes solicited her
signature to a union card she was told that her signature was
wanted so that they could hold an election, "when they got a
certain percentage they would hold an election." She claimed
that she did not read the card and did not understand what it
was all about. She further denied that she knew what she was
signing but "mainly signed the card to get rid of her." She had
never known Barnes before that time and had never seen her
before. I find this version of her meeting and action vis-a-vis
Barnes' request entirely incredible for it would indicate that
Fuller readily signed a document which she did not under-
stand, which she did not read, and for a person whom she did
not know. I do not credit her testimony and find insufficient
basis to invalidate her card.
The Evans sisters, Betty and Carolyn, were solicited by
Barnes simultaneously. Both testified that they did not read
the card. According to Betty, Barnes told her that if she signed
the card there would be an election. Although she signed the
card, she denied being asked to read it as well as noticing any
of the wording on the card. Carolyn testified that she did not
read the card because she was sleepy. The testimony of neither
girl impressed me as being credible particularly in their
repeated inability to recall much of their conversation with
Barnes and nothing of contemporaneous events at the plant
except the statement of Barnes to the effect that there would
be an election. I do not credit their testimony. Instead, I find
that these girls had the opportunity to read the card placed
before them by Barnes, the ability to read and understand it
easily, and must be deemed to have comprehended the effect
of their signatures to the card. I find no reason to invalidate
their cards.
Both Nancy Edwards and Ruby Shearin testified that they
signed the Union card at Barnes ' request after Barnes had told
them that an election would be held if enough cards were
signed . Both women, however, admitted reading the card.
Edwards could remember nothing that Barnes had told her
which was inconsistent with the card. Shearin, who is now
personnel supervisor for the Respondent, was certainly capable
of understanding what she read and must be deemed to have
known she was signing for union membership despite anything
told her. I do not credit the testimony of either employee that
Barnes told them there would be an election if enough cards
were signed. If, indeed, Barnes had such a statement, both
employees would have questioned her about the inconsistency
of such a statement with the language of the card but neither
raised any question with her. I conclude that their union cards
are valid.
Dorothy Pearce signed a union card at Barnes' request and
testified that she was told it was for an election. She claimed
not to have read the lines on the front of the card stating that
she was accepting membership but did read all of the back of
the card which contains much more writing than the front.
Upon closer questioning she could not remember what lines
she had read on the front of the card because she was in a
"very highly emotional condition" at that time. She remem-
bered, however, that by signing the card she would be a
member of the Union if the Union won the election. Moreover,
she remembered Barnes saying that Barnes had gotten several
other people to join the Union. It seems clear to me that
Pearce realized both the purpose of Barnes' visit and the
solicitation of the card signing to be for membership in the
Union and that regardless of Pearce's alleged emotional
condition she must have comprehended the language on the
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
front of the card which committed her to membership in the
Union. I find no misrepresentation in obtaining her signature
to the card and consider it valid.
Respondent also objects to the card of Placid Elaine
Stallings who testified that Barnes told her she would have the
right to vote in the election. On cross-examination, however,
Stallings admitted reading the card and remembering the part
which acknowledged that she would be a member if she signed
it. This furnishes no basis for invalidating her card.
Matilda Winn was solicited by employee Patterson to sign a
union card. According to Winn, Patterson told her that if
enough cards were signed they could get an election to see
whether the Union could come in or not. She admitted,
however, that she had read the card and understood it and that
there was nothing inconsistent between the card and what
Patterson had told her. She also admitted that Patterson told
her she wanted her to join and that she was attempting to get
others to join the Union. It seems clear to me that under all
these circumstances employee Winn must be deemed to have
known she was accepting membership and joining the Union
by signing the card when Patterson solicited her signature, and,
it is, therefore, a valid designation.
Respondent attacks the validity of the Union card signed by
employee Clarence Finch who testified that his signature was
solicited by both Conne Thorne and Billy Foster who told him
there would be an election. After getting a card from Thorne
he asked for another card for his wife and returned them,
executed, to Thorne. Foster made no mention of soliciting the
signature of Finch and Thorne testified that she solicited
Finch's signature telling him only that he should read the card
for any information. I do not credit Finch's testimony because
of certain irregularities and inconsistencies. Thus, for example,
he claimed not to have read the card. An examination of it,
however, discloses extraordinary care and particularity in the
way Finch filled it out, noting, for example, the location of
the plant as not merely Louisburg but North Louisburg and
completing every blank on the face of the card. Indeed, he
claimed to be "very specific" and "very careful" about
everything he fills out. I find it incredible that such a person
would sign a paper without looking at it. Finch would not
deny that Thorne told him the card was a union membership
application, nor would he deny that Thorne had told him to
read the card and get all the information from it but only that
he did not remember her saying it. I conclude that Finch's card
is a valid designation.
William Foster solicited William Lovm, Jr., to sign a union
card. According to Lovin, Foster told him that signing the card
would show that the employees wanted the Union to come in
and if the Union had a majority for the election it would be
"passed." Foster denied mentioning an election to Lovin. In
any event, Lovin admitted reading the card and understanding
that if the Union got in he would be a member. It seems clear
from all of the testimony that Lovin knew that he was signing
not merely for an election but for membership in the Union
and his card is a valid designation.
Louise Boone solicited the Union cards of eight employees.
Two of them, Nadine Redmond and Ruth Dement, testified on
behalf of the Respondent who contests the validity of their
cards. Redmond testified that she was told by Barnes at a
meeting that if more than 50 percent of the workers signed
there would be an election held but she could not remember
whether that meeting took place before or after she signed the
Union card. She admitted reading the card before she signed it
and attending meetings of the Union's organizing committee,
especially one that went- to Vick's office on August 17.
Dement testified that Boone said:
. if I sign the card, first, if enough signed it, the Union
would come in, I mean, not the Union come in, but we
would have an election, and then I could vote whether I
wanted to belong to it or not.
Despite her admission that she wanted to be very careful about
what she was doing, she denied reading the card. Moreover,
when she found out that the card was more than a request for
an election she took no steps to get her card back. Boone, who
testified she said nothing about an election to either of them,
also stated that she herself knew nothing of an election when
she solicited card signers. On balance, I credit Boone's
testimony and find no misrepresentation in the solicitation of
these cards.
b. Misrepresentation as to number of signers
Respondent cites the testimony of some of the card signers
that they were told many or all had signed and cites these
alleged misrepresentations as a basis for invalidation of the
cards.
Respondent argues for the rejection of the union card
signed by employee Charlie Trader because one solicitor
allegedly told Trader that all the men in the cutting depart-
ment had signed and another solicitor had told him that
everyone in the plant had signed. The argument of counsel,
however, is not completely supported by the record Thus,
Trader testified with respect to the allegation that everyone in
the plant had signed:
She told me she had some cards about the Union, she said
she thought everybody had signed the cards, she asked
would I like to sign one. [Emphasis supplied.]
When the Trial Examiner asked "she thought everyone else
had'?", Trader answered "Is going to sign."
Trader also testified that the various solicitors asked him to
sign a union card without mentioning anything about benefits
to be derived. The last solicitor, however, who told him that all
the men in the cutting department had signed, did ask him to
sign for better job opportunities and an increase in pay.
The validity of Trader's card turns upon whether substantial
misrepresentations were made to him in order to get him to
sign the Union card. Respondent cites S.E. Nichols Company,
156 NLRB 1201, 1211, where a card was invalidated because
the signer had been told that 75 percent of the employees had
signed up, which was untrue. In that case, however, the Trial
Examiner makes it clear that the misrepresentation alone was
insufficient
In view of her reliance in signing her card upon the
solicitor's misrepresentation as to the percentage of em-
ployees who had signed the cards, I find that it was
invalidated ....
Here there is considerable doubt that Trader signed relying
upon any misrepresentation. The only record evidence indi-
cating such reliance is in a statement given by Trader to
Respondent's representative wherein Trader is quoted as
saying
People who approached me told me everyone else had
signed a card, so I signed one.
In his testimony, however, Trader stated that this was told
after he had signed the card. Still later Trader testified that the
ones who had told him that everyone in the plant had signed
LOUISBURG SPORTSWEAR CO. 687
did so before he signed the card but that he signed the card for
the solicitor who told him that all the men in the cutting
department had signed cards and that signing the card meant
better job opportunities and pay increases With such vacilla-
tion on the part of Trader, I am unable to conclude that he
signed a union card relying upon any misrepresentation In any
event,
Such statements are harmless salestalk or puffing which do
not operate to overcome the effect of ... [the employees]
overt act in signing. G & A Truck Line, Inc., 168 NLRB No.
106.
See also I.T.T. Semi-Conductors, Inc., 165 NLRB No. 98,
where the Board held a false representation of an existing
majority would void a designation if that designation would
not have been subscribed but for the representation or the
signer was put in fear of majority reprisal, neither of which
conditions are shown to exist with respect to Trader's card.
c. Conclusions as to union majority
In summary, I find that the Union obtained the signatures
of 102 employees in the appropriate unit by July 26, 1967,
and sent its demand for recognition to the Respondent who
received it on July 27. All of these authorizations, with the
exception of the one signed by employee Marie Horton, were
valid and since the umt consisted of 180 employees at the
time, the Union had a clear majority of such employees
Respondent mounts a special attack on the credibility of
Union Representative Barnes, citing her testimony at one point
to the effect that she did not tell the employee the card was
just to get an election or would result in election, yet, at
another point, admitting that she did discuss an election with
one of the employees. I see no inconsistency in this testimony.
It is one thing to discuss an election and it's quite another
thing to tell a prospective card signer that the purpose of the
card is to secure an election. Indeed, Barnes specifically denied
telling any employee that the purpose of the card was to
secure an election.
Finally, Respondent's attack on some of the cards offered
to prove the Union's majority status is founded on the
testimony of some signers, presently employed by the Respon-
dent, who exhibited a singular loss of memory except as
respects the solicitor's mention of an election The signing
occurred in July 1967, the election in October 1967, and the
hearing in March 1968. Between July and October 1967, the
Respondent waged an intensive anti-union campaign, con-
sisting of a variety of unfair labor practices as will be discussed
later. Under such circumstances the language of the court in
Preston Products Co., 66 LRRM 2548, is noteworthy:
Moreover, we think the Board was justified here in relying
upon that rule in accepting the employees' signatures on the
unambiguous cards despite the inconclusive testimony of a
few as to the events surrounding the union's solicitation of
the cards. Neither the Trial Examiner nor the Board found
any credited evidence of gross misrepresentation, nor does
the record reveal such evidence to us. Rather, we have the
classic case of employees testifying under the eye of the
company officials about events which occurred almost a
year before and prior to the activities which were subse-
quently found to constitute unfair labor practices. It is
certainly conceivable that those same threats and benefits
which shook an employee's original support for the union
also altered that employee's memory as to events which
occurred before the presentation of such threats and
benefits. By the time of the hearing the employees may well
have changed their mind with respect to union affiliation,
but the crucial question in a refusal to bargain case is
whether the union had the support of a majority of the
employees in an appropriate bargaining unit at the time the
request to bargain was made, and not whether that support
remains intact some ten months later.
Furthermore, any misunderstanding to the effect that these
cards were for an election was dispelled when Manager Costa
told all the employees in a speech he gave over the public
address system on July 21, that the Union could try to use
these cards to establish their right to represent the employees
without ever going to a vote.
2. The good-faith doubt
Where a union represents a majority of employees in an
appropriate unit, an employer violates Section 8(a)(5) and (1)
of the Act if it declines to recognize and bargain with it where
its refusal is not based on good faith doubt of the Union
majority but is motivated by a desire to gain time in which to
undermine the Union's support. Joy Silk Mills Inc. v. N.L.R.B.,
supra. We turn, therefore, to an examination of the events
following the Union's attainment of a majority of the
employees in the appropriate unit to determine whether the
Respondent's refusal to recognize the Union on August 3,
1967, was based upon a good faith doubt or was designed to
dissipate the Union's majority by unfair labor practices
Reference has already been made to the discharge of
employees Rice and Rich which occurred on June 14, and
which I have found to be in violation of Section 8(a)(3) and
(1) of the Act. Similarly, I have found that the activities of
Vick at the Lanford Motel on July 20, constituted surveillance
of the union activities of the employees in contravention of
Section 8(a)(1) of the Act. Both of these events demonstrated,
moreover, the antiunion animus of the Respondent as the
critical period between the filling of the petition for an
election and the election began.
In this same connection note must be taken of a speech
given by Costa to the employees of the Respondent over the
public address system on July 21. In it Costa said:
We have asked that you all stop work for a few minutes so
that I can talk to you briefly about a matter of serious
importance to you.
In order that I may be entirely clear in what I say to you
and in in order that there may be no doubt or misunder-
standing as to what I do say, I am going to refer to some
notes which I have here before me.
Since efforts to bring the Union into this plant are now
going on, a good many questions are arising with respect to
the following matters ....
1. This matter is, of course one of concern to the
Company. It is also, however, a matter of serious impor-
tance to you-important to your whole future here at this
plant.
2. It is our sincere belief that if the Union were to get in
here it would not work to your benefit, but in the long run,
would itself operate to your serious harm.
Before long you may be approached by a union organizer,
or by someone acting in behalf of the union, for the
purpose of getting you to sign a union card. Some of you
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have already been so approached. If and when such a card is
put in front of you, think carefullyI
Sometimes nowadays unions try to have the labor board
certify them as bargaining agents for employees without the
employees ever having any opportunity to vote on a matter
at all . . . In such a situation, as you can see, the union's
promise and assurance that the signed cards would never be
made public, turns out to be completely false.
Another favorite device that union organizers use is to tell
you that you are one of the few who hasn't yet signed and
that practically everybody, except you, has signed This is a
false-hood which they tell each person in order to deceive
him into believing that the others are already on the side of
the union.
* * * * *
Now what your action about all of this will be is, of course,
a matter for each of you to decide in your own minds. Our
sincere belief is, however, that the union and the union
cards are the pathway to trouble- and serious trouble.
It is important to note that on July 21, only 1 day after
Vick's surveillance at the Lanford Motel, Costa knew that
some of the employees had already been approached to sign a
union card. It is also important to note that Costa made it
clear to the employees that the Union might attempt to be
certified without an election, thus destroying any misappre-
hensions or misunderstandings on the part of some of the
employees as to the purpose of the cards. Finally, the
employees were put on notice not to believe any represen-
tations that practically everybody had signed a union card.
Moreover, note is taken of Costa's remarks concerning his
belief that the advent of the Union at the plant would
"operate to [the employees'] serious harm." Ordinarily such a
statement could be innocent and protected. The same can be
said of his reference to the Union and union cards being the
"pathway to serious trouble." In the context of other unfair
labor practices, however, such statements constitute a violation
of the Act. Greensboro Hosiery Mills, Inc., 162 NLRB No
108, Moms & Associates 138 NLRB 1160, White Oak Acres,
Inc., 134 NLRB 1145, Whiteville Manufacturing Company and
Blue Jeans Corp., 170 NLRB No. 149, Block-Southland
Sportswear, Inc., 170 NLRB No. 101. We turn, therefore, to
examine the alleged commission of other unfair labor practices
on the part of the Respondent.
E. Subsequent Unfair Labor Practices
Undermining Union Support
1. The wage increase
On July 24, Vick made a short speech over the public
address system announcing a wage increase . This was the first
general wage increase ever given by the Respondent to its
employees other than increases required under the minimum
wage law . According to Costa, the wage increase was first
considered in March and the final decision to grant it was made
about July 1. According to him , the final decision to make a
raise was "largely based on operating efficiencies, performance
in the plant generally." Counsel for the Respondent then asked
him:
Q. Do you have a budget?
A. Yes, when we price our shirts I always submit factors
for various catagories , such as overhead directly or indi-
rectly, work supplies, and perhaps a contingency.
Q. Was there a contingency in your budget dunng 19679
A. Yes, there was.
Q. Did it include this wage raise.
A. Yes.
I cannot credit the testimony of Costa which suggests that
the wage increase decision was finalized early in July. I note,
for example, that the budget provision testified to by Costa
was in response to a leading question from his counsel.
Moreover, when Vick called a meeting of the shipping
department on or about July 16, and was asked by employee
Thorne what the top pay on her job was, he answered that it
was "$1.55 until the minumum wages go up." There was no
mention of a pending wage increase, which, if it had been
finally decided upon, would presumably have been mentioned
or suggested by Vick at that time. Again, no mention of the
Respondent's consideration of a wage increase was made by
Vick when confronted by the employees in the fold and press
department and asked by Rice specifically about the unfairness
of the wage rates. On the contrary, I note that the wage
increase by Vick was made only 4 days after his surveillance of
Barnes at the Lanford Motel and only 3 days after Costa had
warned the employees of the dangers of unionization.
In explanation for delaying the announcement of the wage
increase until July 24, after it had been allegedly finally
decided upon around July 1, Costa stated that it took that
long to work it out, to analyze the statements that they had,
and to prepare the statement. No further explanation was
made as to why a mere announcement of a wage increase
would take 3 weeks to prepare after it had been finally decided
upon. I find his attempted explanation insufficient and
conclude that the announcement was made on July 24 because
of the Respondent's knowledge of the Union organizational
campaign which was under way. N.L.R.B. v. Exchange Parts
Co., 375 U.S. 405.
The wage increase was put into effect on September 5,
dunng the pendency of the election petition. Costa explained
that the increase was delayed until that date because "Septem-
'ber 5 represents the beginning of the new payroll period and
the time intervening, I felt, was necessary to announce it
properly, run the announcement in the paper properly and
communicate 'with our people so that they would understand
fully both the amount and the manner in which we were going
to implement the increase." He added-
We simply added 10 cents an hour to all hourly rated
workers' hourly rates and we applied a 6.3 percent factor to
all piecework earnings and showed this amount in the
adjustment column on their checks.
Here, too, the bald assertion of Costa furnishes insufficient
basis for explaining the action taken. It does not appear that it
should take 6 weeks to do the simple act, particularly when
the amount of the increase was going to be shown as a separate
item and not to be lumped with the employee's regular pay.
Instead, I conclude that both the promise of a wage increase
that was made on July 24, and the granting of the wage
increase that was effective September 5, were deliberately
aimed to discourage unionization in violation of Section
8(a)(1) of the Act.
The danger inherent in well-timed increases in benefits is
the suggestion of a fist inside the velvet glove. Employees
are not likely to miss the inference that the source of
benefits now conferred is also the source from which future
benefits must flow and which may dry up if it is not
obliged. N.L.R.B. v. Exchange Parts Co., supra.
LOUISBURG SPORTSWEAR CO. 689
2. The Costa meetings of July
Costa held a series of meetings on July 26 and 27, at which
time he spoke to all employees of the plant in groups of
approximately 25. At these meetings he reviewed the fringe
benefits of the employees such as the paid holidays, paid
vacations and the hospitalization program. He then explained
the wage increase that had been announced several days
before He also announced a liberalization of the grievance
procedure by stating:
I outlined an open-door policy for discussions of problems
if they arose and told them it would be highly desirable to
take them up in this order; first with their immediate
supervisor, if they weren't satisfied with that, to take it up
with the foreman; if they were still not satisfied with his
answer, to take it up with Mr. Vick who was the plant
manager and if they were still not satisfied they could see
me at any time since I was in and out of the plant regularly
Costa also described the Company as "being very dear to us,
that we made our living here, and that we should treat it
accordingly:"
I also stated that loyalty is one of the things that you can
give in return for your living. I asked that they support their
company and I also stated that a tug of war was fine in a
picnic area but not in a factory. I went into the union
organizing effects .... I emphasized that the Union
couldn't do anything, that all of their pay and benefits
came from Louisburg Sportswear, had always come from
Louisburg Sportswear, and would always come from Louis-
burg Sportswear I reviewed the fact that the Union replaces
individual bargaining rights covering wages, hours and
conditions, that they had always enjoyed. I urged , before
they decided anything, to get all of the facts. I touched on
union related violence and union related political activity,
as reported in the various papers and suggested that they
read about it .... I stated that the normal procedure for a
[union] organizer would be to have people within the plant
to feed back information to the organizer, and undoubtedly
Mrs. Barnes did have.
Costa's remarks at these meetings carried the clear sug-
gestion to the employees that the wage increase which had
been recently announced and the other benefits touched upon
was the "loyalty" to the Company that was expected in return
and necessitated a rejection of the Union.
3. The increased hospitalization benefits
Costa testified that it was the company policy to provide
benefits equal in amount to the existing local semiprivate room
rate, and to raise the hospitalization amount periodically when
they learned about increases in hospital rates. He admitted,
however, that this policy of the Company was not widely
known and had not been publicized. The previous increase in
hospital benefits at Louisburg had been effective in August
1966.
Costa further testified that it was a result of his mentioning
the hospitalization fringe benefit to the employees at the
meetings of July 26 and 27, that it occurred to him that he
had not requested a check for a period of about 6 months. He
thereupon had local rates checked and, on August 4, 1967,
announced that hospital benefits for Louisburg had been
increased from $15 per day to $16.50 per day. Considering the
fact that this increase in benefits was triggered by the meetings
of July 26 and 27, where Costa spoke of the Company's
opposition to the Union and the Company's right to the
employees' loyalty in return for their living, it is not likely that
employees would "miss the inference that the source of
benefits now conferred is also the source from which future
benefits must flow and which may dry up if it is not obliged."
N.L.R.B. v. Exchange Parts Co, supra. As such it was a
violation of Section 8(a)(1) of the Act.
4. The August meetings
From the latter part of August until mid-September, Costa
held another series of group meetings with his employees, in
groups of 10 to 15 at a time. At these meetings, however, some
of the employees were excluded. Thus, neither Bernice House
nor Bertha Duke, two of the card signers, were asked to
attend. Even Lois King, sister of Linda Rich, who asked her
supervisor for permission to attend, was told "I don't think
he'll let you go, but I will ask Mr. Vick or Bob [Meeks]."
Costa's explanation for the exclusions from these meetings was
that the exclusions "had to do with people who I felt, on the
basis of feed-back, who would not be interested in what I was
going to speak about." When asked how he knew these people
were not interested, he answered "from the way they carried
themselves in the plant," and gave us an example, "soliciting
for the Union." He was finally asked categorically
TRIAL EXAMINER The only ones excluded from the
production and maintenance groups were what type of
employees?
THE WITNESS People who were openly soliciting for
the Union.
At these meetings he read from a typewritten text Among
other things, he mentioned that the Union's organizaitonal
efforts were now before the National Labor Relations Board
and an election was expected in September or October. He
mentioned the names of some of the officers of the Union and
their country of birth, particularly where it was foreign. He
also distributed a 1920 report on the Union and some alleged
details of its subsequent history. Among other things he told
the employees:
The Union has no real interest in either you or this plant. It
puts its own interest ahead of anything else It has its own
goals and its own objectives ....
Costa also quoted a newspaper item concerning an em-
ployee whom a union fined for failing to attend a union
meeting on Sunday, which fine was upheld by the Courts. He
also called their attention to another newspaper article
describing a law suit filed by employees to whom a union had
made promises, as a result of which they had gone out on
strike. The article pointed out that the employees had not
been given the things promised them and had lost their jobs
and were now suing the union.
Costa also told the employees that if the Union won the
election the Company would be required to meet and bargain
with the Union in good faith, but would not have to agree to
any union proposal.
Even if the Union should be voted in, we would still have
the right to say no to any union demand and any union
proposal they made on us .... We are not going to agree to
any union contract or to any union demand or to any union
proposal that is not to the best interest of this plant and all
our employees .... What would the Union do about
it? .... The only thing they could do is to call you out on
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike, they only have one weapon. The strike is the Union's
only weapon and they would want you to be the
ammunition. They want to stand on the sidelines and help
you and the Company to fight it out. The Union would
want to hold your coats during the fight between you and
the Company. That is the only way they could try to make
us sign the contract. The Union only has one thing to offer
you and that is pressure on the Company and pressure on
this company could lead to a strike and all the trouble that
could go along with it
He then showed the employees clippings of newspaper
articles and pictures depicting rioting at a strike-bound
shipyard. One picture showing a stricken man is captioned
"Nonstriking Worker Pays Price Tuesday After Leaving Job At
Shipyard " Another picture is captioned "Trooper Ready With
Teargas Gun." Still another picture is captioned "Angry
Rioters Were Dispersed By Dogs And Troopers."
Costa continued to discuss strikes by saying that if the
Union called a strike to try to make the Company sign a
contract, the employees would not get paid, either from the
Company or from the Union nor could they collect unemploy-
ment compensation but "most importantly" the employees
could lose their jobs because the Company would have the
right to permanently replace strikers with new workers He
referred to the group of employees that tried to see Vick as a
mob and continued his discussion on strikes telling the
employees that the Union calls a strike whether or not the
employees want the strike and in a strike there might be a
picket line manned by strangers who might threaten those who
wanted to work.
We would do our best to protect all our people in a strike
situation, but strikes very often lead to violence and the
kind of trouble that you read about in the newspapers
everyday. We don't want that kind of trouble here and I
don't believe you want it either
Costa then passed around a magazine published for the
Combined Textile Industries and in which was an account of a
strike at a nearby cotton mill. He called particular attention to
some of the pictures in the article including one showing bullet
holes in the car of a nonstriker and another showing the
bloodied head of another nonstriker hit by a brick. He then
discussed the successful operation of the Respondent's plant
saying "Your security and your future will come from this
plant being a success-nothing else. You cannot buy security
by paying dues and fees to the Union. "
How much security would you have if the Union won an
election and then called you out on strike? How much
security would you have if you were out on the picket line
doing without your pay? How much security would you
have if the Union caused so much trouble here and
interfered with our operation to the point that we could
not operate this plant successfully and that it caused us to
lose more and more money that we were then forced for
economic reasons to close the plant down? How much
security would you have then?
He then discussed a newspaper article describing a plant
closing in North Carolina, which had been struck since June
12, and concluded the meeting showing the employees a
cartoon depicting a woman telling a man "you are no longer
on strike, dear, the Company has gone out of business."
5. The September-October meetings
Costa held further meetings with the employees during late
September and October, in which the topics discussed were
very much like the ones at previous meetings. He pointed out
that the Company may exist, explaining that some companies
do not necessarily exist for a number of reasons citing a
Lynchburg plant closing after losing an election to a union He
also dwelt at some length on newspaper clippings which he
showed to the employees describing a strike at a plant in
Russellville and ending with the closing of the plant. He told
the employees that if they voted "no", "they were voting no
union, no violence, no union trouble, no dues, no assessments,
no fines, no fees, and no contributions "
6. Letters and notices
In late July, Costa sent the employees a letter enclosing the
notice which had been posted within the plant setting forth
the Company's opposition to the Union. This has previously
been described as the "serious harm" notice. On September
13, Vick sent the employees a letter telling them among other
things,
The Union doesn't pay you wages. The Union has never
given you anything and they never will. Your pay will
always come from the Company-not from the Union
What do you think would happen if the Union were voted
in and then the Company did not agree to all the Union's
demands and proposals during bargaining? What could the
Union do about rt7
The only thing the Union could do is to call you out on
strike.
If you let the Union get into our plant they are going to
make the decisions and run the show-not you They are
going to call the shots They are going to tell you what to
do. If you don't do what they say, they could really put
pressure on you.
Please think carefully about these things while you still have
time to protect yourself from union trouble.
Vick sent another letter on September 18, telling them that
the reason the Union was trying to get into the plant was
because the Union wanted to collect money from the
employees. On September 27, Vick wrote the employees again
adding "Where would you be if the Union won an election and
then called you out on strike?" Enclosed was a cartoon
showing a man telling a family "give me your money or your
car-the finance company can't wait until the strike is over "
On October 4, Vick wrote the employees once again telling
them-
Unions dominate their members. They tell them what to
do, they tell them what not to do and they make them
follow all the union rules, regulations and restrictions As
the result there is NO FREEDOM FOR UNION
MEMBERS'
Enclosed with this letter was a reprint of a commentary on the
Supreme Court decision in N.L.R.B v. Allis-Chalmers Manu-
facturing Co. Finally, Vick wrote to the employees on October
10, telling them:
The union issue boils down to a few basic points.
1. A strike would hurt you and the Company. A strike
would disrupt our operation and it could cause you to lose
your job. Economic strikers can be permanently replaced
with new workers ....
Enclosed with this letter was a cartoon saying "Don't make a
mistake, vote no", and showing an employee saying "I am
voting no fees, no strikes, no dues, no violence, and no union."
LOUISBURG SPORTSWEAR CO. 691
Costa also identified several notices that were posted in the
plant dunng the preelection period. One of them read-
Are you playing with dynamite? If the union leaders guess
wrong about your job who gets hurt? Not them. You and
your family will have to find a way to eat and pay bills
when they call a strike.
7 Other 8(a)(1) conduct
a. Interrogation
Employee Daniels testified that her supervisor came up to
her at the factory and asked her how she was going to vote.
This testimony was not contradicted and I credit it. In the
absence of any legitimate reason for such an inquiry and any
assurances against reprisal, and in the context of other
contemporaneous unfair labor practices, it was a violation of
Section 8(a)(1) of the Act, constituting interference with the
employees' rights. Fontana Brothers, 169 NLRB No. 56
b. The appreciation night dinner
Shortly before the election, handbills were distributed
outside the Respondent's plant by local businessmen These
handbills announced an "Appreciation Night" dinner to be
held at 7 p.m., October 11, 1967, at the local high school with
free entertainment and door prizes (the election was held on
October 12, 1967). At this "Appreciation Night" dinner, the
film "And Women Must Weep" was shown. Although the
record in this proceeding contains little detail describing the
film, the Board has had occasion to consider this particular
film in previous cases. National Labor Relations Board
Chairman McCulloch describes it as follows
This is the same film shown to employees in the Plochman
and Harrison case supra where a majority of the Board set
aside the election because of this fact.
As the majority opinion in Plochman notes, the film
purported to be a true story account of the 1956
Potter-Brumfield strike in Princeton, Indiana, which in-
volved a different company, a different industry, a different
union, and a different community. The film is not a
documentary It is a staged production based on a contrived
script, played by professional actors, including an actress
who impersonates a minister's wife, the narrator. The film
tells the story of property destruction, violence, and the
near murder of a child allegedly committed by a union
dunng the course of a strike obstensibly called for no
justifiable reason.
It is organized with sequences skillfully put together so as
to achieve the maximum dramatic and emotional impact
The professional acting is smooth and extremely lifelike. In
fact, the entire production is so well conceived that the
ordinary viewer is likely to consider that it represents the
literal truth. No attempt has been made, however, to prove
that events happened exactly as they are portrayed in the
film. In fact, there is ground for believing that the film has
distorted the true picture, not only by telling only one side
of the story, but by misrepresenting facts. (Carl T. Mason
Co., Inc, 142 NLRB 480, 484 )
The showing of this same film has been found to be
violative of Section 8(a)(1) of the Act, Southwire Company,
159 NLRB 394, as a restraint upon the employees' rights
under Section 7 of the Act.
Respondent argues, however, that the showing of the film
at the "Appreciation Night" dinner was not the responsibility
of the Respondent inasmuch as it was arranged and conducted
by third parties. I note, however, the testimony of a number of
employees to the effect that their supervisors either asked if
they were going to attend this dinner or told them to attend it
Thus, employees Dickerson, Wilson, Wood, Patterson, and
Daniels were asked by their respective supervisors whether
they were going to attend the dinner Daniels also heard her
supervisor ask two other employees. Employee Hodge was also
asked by her supervisor if she was going to attend the dinner
and, when she replied that she would not unless she could go
with someone, her supervisor told her she could bring someone
but that such person would not be eligible for door prizes
Employee House was told by supervisor "I want to see you at
the supper." I credit the testimony of these employees,
particularly in the absence of any contradiction by the
supervisors involved. Moreover, a number of supervisors
attended this dinner. This behavior by several supervisors of
the Respondent casts an entirely new light upon the third
party aspects of the dinner. I find that the supervisors'
interrogation of the employees about their attendance at the
meeting as well as their presence at the meeting effectively
adopted the meeting as the Respondent's, at least in the minds
of the employees, and any 8(a)(1) conduct occurring there
such as the showing of the film "And Women Must Weep" not
only can, but must be, attributed to the Respondent.
8. Conclusions regarding the
8(a)(1) conduct
Respondent argues that all of Costa's remarks are privileged
and contain no threats nor do they point to any action which
Respondent might take in retaliation against employees for
selecting the Union. This argument, however, oversimplifies
the problem. As in a mosaic, one cannot comprehend the
whole of the picture by simply examining each of the
fragments separately. Examining the totality of the conduct
engaged in by the Respondent, it is clear that the Respondent's
portrayal of unionization was not simply unfavorable to the
Union, but entirely impossible of any fruitful outcome. Strikes
of the employees are pictured as inevitable and violence
ensuing therefrom unavoidable. Indeed, Costa's testimony
fortified such a conclusion. He could not recall being asked
"How can we keep violence out of Sportswear9" He did,
however, recall being asked "How do we keep the Union out?"
In his mind the two questions were similar and his remarks to
the employees, consciously or otherwise, conveyed the same
meaning. Moreover, his answer was not merely accidental and
unintended. He testified that he arranged with several of his
supervisors to have them ask such a question of him at the
meeting This intentional linking of unionism with violence
was emphasized repeatedly by his repetitive reference to
alleged violence occurring in strikes elsewhere. Never did he
suggest the possibility of a peaceful strike.
Similarly Costa's remarks concerning the loss of jobs could
not help but convince the employees of the futility of
unionization. Although he linked loss of jobs to an economic
strike, it is very doubtful that his listeners, lacking the ability
to comprehend legal niceties, would recognize the difference
between that and an unfair labor practice strike.
Thus, employee Nevils was asked:
Q. Was anything said about the continued operation of
the plant?
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. They just referred to it if the Union came in, that the
plant might close down, they talked about others that had
closed down on account of it.
Q. Who said that?
A. Mr. Costa
On cross-examination counsel for the Respondent asked.
Q. Wasn't the only thing Mr. Costa said about the
possibility of the plant closing down something like this, if
the Union interfered with the operation of the plant, we
could not operate econorrucally, we might be forced to
close down? Isn't that all he said?
A. Yes-But to me it meant the same thing.
This constant reiteration of strikes, violence, and job loss
linked inextricably with unionization could not but result in
the creation of fear in the minds of the employees should the
Union win the election. At one of these meetings employee
Harris testified that someone asked what could be done to
avoid the dire consequences related by Costa According to
her, Costa's answer was to vote "no", "that would end the
strike because there would be no union and therefore we
would have no strike." Employee Nevils testified that Costa
said the only way to keep violence out was to keep the Union
out. Employee Daniel testified that Costa said to avoid strikes
and violence not to get the Union in. Employee Duke testified
that Supervisor Gilliam asked Costa how they could keep
violence out and Costa's answer was "keep the Union out."
The language of the Board in Ideal Baking Co., of
Tennessee, Inc., 143 NLRB 546, 552, is apropos-
This unremitting effort on the part of Respondent to
impress upon the employees the dangers inherent in their
selection of the Union as their bargaining agent, particularly
the danger of job loss, followed up by the baleful
representation of the prospect of violence, physical injuries,
and property damage as the ordinary result of voting for the
Union in the election, was not an attempt to influence the
employees by reason, but was an appeal to fear. Indeed,
Respondent's entire preelection campaign was intimidatory
in nature and intended to convey the threat of job loss and
physical violence should be [sic] the Union win the
election.
Thus, I conclude as the Board did in Ideal, that the
Respondent's entire preelection, antiunion campaign, when
considered as a whole, was intended to interfere with, restrain,
and coerce its employees in the exercise of their rights
guaranteed by Section 7 and was accordingly violative of
Section 8(a)(1) of the Act. I include in this conclusion
Respondent's reference to "serious harm" and the "pathway
to . . serious trouble" in connection with unionization, as
well as Respondent's interrogation and its involvement in the
showing of "And Women Must Weep" of the "Appreciation
Night" dinner.
I note, also, in addition to the similarity of this case to
Ideal, supra, its similarity to Crystal Lake Broom Works, 159
NLRB 429, Yazoo Valley Electric Power Association, 163
NLRB No. 106, and Crown Laundry & Dry Cleaners, Inc., 160
NLRB 746, in all of which the employer involved was
represented by the law firm representing Respondent.
CONCLUSIONS OF LAW
1. By the discharge of employees Elleanor Rice and Linda
Rich on or about June 14, 1967, because of their union and/or
concerted activities, Respondent has violated Section 8(a)(1)
and (3) of the Act.
2. By its refusal to hire former employee Louise Boone on
and after October 11, 1967, because of her union activities,
Respondent has violated Section 8(a)(1) and (3) of the Act.
3. By Plant Manager Vick's surveillance of union activities
of the employees, by Manager Costa's impression of surveil-
lance which he conveyed in his speech of July 21, where he
also spoke of "serious harm" by unionization, by its promise
of a wage increase on July 24, 1967, and its effectuation on
September 5, 1967, by Manager Costa's liberalization of the
grievance procedure announced on or about July 26, by its
increased hospitalization benefits announced on August 4,
1967, by its meetings of July, August, September and October
1967, as well as by letters and notices transmitted to its
employees dung that same time, in all of which the
inevitability of strikes and violence ensuing as result of
unionization was emphasized together with probable job
losses, by its interrogation of employees regarding union
intentions and by its involvement in the showing of the film
"And Women Must Weep," Respondent has violated Section
8(a)(1) of the Act.
4. By its refusal to bargain collectively with representatives
of its employees' union on and after August 3, 1967, in the
absence of a good faith doubt as to the Union's majority at
that time, Respondent has violated Section 8(a)(5) and (1) of
the Act.
OBJECTIONS TO THE ELECTION
The Union filed timely objections to conduct affecting the
results of the election which was held on October 12, 1967,
and which the Union lost. Objection 1 was the wage increase in
September 1967, pursuant to the promise made around July
24, 1967, Objection 2 was the promise of an increase in
hospitalization benefits made on or about August 4, Objection
3 was the grant of an increase in hospitalization benefits on or
about August 21, 1967, pursuant to the promise made on or
about August 4; Objection 4 was the dinner meeting referred
to previously as the Appreciation Night Dinner of October 11,
where the film "And Women Must Weep" was shown;
Objection 5 was the notice on or about July 26, stating in part
that if the Union were to get in it would operate to "your
serious harm"; Objection No 6 was the meetings of July and
August with small groups of employees where violence and
strikes were mentioned as inevitable consequences of unioniza-
tion together with threats of plant closing; Objection No. 7
was the Respondent's leaflets indicating that a vote for the
Union was a vote for violence and strikes and for closing of the
plant. All of these objections have already been discussed in
the earlier portion of this decision under unfair labor practices
and have found to be violations of Section 8(a)(1) of the Act.
Such conduct which occurred during the critical period
between the date the representation petition was filed and the
date the election was held is a fortiori conduct which interferes
with free choice in an election. Leas & McVitty Incorporated,
155 NLRB 389, and cases cited therein.
Objection 8 by the Union to conduct affecting the results
of the election is:
The aforesaid employer campaign was intertwined with a
local businessmen campaign in which furtive threats of
plant closing were made by individual businessmen to
individual employees and the public innuendo of plant
LOUISBURG SPORTSWEAR CO. 693
closing was made by the local newpaper on September 28
and October 5, 1967. This campaign so polluted the
atmosphere that the holding of a free and fair election was
rendered impossible
Predictions of plant closings were made by various local
citizens according to the uncontradicted testimony of a
number of employee witnesses. Thus, employee Thorne
testified that Sam Woods, an operator of a local store, told her
that "if you all vote that union in there, Carolina Fine Woods
[a Sylvania plant which was widely known to be considering
establishing a plant in Louisburg] is holding back, they will
not come to town; we don't want that to happen. They will
close that plant because they say so."
On October 4, the Union held the meeting at the local
courthouse. Clint Fuller and Ashely Johnson, managing editor
of the local newspaper "Franklin Times" and manager of the
local radio station WYRN, respectively, attended. Employee
King testified that Fuller told her and other employees at that
meeting that Carolina Fine Woods was waiting to see the
results of the pending election at Louisburg to determine
whether or not to locate there. Employee Foster at the same
meeting testified that he heard Fuller say that if the Union
came in the Respondent would close down and the new plant
would not come in. Foster also heard Johnson say that the
citizens of the county had raised $71,000 and borrowed
$171,000 to put the company building here. Employees Rice
and Rich corroborated the testimony regarding Fuller's state-
ment.
On October 10, the "Franklin Times" ran a 2-page ad
signed by scores of local citizens urging the employees to vote
"no union." This advertisement was put up by the Respondent
in the lobby of the plant superimposed upon a red velour cloth
and captioned "This is what your friends of Franklin County
think of Ed Blair and his union." Employee House testified
that when she saw the name of her druggist, Herbert Scoggins,
in this double page ad, she called him and asked him what he
was doing signing the paper. Scoggins replied that Jack Cooper,
an insurance agent, brought him the paper to sign and Scoggins
signed thinking he was helping the employees because the
plant would close if the Union came in
The "Franklin Times" ran a number of articles and
editorials on the Union and the election. In the edition of
September 24, it mentioned labor troubles at neighboring
Henderson several years before where there was violence and
"a number of workers left without jobs " In the edition of
October 5, the paper again mentioned the Henderson diffi-
culties stating that the strike there resulted in the loss of
employment at that plant for 1400 workers some of whom
were never reemployed after 1959. Finally, in an editorial in
the September 28 edition, the Franklin Times concluded by
saying.
But all citizens, interested in future developments of this
area, can readily see the threat to future location of plants
here should the unions come in. With tobacco facing its
most trying days and the county in need of more, not less,
job opportunities, it is hoped that those voting on October
12 will consider, first, the welfare of the county.
Respondent argues that the conduct of third parties was not
such as to require that the election be set aside. The Board,
however, has held to the contrary in situations like this. Dean
Industries Inc., 162 NLRB No 106, and cases cited therein.
Respondent further argues that the Respondent was not
responsible for the conduct of these third parties if it was
objectionable. There is reason to conclude that the Respon-
dent can and should be held responsible for the conduct of
these third parties See, for example, Hamburg Shirt Corp.,
supra. I find it unnecessary, however, to decide whether the
Respondent here should be held accountable for the behavior
of these third parties. I have already found that the Respon-
dent has committed unfair labor practices like the acts
committed by the third parties here. In any event even if these
antiunion activities by the local citizenry cannot be attributed
to the Company such activities rendered impossible the
rational, uncoerced selection of a bargaining representative as
contemplated by the Act. Dean Industries Inc, supra; Uni-
versal Manufacturing Corporation of Mississippi, 156 NLRB
1459, 1467, and cases cited therein
I therefore recommend that the election of October 12,
1967, be set aside.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act I shall
recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having further found that the Respondent discriminatorily
discharged employees Elleanor Rice and Linda Rich on June
14, 1967, I shall recommend that the Respondent offer them
immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority
or other rights and privileges and make them whole for any
loss of earnings suffered by reason of the discrimination
against them by payment of a sum of money equal to that
which they normally would have earned as wages from the
date of discharge to the date of Respondent's offer of
reinstatement less any net earnings during said period (Crossett
Lumber Co., 8 NLRB 440) and in the manner described in F
W. Woolworth Company, 90 NLRB 289, together with interest
thereon at the rate of 6 percent per annum as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Having further found that the Respondent discriminatorily
refused to hire former employee Louise Boone on October 11,
1967, I shall recommend that the Respondent offer Louise
Boone employment at her former or substantially equivalent
position. Inasmuch as there is no indication that her job or its
equivalent is vacant now, I shall order Respondent to offer
such employment to her as soon as such position becomes
available and, in the meantime, make her whole for any loss of
earnings suffered by reason of discrimination against her by
payment of a sum of money equal to that which she normally
would have earned as wages from the date of Respondent's
refusal to hire her to the date of Respondent's offer of
employment less any net earnings during said period as set forth
in the previous paragraph.
Having further found that the Respondent has unlawfully
refused to bargain with the Union I shall recommend that the
Respondent be required at the request of the Union to bargain
collectively with said Union as the exclusive representative of
all employees in the appropriate unit and embody in a signed
agreement any understanding reached. The unit found appro-
priate is
All production and maintenance employees at the Em-
ployer's Louisburg, North Carolina, plant, but excluding
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees, guards, and supervisors as defined
in the Act
Ordinarily a second election might be indicated where a prior
election has been invalidated. Here, however, the nature of the
unfair labor practices not only negate Respondent's alleged
good faith doubt of the Union's majority, but, together with
the community's antiunion behavior, make a fair election
impossible. Under such circumstances, an election would be a
"less reliable indication of the true desire of employees than
authorization cards" Joy Silk Mills, Inc., 85 NLRB 1263, enfd.
185 F.2d 732 (C.A.D.C.), River Togs, Ire, 160 NLRB 58,
enfd. in part 388 F.2d 198 (C.A. 2).
Counsel for the Charging Party further requests that the
remedy provide that Respondent make its employees whole
for the monetary value of benefits which they would reason-
ably have been expected to receive but for Respondent's
unlawful refusal to bargain, such amounts based upon earnings
in comparable sportswear plants organized by the Union. He
further urges that the "General Counsel and the Amalgamated
appear before an assembly of all of Respondent's employees to
explain what has happened in this hearing, the nature of the
Company's offenses and their ramifications, the nature and
dimensions of the bargaining order and related matters." I find
insufficient justification for these extraordinary measures
urged by counsel for the Charging Party, being of the opinion
that the remedy provided in the order should be sufficient to
redress the wrongs committed by the Respondent. See
Mechanical Specialties Company, Inc., 166 NLRB No. 31.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law I recommend that the Respondent, Louis-
burg Sportswear Co., its officers, agents, successors, and
assigns, shall
1. Cease and desist from.
(a) Refusing to bargain collectively in derogation of the
rights of Amalgamated Clothing Workers of America, AFL-
CIO, any other union selected by the employees as their
exclusive bargaining representative.
(b) Discouraging membership in and activity on behalf of
Amalgamated Clothing Workers of America, AFL-CIO, or any
other labor organization, by discharging or refusing to reinstate
employees or by discriminating against employees in any other
manner in regard to their hire or tenure of employment or any
term or condition of employment.
(c) Surveilling [sic] or creating the impression of surveilling
[sic] union meetings and activities.
(d) Promising or granting financial and other benefits to
employees to discourage unionization.
(e) Unlawfully interrogating employees concerning their
union activities and attitudes.
(f) Changing its grievance procedures to discourage union-
ization of the employees.
(g) Threatening strikes, job loss, violence, and property
damage or serious harm as the inevitable consequence of
unionization.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or assist
Amalgamated Clothing Workers of America, AFL-CIO, or any
other labor organization, and to engage in any other concerted
activities for the purpose of collective bargaining or any other
mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a)(3)
of the Act as modified by the Labor Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act-
(a) Offer Elleanor Rice and Linda Rich immediate and full
reinstatement to their former or substantially equivalent
positions as of June 14, 1967, without prejudice to their
seniority or other rights and privileges previously enjoyed, and
make such employees whole for any loss they may have
suffered by reason of the discrimination against them in the
manner set forth, in the section of the above decision titled
"The Remedy."
(b) Offer Louise Boone employment at her former or
substantially equivalent position as soon as such position
becomes available and make her whole for any loss that she
may have suffered by reason of the discrimination against her
in the manner set forth in the section of the above decision
entitled "The Remedy."
(c) Notify the above-named employees if presently serving
in the Armed Forces of their right to full reinstatement upon
application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces
(d) Preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records relevant and necessary to a
determination of compliance with (a) and (b) above.
(e) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all the
employees in the following appropriate unit and embody in a
signed agreement any understanding reached
All production and maintenance employees at the Em-
ployer's Louisburg, North Carolina, plant but excluding
office clerical employees, guards and supervisors as defined
in the Act.
(f) Post in conspicuous places at its place of business
including all places where notices to employees are customarily
posted, copies of the attached notice marked "Appendix"'
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by the
Respondent's representative, shall be posted by the Respon-
dent immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter Steps shall be taken by
Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director for Region 11, in writing,
within 20 days from the date of this Recommended Order,
what steps the Respondent has taken to comply herewith.2
I In the event that the Recommended Order be adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice In
the further event that the Board's Order is enforced by a decree of the
United States Court of Appeals the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
2 In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
LOUISBURG SPORTSWEAR CO. 695
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
After a trial at which all sides had the chance to give
evidence, it was found that we, Louisburg Sportswear Co.,
violated the National Labor Relations Act, and we were
ordered to post this notice to inform our employees of their
rights.
The Act gives all employees these rights
To organize themselves
To form, join, or help unions
To bargain as a group through a representative they
choose
To act together for collective bargaining or other mutual
aid or protection
To refuse to do any or all of these things
We have also been ordered to assure our employees that-
WE WI ,L NOT do anything that interferes with these
rights.
WE WILL NOT spy on your union meetings or union
activities.
WE WILL NOT make threatening speeches or put out
threatening notices saying a union will operate to your
serious harm if it gets into the plant.
WE WILL NOT promise or grant financial or other ben-
efits to discourage you from unionization.
WE WILL NOT unlawfully question you about your
union activities and attitudes
WE WILL NOT change our grievance procedure in order
to discourage unionization.
WE WILL NOT threaten strikes, job loss, violence or prop.
erty damage as the inevitable consequence of unionization.
You are free to loin the Amalgamated Clothing Workers
of America, AFL-CIO, or any other union and by
majority choice to select any union to represent you in
bargaining with us.
WE WILL upon request bargain collectively with the
Amalgamated Clothing Workers of America, AFL-CIO, as
the exclusive representative for all our production and
maintenance employees at the Louisburg, North Carolina,
plant but excluding office clerical employees, guards, and
supervisors.
It was also found that we violated the Act when we fired
Elleanor Rice and Linda Rich because these employees
were for the Union.
WE WILL give these employees their jobs back and their
seniority and we will make up the pay they lost and also
pay 6-percent interest.
It was also found that we refused to rehire Louise Boone
because she was for the Union and we therefore violated
the Act
WE WILL offer Louise Boone her job as soon as it is
available and in the meantime make up the pay she lost and
also pay her 6-percent interest.
Dated
LOUISBURG SPORTSWEAR
Co.
(Employer)
By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material
If employees have any question concerning the notice or
compliance with its provisions, they may communicate di-
rectly with the Board's Regional Office, 1625 Wachovia
Building, 301 North Main St., Winston-Salem, North Carolina
Telephone 723-2911.