Phoenix Glove Co.

National Labor Relations Board - Board Decisions

Jan 27, 1984

268 N.L.R.B. 680 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phoenix Glove Company, Inc. and Amalgamated
Clothing and Textile Workers Union, AFL-
CIO, CLC. Cases 11-CA-9942 and 11-RC-
4990
27 January 1984
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 3 September 1982 Administrative Law Judge
J. Pargen Robertson issued the attached decision.
The General Counsel, the Respondent, and the
Charging Party filed exceptions and supporting
briefs. Respondent filed an answering brief to the
General Counsel's and the Charging Party's excep-
tions. The General Counsel and the Charging
Party each filed answering briefs to Respondent's
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions, 2 as modified,3 and to adopt the rec-
ommended Order, as modified.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In adopting the judge's recommendation that Objection 2 and Objec-
tions I and 3(e) be overruled, we disavow reliance on the law set forth in
Burris Chemical, Inc., 246 NLRB 205 (1979), and Hickory Springs Mfg.
Ca, 239 NLRB 641 (1978), which the Board has overruled in Home d
Industrial Disposal Service, 266 NLRB 100 (1983). This change in Board
law does not affect the ultimate resolution of the objections.
In adopting the judge's recommendation that Objections I and 3(b),
par. I (concerning the conversation between McCray and Avis McFad-
den), be overruled, we disavow reliance on the statement that it is unlike-
ly McFadden would have changed her position given her status as a Je-
hovah's Witness. We also find it unnecessary to pass on the judge's com-
ments concerning McCray's possible status as a union agent because the
threats allegedly made by him either bore no relationship to the election
or did not constitute objectionable conduct which could interfere with
the results of the election.
Finally, because the judge would discredit the testimony of Mary Ann
McKnight, we find it unnecessary to pass on his conclusions as to wheth-
er her testimony fell outside the scope of various objections.
s In the absence of exceptions, we adopt pro forms the judge's conclu-
sions with respect to the 8(aXl) allegations concerning the conversation
between Nancy Frazier and Grover Mixon, and the March 1981 conver-
sation between Derrick McCray and Production Manager Hughes.
We find it unnecessary to decide whether the Respondent's plant man-
ager, Grover Mixon, illegally solicited grievances in a conversation with
Linda Jay Casselman. Given other findings of unlawful solicitation which
we adopt, a similar finding here would be cumulative and have no effect
on the remedy.
The judge also found that the Respondent violated Sec. 8(aXl) when
Supervisor Wineglass told employee Casselman that the employees did
268 NLRB No. 107
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Phoenix Glove Company, Inc., Andrews,
South Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
Substitute the following for paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
CERTIFICATION OF
REPRESENTATIVE
It is certified that a majority of the valid ballots
have been cast for Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC, and that
it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate
unit:
All production and maintenance employees on
all shifts including the Group Leader in the
Electrode Department, excluding all office
clericals, guards, and supervisors as defined in
the Act.
not need a union and that they would be "messing up" if they got one.
We find these comments to be too vague and ambiguous to rise to the
level of a violation of the Act, and, therefore, we dismiss that part of the
complaint related to the incident.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard before me in Andrews and George-
town, South Carolina, on April 13-16, and May 13 and
14, 1981. The charge in Case 11-CA-9942 was filed on
June 15, 1981, and amended on June 24, 1981. The com-
plaint issued on July 28, 1981. On January 12, 1982, Case
11-CA-9942 was consolidated for hearing with Case 11-
RC-4990.
The complaint alleges that Respondent' engaged in
various conduct violative of Section 8(a)(1) during an or-
Through its answer, Respondent admitted the commerce allegation in
the complaint. The complaint alleges, Respondent admits, and I find that
at all times material herein, Respondent, a corporation with facilities lo-
cated in Andrews, South Carolina, engaged in the manufacture of gloves
and during the past 12 months, a representative period, Respondent paid
in excess of $50,000 for goods and materials purchased directly outside
the State of South Carolina, and during the same 12-month period Re-
spondent sold goods to points directly outside the State of South Caroli-
na valued in excess of $50,000. Respondent admitted and I find that it is
an employer within the meaning of Sec. 2(6) and (7) of the Act.
Respondent also admitted and I find that the Charging Party (the
Union) is, and has been at all times material herein, a labor organization
within the meaning of Sec. 2(5) of the Act.
680
PHOENIX GLOVE CO.
ganizing campaign conducted at its Andrews, South
Carolina, facility by Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC (the Union). That cam-
paign was initiated by the Union in December 1980. The
8(a)(1) activity allegedly occurred from February
through May 1981, and was alleged to include various
threats and promises to employees, interrogations of em-
ployees, solicitation of grievances, and the granting of a
pay increase.
Additionally, Respondent allegedly discharged em-
ployee Derrick McCray in violation of Section 8(a)(1)
and (3) during the Union's organizing campaign.
Consolidated for hearing with the above-mentioned
complaint were various employer objections to conduct
affecting the results of election. The petition in Case II-
RC-4990 was filed by the Union on April 9, 1981. The
election was conducted on June 19 and 20, 1981. The
Union received 102 votes, 52 votes were cast against the
Union, and there were 3 challenged ballots.2
A. Derrick McCray
During the investigation of an alleged theft of a power
handsaw from its facility, Respondent suspended Derrick
McCray from work on April 24, 1981. Subsequently on
May 1, 1981, McCray was discharged. When told of his
discharge McCray was advised that Respondent's action
resulted from his refusal to cooperate in the investigation
of the missing saw and because of his work record.3
There is no dispute regarding Respondent's knowledge
that McCray was deeply involved in assisting the
Union's organizing campaign at the time of his discharge.
McCray was one of the first employees contacted by the
Union during December 1980. He accompanied union
representatives to homes of other employees, and he vis-
ited employees at their homes alone to discuss the Union
and solicit authorization cards. McCray attended union
meetings and he discussed the Union and solicited cards
from other employees. Respondent's plant manager,
Grover Mixon, admitted that he knew McCray was "in-
volved" with the Union.
Shortly after Easter 1981, employee Jerome Brocking-
ton told Plant Manager Mixon and Production Manager
Roger Hughes that he had seen McCray with a company
saw downtown on Easter Sunday.
McCray, Brockington, and a few other employees
worked Easter Sunday along with Supervisor Joyce
Hudson. McCray admitted that he went to the tool cage,
where the handsaw was normally left, during his work
on Easter Sunday. However, other employees including
Jerome Brockington also had occasion to visit the tool
crib.
Following work Brockington and employee Charles
McCutchen drove downtown where they parked to ob-
serve an apparent accident. While there, according to
testimony from both Brockington and McCutchen, they
saw Derrick McCray in a brown Ford. Brockington tes-
tified that he looked from the accident toward McCray
' I have considered briefs filed by the General Counsel, Respondent,
and the Union.
3 The precise reason other than refusal to cooperate with the investiga-
tion is disputed. McCray testified that he was told that he had "too many
early leaves."
on three occasions and on the last of those occasions, he
saw McCray with what appeared to him to be Respond-
ent's saw. McCutchen, who was looking toward the ac-
cident, did not see McCray with the saw.
Shortly after Easter, while at work, Brockington re-
ported to Plant Manager Mixon and Production Manager
Hughes that he had seen McCray with the saw. Unrebut-
ted testimony indicated that Respondent noticed that the
saw was missing when it was checked on Monday fol-
lowing Easter.
On Friday, April 24, 1981, McCray was suspended
pending investigation into the question of the missing
saw. On that occasion McCray was asked to submit td a
polygraph examination.
On April 28, McCray called Roger Hughes, and ad-
vised Hughes that he would not take the polygraph exam
but that he was filing charges with the Union.
On May 1, 1981, McCray was discharged allegedly for
his failure to cooperate with Respondent in the investiga-
tion of the missing saw and because of a review of
McCray's work record.
Conclusion
At the outset it should be mentioned that the question
of whether Derrick McCray was involved in removing
Respondent's saw without authorization is not before me.
If I were deciding that issue, I may very well find that
Derrick McCray was innocent. However, my inquiry in-
volves the motives of a party other than McCray. I must
decide the guilt or innocence of Respondent. Specifical-
ly, the sole question before me is whether Respondent is
guilty of violating Section 8(aX3) of the Act by discharg-
ing Derrick McCray. In deciding that question I need
not, and do not, reach the issue of McCray's guilt or in-
nocence.
Respondent cited Classe Ribbon Co., 227 NLRB 406
(1976), for the proposition that it should prevail if it had
an honest belief of McCray's guilt absent a showing by
the General Counsel that McCray did not actually steal
the saw. That standard is inapplicable here since, unlike
the instant question, the alleged discriminatee in Classe
Ribbon was discharged because of union activities even
though those activities were found to be unprotected.4
Here, there is no contention that the activities in ques-
tion, i.e., someone stealing a saw, involved union or con-
certed activity.
Obviously an employer is justified in actions designed
to protect its property even though those actions may in-
volve discharging employees suspected of theft. Con-
versely, of course, the law does not permit an employer
to discharge an employee for union activity on the pre-
text that it suspects the employee of stealing. Therefore,
unlike the test in Classe Ribbon, the ultimate question
here is whether Respondent's asserted basis for discharge
was pretextuous.
The General Counsel cited Fixtures Mfg. Corp., 251
NLRB 778 (1980), in support of its argument that Re-
' Cf. Magnolia Manor Nursing Home, 260 NLRB 377 (1982); Associated
Grocers of New England, 227 NLRB 1200 (1977); Co-Con, Inc., 238
NLRB 283 (1978); AMPAC, 259 NLRB 1075 (1982); NLRB P. Burnup &
Sims, 379 U.S. 21 (1964).
681
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent placed McCray in an untenable position by dis-
criminatorily demanding that McCray take a polygraph
test and then suspending him from work.
In Fixtures Mfg. Corp., the administrative law judge
and the Board found that the alleged discriminatee was
given a polygraph test because of his union activity. Sub-
sequently, the discriminatee was discharged because the
polygraph test implicated him in thefts. Here, the evi-
dence failed to show that McCray was asked to take a
polygraph test because of his union activities. To the
contrary, the record evidence proved that Respondent
had reason to believe that McCray had taken the saw. In
that regard, the evidence showed that Respondent dis-
covered the saw was missing on Monday, April 20.
McCray and others had worked the previous day. Super-
visor Hudson testified that McCray had an opportunity
to take the saw during work on that day, Easter Sunday.
Subsequently, Respondent was told that McCray had
been seen with the saw in Andrews following work on
Easter Sunday.
The General Counsel argues that neither employee
Jerome Brockington nor employee Charles McCutchen
should be believed. Brockington was the employee that
told Respondent that he had seen McCray with the saw
downtown on Easter, following work. McCutchen was
with Brockington at the time. As to McCutchen's testi-
mony at the hearing, I agree with the General Counsel.
McCutchen's testimony was in direct conflict with his
adopted pretrial statement to counsel for the General
Counsel and, for that reason, I am unable to credit his
testimony at hearing.
Nevertheless, the issue remains whether Respondent
would not have discharged McCray absent his union ac-
tivities. The fact that McCutchen cannot be believed,
and that Brockington may have been discredited at the
hearing, does not resolve the issue of Respondent's moti-
vation.
Obviously, evidence that Respondent was presented
with a patently false statement from Brockington would
reflect on the credibility of Respondent's supervisors and
would contribute to a finding of pretext. However, I am
unable to find such evidence in the record.
Plant Manager Mixon, Production Manager Hughes,
Jerome Brockington, and Charles McCutchen all testified
that on Monday, April 20, Brockington told Mixon and
Hughes that he saw McCray with the saw after work the
previous day. I find nothing in that evidence or in
Brockington's subsequent statement to Respondent,
which should have caused Respondent to suspect that
Brockington was not telling the truth.
Moreover, although there was some evidence of a
rumor circulating that Brockington was the one that
took the saw, no evidence was presented to show that
Respondent's supervision was presented with evidence
linking Brockington with the theft. Additionally, nothing
was received which demonstrated any basis on which I
can discredit either Plant Manager Mixon or Production
Manager Hughes on the question of what evidence they
had at the time of McCray's suspension and subsequent
discharge.
The record shows that McCray was the only person
accused before Mixon and Hughes. The record shows
that Mixon and Hughes conducted an investigation. That
investigation produced evidence from an alleged eyewit-
ness and other circumstantial evidence linking McCray
to the theft. In that regard, Mixon and Hughes learned
that McCray had both access to the saw on Easter
Sunday and an opportunity to take the saw.
Against that background, I am unable to find that Re-
spondent's actions demonstrated pretext. When McCray
was confronted on Friday, April 24, he was asked to
take a polygraph test. At that time, and subsequently,
McCray was the only one accused of taking the saw.
Therefore, I find that Respondent's request that he take a
polygraph examination was reasonable. Moreover, due to
the evidence linking McCray to the theft and the obvi-
ous effect inaction could have had on Respondent's con-
tinuing equipment security at its facility, I find Respond-
ent's action in suspending McCray pending final investi-
gation was also reasonable.
The following week McCray told Respondent he
would not take a polygraph examination. At that point
Respondent's awareness involved the above-mentioned
evidence linking McCray to the theft which was offset
solely by McCray's denial that he took the saw. Assum-
ing Respondent's good faith, and the record showed
nothing apparent to Respondent which would enable me
to question their good faith, it is obvious that Respond-
ent was thereupon presented with a difficult dilemma.
Respondent could either ignore the evidence against
McCray and reinstate him or it could terminate his em-
ployment. The first alternative would have seriously
damaged Respondent's ability to protect its own proper-
ty. It would have had the effect of demonstrating that
Respondent was ignoring another employee's claim that
he witnessed a theft of company property and thereby
discouraging future employee disclosure of similar evi-
dence.
The above convinces me that Respondent's action
against McCray on May 1, 1981, was reasonable under
the circumstances apparent to Respondent at that time. I
find no basis for determining that Respondent's asserted
grounds for the discharge of Derrick McCray were pre-
textual. Moreover, there was nothing in the record
which would justify finding that Respondent's actions, in
hindsight, were unreasonable. I recommend that the
8(a)(3) allegation be dismissed. See H. M. Patterson &
Son, 244 NLRB 489 (1979); General Electric Co., 253
NLRB 1189 (1981); Houston Coca Cola Bottling Co., 256
NLRB 520 (1981).
B. The 8(a)(1) Allegations
1. Plant Manager Grover Mixon
Former employee Athelia Blanks testified that she was
called into Mixon's office in February 1981. Blanks testi-
fied:
When I came in I asked the question, did I do any-
thing wrong, you know, for him to call me in. And
then he said "No," that he wanted to talk to me,
and he asked me was I aware that there was a
union going on, you know, trying to get in the
plant, and I told him "no" at the time. And he said
682
PHOENIX GLOVE CO.
that he would appreciate it that I didn't get in-
volved with the union and to let him know if I
knew anything that was going on.
Blanks testified that subsequent to the above conversa-
tion, but before she signed a union card on March 8,
1981, she went to Mixon's office. She went in and told
Mixon that she "knew some people who were trying to
get me to participate in this union." Blanks testified that
she gave Mixon some names including Derrick McCray
who was the "main one trying to get [her] to join this
union."
Mixon recalled having a conversation with Athelia
Blanks about the Union around February 1981. Mixon
testified that he expressed Respondent's opposition to a
union and that Respondent would do everything legally
possible to keep the Union out. Mixon testified that he
did not ask Blanks how she felt about the Union. He
denied that he asked Blanks to let him know if she heard
anything about the Union.
Discussion
With the exception of Mixon's denial that he asked
Blanks to let him know if she heard anything about the
Union, Mixon did not deny material aspects of Blank's
testimony.6 Athelia Blanks appeared to respond candidly
to cross-examination. I was impressed with her demean-
or. Her admission that she revealed names of union push-
ers to Mixon lends support to her credibility for several
reasons. Firstly, her version of that second conversation
was not denied. Secondly, her testimony reveals a will-
ingness to disclose actions which would have appeared
reprehensible to union supporters (i.e. disclosing their
names to management). And lastly, it is supportive of her
first conversation by showing that she followed up on
Mixon's alleged request that she let him know anything
that was going on.
On the other hand, Mixon, who admittedly called in
Respondent's employees and discussed the Union with
each in one-on-one conversations, testified that he did
not recall all the particulars of his conversation with
Blanks. Mixon's candor appeared limited to those matters
which would not constitute a violation of the Act. I was
more impressed with Blanks' testimony and her demean-
or than that of Mixon, and I shall credit her version of
the two conversations.
Conclusion
The credited evidence reveals that Mixon called
Blanks into his office where she was obviously uncom-
fortable. Blanks demonstrated her discomfort by asking
Mixon "did I do anything wrong." Mixon then asked of
her awareness of the union campaign to which Blanks re-
plied no. Subsequently, Blanks was asked to let Mixon
know if she learned anything that was going on. The
total context of that conversation, including its location,
convinces me that Mixon's actions were coercive. I find
that he interrogated Blanks about her knowledge of the
Although Mixon denied asking Blanks how she felt about the Union,
Blanks did not contend such a question was asked. In fact, on cross-ex-
amination, she testified that Mixon did not ask her how she felt about the
Union. Mixon did not deny asking Blanks about the union campaign.
union campaign and solicited her to report to him about
the employees' union activities in violation of Section
8(a)(1). See Conwvalescent Emory Home, 260 NLRB 540
(1981); E. I. DuPont de Nemours & Co., 257 NLRB 139
(1981); Custom Trim Products, 255 NLRB 787 (1981).
Former employee Nancy Frazier testified that she was
called to Grover Mixon's office in March 1981, where
she met with Mixon and Production Manager Roger
Hughes. Frazier's testimony was as follows:
A. He told me to have a seat and asked me how
I was doing, and I was asked about the company;
was I happy there, what did I think about the com-
pany . . . .
Q. Who is asking these questions?
A. Grover Mixon, and I said everything was all
right; I didn't have nothing to say. He said "Well,
you know there's a union trying to come in, and
I'm going to tell you plain . . ." or, he said "We
don't want it."And he asked me did I have anything
to say, and I said "no, no comment," and that was
it.
Q. You state that in that conversation he asked
you if you knew about the union?
A. Yes.
Q. What did you reply?
A. "No comment."
Q. After he asked you if you knew about the
union and you replied "No comment" do you recall
anything else being said?
A. No, all I remember is that he said "Well, you
know there's a union been trying to come in." And
he said "We don't want it."
Q. Do you recall anything else being said in that
conversation?
A. No, other than what I said, recited the first
time. He asked, you know, was I happy there and
things like that. He asked was I happy there, "...
and so everything is all right? You're satisfied with
your position?", like that. I said "Everything is all
right." I didn't have nothing to say, and then he
brought on about the union, and that's when, after
that he said "Well, you know that there's a union
trying to come in." And he said "We don't want
it." And I didn't say anything. He said, he asked me
did I have anything to say, and I said "No." He
told me to go ahead home, you know, "Thank
you," but for me to go back to work.
Although, as shown above, Frazier responded to the
General Counsel's question, "did Mixon ask you if you
knew about the union?" in the affirmative, she subse-
quently clarified her testimony to show that Mixon actu-
ally said in that regard, "Well, you know there is a union
trying to come and we don't want it."
Grover Mixon admitted talking with Frazier in March
about the Union. Mixon testified that he told Frazier of
Respondent's position regarding the Union. He denied
asking Frazier how she felt about the Union.
683
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion
There appear to be no material conflicts in Frazier's
and Mixon's testimony regarding their March meeting.
Therefore, I shall credit Frazier's version which was
more complete.
Conclusion
I find nothing in Nancy Frazier's version of her con-
versation with Mixon and Hughes in March 1981 which
reveals that she was coercively interrogated about the
Union. Her testimony reveals nothing more than Mixon
telling her that Respondent was opposed to the Union. I
find that Mixon and Hughes did nothing violative of
Section 8(aXl) on that occasion.
Former employee Linda Joy Casselman testified that
she was called into Mixon's office in late March 1981.
Casselman's testimony was as follows:
When I walked in he greeted me and told me to
have a seat and got directly to the point about
knowing the union was trying to come in, and then
he went on to tell me that we didn't need it, that
we were one big family out there, and if we ever
had a problem to come to him or Mr. Gallaher, or
to head supervision if need be, that he didn't want
the union in and he would do everything legally
possible to keep it out of the plant.
Mixon did not recall talking with Casselman. Howev-
er, on cross-examination he admitted that he was not de-
nying the conversation.
Discussion
Since her testimony was undenied, I shall credit Cas-
selman's testimony as to her March conversation with
Grover Mixon.
Conclusion
Although Casselman's testimony does not reveal inter-
rogation, it is clear from Mixon's comments that he was
asking Casselman to bring her grievances to management
rather than bringing in a union. In view of the other evi-
dence revealing that Respondent solicited employee
grievances on other occasions and took steps to remedy
those grievances, I find that Mixon's request in March
for Casselman to come to him or President Gallaher
with her problems constitutes an 8(a)(1) violation. K-
Mart Corp., 255 NLRB 922 (1981).
2. Supervisor Wineglass 6
Linda Joy Casselman testified that she was talking
with her fellow employees in early March 1981 about
the Union, when:
Mr. Wineglass walked up and I continued to go on
about it, telling her, and he said that we did not
' In its answer Respondent denied that Wineglass was employed at the
time of his alleged violation. At the hearing the General Counsel amend-
ed the date of the allegation and Respondent admitted that Wineglass
worked for Respondent in March 1981.
need a union, that we would be messing up if we
got one.
Wineglass did not testify.
Conclusion
In view of there being no rebuttal, I shall credit Cas-
selman's testimony. Wineglass' comment "we would be
messing up if we got one," reveals an unspecified threat
that employees would suffer if they selected the Union. I
find that comment constitutes an 8(a)(1) violation. See Le
Roy Fantasies, Inc., 256 NLRB 211 (1981); St. Anne's
Hospital, 245 NLRB 1009 (1979); Cone Mills Corp., 245
NLRB 159 (1979).
3. Jimmy Washington
Athelia Blanks testified about a conversation she had
with Supervisor Washington at the plant in the packing
room in March 1981. Blanks recalled:
Well, I had went to Jimmy, and I asked him now
that he was a supervisor how did he feel about the
union, and he told me that his feelings had changed
because of his position, and for my own good, for
me not to talk about it anymore.
Washington did not testify. I shall credit Blanks' testi-
mony in view of her testimony being unrebutted.
Conclusion
Washington's comments to Blanks clearly imply that
Blanks should not discuss the Union under the threat
that she would personally suffer. That, as alleged, consti-
tutes an 8(aX)(1) violation. Statler Industries, 244 NLRB
144 (1979); Production Stamping, 239 NLRB 1183 (1979);
Dillingham Marine & Mfg. Co., 239 NLRB 904 (1978).
4. Roger Hughes
Derrick McCray
McCray recalls a conversation with Production Man-
ager Hughes in March 1981. McCray testified:
A. Well, he came to me outside of the plant and
he said "Derrick, can I talk to you," or "I want to
talk to you."
And I told him "yes." And so on the outside of
the plant they've got some benches over, maybe 100
feet or more or less from the building, normally,
where you can go out on a nice sunny day, or a
warm day, and eat on your break.
So we walked over to the benches and we sat
down and he started to talk to me. He said "Der-
rick, you know, you are a bright kid and you have
potential," but I had to stop politicing for the union,
and that he was concerned and he wanted to help
me if I was getting caught up with the wrong
bunch.
And I told him that I wasn't politicing for the
union on company time, that I was doing it on my
personal time.
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PHOENIX GLOVE CO.
Q. Do you recall anything else being said in this
conversation?
A. Not at this time, except for he told me that if
I didn't stop politicing for the union that he was
going to make me work my regular shift; that he
wasn't going to, you know, he was going to cut out
working during the week, so I guess he was going
to cut out the overtime I was making and just let
me work the 24 hours.
Subsequently, McCray had another conversation:
Well, he stopped me and he asked me why didn't I
go in to talk to Grover abut the supervisor's job,
and I told him that I wasn't interested. And he told
me, he said I needed to go in and talk to him or
either see what it was about, but I never went to
see what it was about.
Hughes admitted talking to McCray outside the plant
in March 1981. However, Hughes' version of that con-
versation differed from McCray's:
A. I don't remember the exact wording of the
conversation. I remember the basis of the conversa-
tion. The basis of the conversation was that Derrick
had been observed by myself not being in his work
area during time when he was supposed to on sev-
eral occasions, and I had talked to him at that time
about that and told him that he had to stay in his
work area doing his job and he couldn't be wander-
ing around talking or whatever.
Q. Was anything said about the union in this con-
versation?
A. Not that I recall.
Q. Is there anything else that you can recall
during the conversation?
A. Derrick had talked to me about trying to get
some extra work and that was the reason that he
was working during the week and I had come upon
Derrick outside of the area talking three or four
times, and I said to Derrick, "you are going to have
to start staying in your work area, you are going to
have to stop being out of your area, and start doing
your job during the time that you are supposed to
be." I don't remember a lot of details about any-
thing else.
Q. Anything else that he might have said during
the conversation?
A. He said something. He said some things about
working for a former employee but I don't remem-
ber really exactly all of the wording he said.
Q. During this conversation, did you ever tell
him that he just stop "politicing for the union?"
A. No.
Q. Did you make the statement to him, If you
don't stop politicing, I will make you work just
your regular shift?
A. I could have told Derrick that if he didn't
start doing his job he wouldn't be able to work any
extra during the week. But I don't remember exact-
ly the wording that I used.
Conclusion
Roger Hughes impressed me as a witness primarily in-
terested in protecting his employer's interest. Through-
out his testimony, including portions of his testimony
noted above, Hughes evidenced reluctance to recall any-
thing detrimental to Respondent's interest. I find that this
testimony was not reliable in consideration of the entire
record.
However, the testimony of Derrick McCray also pre-
sented credibility difficulties. McCray admitted making a
false statement that he received no funds from the Union
in his pretrial affidavit to the Regional Office. Moreover,
McCray was evasive on cross-examination. In view of
the above, I am unable to credit McCray's testimony.
Since the burden of proof rests on the General Counsel,
I find that the evidence in support of the allegations re-
garding Hughes' conversation with McCray must fail.
5. Billie Bell Gamble
Gamble testified to a conversation she had with Roger
Hughes in his office on the Wednesday before the elec-
tion in June 1981:
He called me into his office and he asked me if I
had any kind of problems, and I told him that I
didn't, and he told me, he said that I didn't need a
union to come in and speak for me. He said that I
could talk for myself, and that he didn't want the
union in, you see, because we didn't have to pay a
union to, you know, talk for us; that we could do
that for ourselves.
Around noon that same day Gamble had a second
conversation with Hughes. This conversation occurred
outside the packing room. Gamble testified that she
stopped Hughes and:
I asked him could I come in early that Thursday
morning to get off for the funeral, and he told me,
he said that I couldn't come in early, that; and he
said I couldn't come in early and leave early. So he
told me, he said he would let me get off if I was to
talk to the girls about not joining the union, and he
asked me not to talk to anybody else concerning the
conversation we just had, and I was supposed to
not tell Marcella Grant and Gloria Nesmith.
Q. Who are Ms. Grant and Gloria Nesmith?
A. These are two employees at Phoenix Glove.
Q. And what did you say?
A. I told him "All right."
Hughes testified that he did not recall, but could have
had, the first of the conversations recalled by Gamble.
As to her testimony regarding the second conversation,
Hughes testified:
A. I think I did. I think she asked me if she could
get off early, and the next day, I think I do remem-
ber having a conversation about that, I think she
asked me if she could come in early and get off
early, or something along those lines, a lot of
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people ask me that and I think that I remember B.B.
asking me that.
I said, I think I said "I will see what I can do,
B.B., you know, if I have got somebody to cover
for you" but I remember, I remember something
about her asking me "could she come in early" and
I told her "no, she couldn't." I didn't have anything
for her to do if she came in early.
Q. Do you recall making a statement to her that
"you would let her off if she would talk to the
other girls about not joining the union?"
A. No, I didn't say anything like that.
Q. You are sure you didn't say that?
A. I know I wouldn't, I know I didn't say that.
Discussion
As noted above, I am unable to credit Roger Hughes'
testimony. I was generally impressed with Billie Bell
Gamble's testimony. However, I note that Gamble's pre-
trial affidavit to the Region evidenced a more detailed
recollection of her conversation with Hughes than her
testimony at the hearing. Of course, that affidavit which
she gave on July 31, 1981, was made at a point in time
much closer to the events than was her hearing testimo-
ny. With that in mind I have decided to credit her affida-
vit7 version of the second Hughes conversation:
Later that Wednesday about 12 noon, I stopped
Hughes outside the packing room door. No one else
was present. I asked could I leave early on Thurs-
day because I wanted to go to a funeral. I wanted
to come in early so I could leave early. He told me
he would check it and see what he could do. He
said he couldn't let me come in early and leave
early. He said he would work out something. He
said he would let me get off early but I couldn't tell
no one and not to mention what he was going to do
to Nesmith and Grant. I said O.K. I wouldn't tell
them. He then said he needed my help. He said he
wanted me to talk to the girls about not joining the
Union. I said O.K. That was all of that conversa-
tion.
Conclusion
The credited evidence reveals that Production Manag-
er Hughes asked employee Gamble to assist Respondent
in soliciting other employees not to join the Union. That
request was coupled with Hughes granting a favor to
Gamble, a favor which Hughes, by asking Gamble not to
reveal it to other workers, implied it would not be avail-
able to all employees. The implication was obvious,
Hughes was in effect saying, I am taking care of you,
now you do something for me. Gamble was thereby
placed in the dilemma of agreeing to talking against the
Union or risk the withholding by Hughes of future
favors. As presented, I find a violation was proved.8
7 Alvin J. Bart Co., 236 NLRB 242 (1978).
8 See par. 8() as amended at the hearing (Tr. 5). Apple Tree Chevrolet,
237 NLRB 867 fn. 2 (1978); Lammert Industries, 229 NLRB 895 (1977);
C Markus Hardware, 243 NLRB 903 (1979).
The "Point" Meetings
The complaint alleges that Respondent violated Sec-
tion 8(aXl) by soliciting employee grievances and by
promising a raise and other benefits. Evidence was re-
ceived showing a relationship between those allegations
and meetings involving several employees with Grover
Mixon and Roger Hughes.
Linda Joy Casselman, who started working for Re-
spondent in April 1980, testified that she attended meet-
ings between management and employees before and
after the union organizing campaign. Before the cam-
paign the meetings usually involved three employees and
one supervisor. Afterwards, the meetings involved six
employees and Grover Mixon, the plant manager.
Casselman recalled a meeting in February 1981.
Grover Mixon conducted the meeting. At the beginning
Mixon bought the employees cokes. Casselman testified
that the employees were not given cokes in previous
meetings. Casselman stated that various suggestions were
made by the employees in the February 1981 meeting
and that Mixon noted those suggestions. Those sugges-
tions included a request that a microwave oven be in-
stalled for employee convenience on lunchbreaks, for up-
dating material books for warehouse stock, for employ-
ees to be permitted to leave the facility during their 30
minute-lunchbreak and for a pay raise. According to
Casselman, a microwave oven was installed after the
meeting and employees received a pay increase.
Athelia Blanks attended a meeting held by Mixon in
1981, during which Mixon showed the employees on the
second shift charts on how the employees would be get-
ting pay increases. Mixon told employees that if they
"gave the plant a chance to grow" the employees would
be getting raises.
Nancy Frazier testified that she attended a meeting in-
volving 12 employees and Roger Hughes in the office
next to the packing department in March 1981. Frazier
recalled the employees were asked if they had problems
or suggestions and they asked Hughes:
When would the lines be put up and when would
the parking lights be put up, and about the bath-
room and we needed a new machine, a vending ma-
chine, because one was always taking our money or
never being filled.
Hughes informed the employees "that they would work
on it." According to Frazier the Company subsequently
put the employees' suggestions into effect by cleaning
the bathrooms two or three times a day, putting in one
or two new vending machines, and putting up lights and
parking lines in the parking lot.
Production Manager Hughes testified that in 1980 Re-
spondent held meetings involving two or three employ-
ees and one of the supervisors, during which working
conditions were discussed and the employees were asked
what they needed. Hughes testified those meetings
would be held in "spurts" with three or four held, then
going 2 or 3 weeks or a month. Hughes recalled that Re-
spondent converted from window air conditioning "in
the strip," to duck type air-conditioning because of em-
686
PHOENIX GLOVE CO.
ployee suggestions in those meetings. Also employees'
suggestions resulted in Respondent enlarging the cafete-
ria area. Hughes recalled that Grover Mixon purchased a
larger refrigerator because of employee suggestions.
On cross-examination Hughes testified that he was sure
that part of the decision to expand the cafeteria was
based on the fact that Respondent had expanded oper-
ations by putting in a second glove production line. It
was also brought out on cross-examination that the first
written memo, which Hughes was able to locate, of em-
ployee meetings was dated February 1981. Hughes ad-
mitted that those so-called three point meetings, those
with three employees, stopped during the union cam-
paign and meeting with larger groups of employees start-
ed. Those meetings with large groups were conducted
by Grover Mixon.
Hughes admitted attending a meeting with employees
in March 1981, during which Grover Mixon showed the
employees charts and explained that if the Company
grew they would try and give the employees wage in-
creases and improved benefits. Hughes testified that he
did not recall attending a meeting with 12 employees in
March 1981 in the office next to the packing room,
during which the Union, Respondent's bathrooms, and
the parking lot were discussed. However, Hughes admit-
ted that he could have told employees in a meeting that
they would try to do something about the lights in the
parking lot.
Grover Mixon testified that he held meetings for the
employees beginning in 1979. Mixon stated those meet-
ings were sporadic. Mixon testified that he tried to hold
one-on-one meetings or meetings with two or three em-
ployees, at their work stations. However, from the
summer until November 1980, Respondent was installing
a second glove machine and Mixon's time was limited, so
he did not have any employee meetings.
Mixon agreed that the 1980 formal meetings, which
were called point meetings, were conducted by direct su-
pervisors of involved employees. Mixon's initial involve-
ment in the point meetings was evidenced by a memo to
all employees dated March 3, 1981. That memo solicited
employee comments, questions, or suggestions and indi-
cated the meetings would begin on March 4. Mixon ad-
mitted that he held those meetings and that he sometimes
opened the meeting by buying employees Cokes or 7-
Ups. Mixon admitted that Respondent made changes fol-
lowing employee suggestions regarding vending ma-
chines, cleaning restrooms, and lines in the parking lot,
but he testified that he did not recall when those changes
were made.
Grover Mixon was subsequently recalled and testified
from Respondent's "Fixed Asset and Depreciations
Schedule" as to specific items which he contended Re-
spondent purchased pursuant to employee comments and
suggestions made in meetings in 1980 and before. Those
items included tote tanks which are used for transporting
plastisol, air hoses, and vacuum cleaners for cleaning up
on the lines, a refrigerator for employees' lunches, a
work bench and stool, a heater for a work area, employ-
ee lockers, electric clocks, and a chain hoist for machine
operators. According to the records, all the above items
were purchased in the second half of 1980.
Respondent also produced a notice to employees dated
January 23, 1980, advising that "employee informational
meetings will be held Thursday, January 24."
Conclusion
The testimony regarding the "point meetings" presents
little conflict. I credit the undisputed testimony which il-
lustrates that point meetings of six or more employees
were initiated in 1981, after Respondent learned of the
union campaign. I also credit the above-mentioned evi-
dence showing that although informational meetings
were held in January 1980, and other point meetings
were held in 1980, those meetings differed from the 1981
meetings.
The informational meetings involved larger groups and
there was no evidence showing that those meetings re-
sulted in solicitation of employee suggestions, comments,
and questions. In fact, Grover Mixon specifically testified
that the employees' suggestions, which resulted in pur-
chases by Respondent, occurred in "small group meet-
ings."
The 1980 point meetings were conducted by the direct
supervisors, not by Grover Mixon. I credit Mixon's ad-
mission that he first became involved in the point meet-
ings in March 1981. Although the record does show that
purchases were made in the second half of 1980 and that
those purchases followed employee suggestions, I note
from Mixon's testimony that all those items, with the ex-
ception of a used refrigerator, related to productivity as
opposed to items solely for employee benefit and com-
fort.
On the other hand, once the union campaign started,
Grover Mixon personally conducted six point meetings.
Unlike prior situations, the memo advising of the March
1981 meetings solicited employees' suggestions, com-
ments, and questions. Those employee comments resulted
in improvements in the parking lot with both lights and
parking lines, in increased vending machines, cleaner
restrooms, and a microwave oven for the employees'
convenience. None of those improvements directly in-
volved productivity.
The above, and the entire record of credited evidence,
convinces me that Respondent initiated a new program
of soliciting employee grievances, complaints, and sug-
gestions in March 1981. The proximity of that new pro-
gram to Respondent's admitted first knowledge of its
union organizing activities in February 1981 is obvious.
Therefore, I find that Respondent solicited employee
grievances after the union campaign started in violation
of Section 8(a)(1). Moreover, the benefits conferred on
employees, admittedly as a result of those employee
comments including lights and lines in the parking lot,
cleaner bathrooms, added vending machines, and a
microwave oven, constitute additional 8(a)(1) violations.9
9 Stride Rite Corp., 228 NLRB 224 (1977); Cutting, Inc., 255 NLRB 534
(1981); Parkview Acres Convalescent Center, 255 NLRB 1164 (1981); K-
Mart Corp., 255 NLRB 922 (1981); Town & Country Supermarkets, 244
NLRB 303 (1979); Arrow Molded Plastics, 243 NLRB 1211 (1979).
687
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Pay Increases
It was not disputed that Respondent's employees were
granted a pay increase in May 1981, following an April
announcement that the increase was forthcoming. An in-
crease was requested by the employees during the six
point meetings which started in March 1981. Grover
Mixon testified that the wage increase was announced on
April 13, 1981.
Previously, Respondent's employees received a wage
increase in December 1980. According to Grover
Mixon's recollection that increase was effective on De-
cember 15, 1980. Mixon testified that he told the employ-
ees in December 1980 that their wages and benefits
would be reviewed and changes would be made at least
every 6 months if it were possible.
In deciding to grant the May 1981 increase, Mixon tes-
tified that he considered Respondent's performance in
the first quarter of 1981 and in 1980.
According to Mixon, he first discussed the prospect of
the May 1981 increase with Respondent's president, Gal-
laher, in February and March 1981.
President Walter Gallaher testified that, before Febru-
ary 1980, he had conversations with Grover Mixon re-
garding the wage rates in comparison with other indus-
tries that compete with Respondent for quality employ-
ees. Gallaher expressed that it was his opinion, his and
Mixon at that time, that they needed to increase the
wage rates as rapidly as they could within the range of
their ability.
Gallaher testified that he prepared a production cost
estimate which included labor cost, in early 1980, and at
that time it was his intention to grant a wage increase in
mid-1981.
Subsequently, according to Gallaher, he and Mixon
discussed wages in November or December 1980. At
that time Mixon was preparing to announce the Decem-
ber 1980 wage increase. Gallaher testified that at that
time Respondent had experienced a good third quarter
1980, and it was clear "we were going to have a better
fourth quarter of 1980." Gallaher authorized Mixon to
discuss the fact that Respondent would make another
wage increase as early as it could in 1981.
Gallaher testified that around April 8 or 10, 1981,
shortly after conclusion of the first quarter in 1981,
Grover Mixon was anxious to announce a wage increase.
Gallaher admitted that it was obvious at that time "there
was labor activity within our plant and at that point, I
told Mr. Mixon that I could not make a decision until I
talked with counsel." On that day or the next, Gallaher
talked with his labor attorney. He was advised to pro-
ceed with the wage increase if he would have done so
without the "outside pressure." Gallaher "immediately
authorized Mr. Mixon to go ahead with the increase."
As mentioned above, Mixon made that announcement on
April 13, 1981.
On cross-examination, Gallaher admitted that his early
1980 cost estimate which was made regarding a Farmers
Home Administration loan package projected a wage in-
crease after the second quarter 1981. Gallaher testified
that projection never changed until the increase was
granted after the first quarter 1981.
Conclusion
The general test regarding wage increases during an
organizing campaign involves query into whether the
employer would have granted the increase absent the
employees' union activity. The Board has considered
whether the increase was planned at a point before the
Union, and whether the increase was given in accord
with establish practice. It is well recognized that across-
the-board wage increases during organizing campaigns
constitute one of the most effective antiunion weapons.
Therefore, those increases must be subjected to critical
examination.
Here the testimony of Gallaher and Mixon illustrate
that when the December 1980 increase was granted they
were aware that both the third quarter, 1980, had been
profitable and that the fourth guarter, 1980, which was
nearing conclusion, was going to be profitable. At that
time, as shown on Respondent's documents prepared for
a Farmers Home Administration loan and through Gal-
laher's testimony, Respondent did not anticipate granting
another raise until after the second quarter of 1981. That
projection appears in line with what Mixon apparently
told the employees before their December 1980 raise.
The employees were told their wages would be re-
viewed and raises granted when the Company was able,
at least every 6 months.
Subsequently, two material factors intervened between
the end of 1980 and the end of the second quarter 1981.
Firstly, Respondent had a profitable first quarter. How-
ever, there was no showing that the first quarter of per-
formance was unexpected. In fact, that quarter showed a
continuation of profitable quarters from the last half of
1980. Moreover, there was no projection by Respondent
or comments to employees or others demonstrating any
plans before April 1981 to grant another raise before the
end of the second quarter of 1981.
Secondly, there was the intervention of the union cam-
paign. As shown in the previous section of this decision,
Respondent thereupon initiated a series of employee
meetings designed to precipitate employee comments,
questions, and suggestions. One such comment, which
surfaced frequently, was a request for higher wages.
I am convinced on the basis of the record evidence
that, but for the union campaign, Respondent would not
have granted its employees a wage increase in May 1981.
The testimony of President Gallaher proved that the
May increase was first considered after the employees
union activity became obvious and after the March 1981
employee "point meetings" resulted in employees re-
questing a raise. Once the increase was proposed by
Mixon on April 8 or 10, Respondent moved swiftly to an
April 13 announcement that the increase would go into
effect the following month. The proximity of that an-
nouncement to the climax of the employees' union activi-
ties is illustrated by the timing in relation to the Union
filing its petition for an election on April 9, 1981.
I find that Respondent granted the May increase in
wages during its employees' organizing campaign in vio-
lation of Section 8(a)(1) of the Act. Jefferson National
Bank, 240 NLRB 1057 (1979); Van Pelt Fire Trucks, 238
688
PHOENIX GLOVE CO.
NLRB 794 (1978); Advanced Mining Group, 260 NLRB
486 (1982); Colorado Forge Corp., 260 NLRB 25 (1982).
D. The Employer's Objections
By order dated December 31, 1981, and January 11,
1982, the Board directed a hearing on Objections I and
3(a); 1 and 3(b); 1 and 3(e); 2 and 6(a), (b), (c); and 10.
Those objections are outlined in the Report on Objec-
tions issued by the Acting Regional Director for Region
11 on August 19, 1981, as follows:
1. Objections I and 3(a) and (b)
(a) An Employer witness alleges that on or about
the middle of the week of the election she and
other second shift employees were in the packing
room talking when a female union supporter,
whom the Employer witness refuses to name,
told the Employer witness that she better be
careful how she voted because she just got a new
car. This Employer witness alleges that a second
Employer witness was present. This second Em-
ployer witness denies that she heard any female
union supporter make this statement to the first
Employer witness.
(b) An Employer witness alleges that employee-
union supporter Derrick McCray asked him, on
or about a week before Easter if he decided to
sign a union card. When the Employer witness
responded no, that he was still thinking about it,
McCray stated if he didn't sign one, he was going
to ram him down.
An Employer witness alleges that in June before
the election, employee-union supporter Willie
Lee Hannah told her if she didn't stop going
around telling people to vote against the union
that he would get her. Further, he said she better
shut her mouth or he would get her. Shortly
thereafter, during that same work shift, Hannah
told this Employer witness that she was going
around telling people to vote no and she had
better shut her mouth if she knew what was best
for her. This Employer witness alleges that
Hannah, on two or three occasions away from
the plant in April, May and June, told her that
she better shut her mouth and stop telling people
to vote no or else he was going to get her.
An Employer witness alleges that about the
middle part of April, Derrick McCray and Willie
Lee Hannah talked to her about signing a union
card. When the Employer witness told them no,
McCray replied if she didn't they were going to
get her. He also said she better stop telling
people to vote no or they would get her.
An Employer witness alleges that beginning in
April and continuing up until the election, she re-
ceived anonymous telephone calls at her home
about twice weekly. She did not recognize the
male callers who would breath heavily into the
phone and slam down the receiver. On other oc-
casions the male caller would say "we are going
to get you." On one occasion the male caller,
whom the Employer witness recognized as either
Derrick McCray or Willie Lee Hannah, said if
she didn't stop going around telling people to
vote no, that they were going to tell her husband
about her having an affair with another man.
An Employer witness alleges that on June 19,
Willie Lee Hannah told her he hoped she knew
that someone would be waiting down the road
for her.
An Employer witness alleges that on June 17,
Willie Lee Hannah told her that if the union got
in, the union would find out the employees who
voted no and were against them, and these em-
ployees would be fired. Hannah said that the Em-
ployer witness especially would be fired.
2. Objections I and 3(e)
An Employer witness alleges that the same week
Derrick McCray was fired, McCray accused him
of ratting on him. When the Employer witness
denied this, McCray stated if he found who
ratted on him and he got fired, he would take
that person with him.
This same Employer witness alleges that in late
April, an employee friend and nonunion support-
er informed him that he heard around the plant
that McCray said if he found out who caused
him to get fired, he would kill that person be-
cause it would cost him only two years in jail.
3. Objection 2
The union and its agents threatened supervisors
and management representatives of the Company
with reprisals of force and otherwise intimidated,
harassed and coerced them.
4. Objections 6(a), (b), and (c)
(a) An Employer witness alleges that in April
and May, employee-union supporter Willie Lee
Hannah told her and other employees that if the
Union did not win the election, the Union would
turn over the union cards to the Company and
the Company would find out who signed union
cards and they would be fired. Hannah stated if
the Union did get in, then the employees that
were against it would be fired.
An Employer witness alleges that on or about the
last week in April, Willie Lee Hannah, a black
female union representative, and AFL-CIO field
representative George Kiser visited her home.
The Employer witness alleges Kiser stated that if
the Union did not win the election, the Company
would find out who signed union cards because if
the Company asked, the Union would probably
have to turn over these cards and the Company
would try to fire these employees.
(b) An Employer witness alleges that about a
week before the election, employee-union sup-
689
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porter Nat Brown told her and other employees
seated at a picnic table outside the plant that
when they went to vote, that they better know
how to vote because if they didn't vote right,
they (Company) was going to fire them by next
year and hire more people to take their place.
The Employer witness alleges that a second Em-
ployer witness was present. This second Employ-
er witness denies that she heard Nat Brown make
this statement to employees seated at the picnic
table.
(c) An Employer witness alleges that she heard
second and third shift employee-union supporters,
whom she could not identify, state that if the
Union did not get in, and employes then missed
too many days, they would get fired but if the
Union was in, employees could go to them and
the Union would help employees from getting
fired.
A second Employer witness alleges that on the
day before the election she received a telephone
call at home from a male caller who identified
himself as a union representative. This Employer
witness alleges that this union representative told
her if she stayed out sick, the Company would
fire her but if she voted for the Union, the Com-
pany would not be able to fire her.
A third Employer witness alleges that in April
prior to Easter, she was visited at her home by
union representative Verney Cumbee, employee
Derrick McCray, and an elderly white union rep-
resentative previously identified as AFL-CIO
field representative, George Kiser. The Employer
witness alleges Kiser stated if she joined the
Union, she would have security and she could
not be fired.
5. Objection 10
In support of this allegation, the Employer pre-
sented a witness who alleges that on the day
before the election, she received a telephone call
at home from a male caller who identified himself
as a union representative. This Employer witness
alleges that the Employer issued to employees
two paychecks that day, the second paycheck
representing the amount of union dues payable by
the employee. The Employer witness further al-
leges that the union representative told her what
the Company said about union dues was a lie. He
stated that the union dues would be $2.00 per
week but that she would not have to pay it and it
would not be coming out of employee paychecks
because the Company would have to pay it for
her.
As noted above, the record reveals that the Union's
organizing campaign at Respondent's Andrews facility
commenced around December 1980. The petition in Case
11-RC-4990 was filed by the Union on April 9, 1981.
The Union prevailed in an election conducted by Region
11 on June 19 and 20, 1981. The election resulted in the
Union receiving 102 votes, 52 votes were cast against the
Union and 3 votes were challenged. The Employer filed
timely objections.
During its campaign the Union employed a number of
admitted agents including James Johnson, George Kiser,
Verney Cumbee, Louis Washington, Ruby Rose, and
Clayola Brown. Also, for a time during May and June
1981, the Union employed former employee Derrick
McCray. James Johnson testified that the Union paid
McCray a small salary in order to "give [McCray] some
income that he could both continue to work on the cam-
paign on and sustain the bare, you know, to sustain life."
A consensus of the evidence demonstrated that various
union representatives including George Kiser and
Verney Cumbee attempted to form a union organizing
committee among the employees supporting the Union.
While those efforts were never fully successful and no
effort was made to notify Respondent of the names of
the employees on the organizing committee, the evidence
reveals, and I find, that an informal organizing commit-
tee was formed. The Union used the employees on the
committee, which included Derrick McCray and Willie
Lee Hannah, to assist in soliciting cards, contacting em-
ployees, oftentimes at the employees' homes, and to relay
information about occurrences at Respondent's facilities
to the Union.
Objections I and 3(a)
In support of this objection Respondent called employ-
ee Rosetta Brown. '
"' Respondent also identified witness Mary Ann McKnight as a wit-
ness called in support of Objections I and 3(a), and in support of Objec-
tion 6(b). Regarding McKnight's testimony allegedly in support of Objec-
tions I and 3(a), I permitted Respondent to make an offer of proof by
questions to McKnight. I then rejected that offer as being outside the
scope of the objection matters which I was directed to hear. Moreover,
McKnight's testimony was found by me to fall within the scope of Ob-
jections I and 3(c) which the Region and the Board overruled. I hereby
reaffirm my ruling in that regard. However, in the event my ruling may
be overturned, I shall now consider McKnight's testimony. McKnight's
pretrial affidavit testimony given to the Regional Office identifies the
conversation at issue, which involved employee Maxine Eddy, as occur-
ring after the election and, therefore, outside the critical period. More-
over, McKnight's specifically stated, in that pretrial affidavit, that "at no
time prior to this Monday after the election did Eddy say anything to me
personally or in my presence that employees voting against the union
would be fired." Her pretrial affidavit to the Region was given on July
15, 1981.
On June 26, 1981, McKnight submitted an affidavit to Respondent
during which she made the following statement, inter alia, "Before the
election, Maxine Eddy told many people on second shift that they had
better vote for the union, that if they did not, they would be fired."
Although McKnight testified at hearing in corroboration with her June
26 statement to Respondent, she also testified that during a conversation
which she then identified as coming before the election, Maxine Eddy
told the employees, among other things, "that the union people would
get the 52 people who voted against them because we don't have no kind
of protection."
Under the circumstances, I could not credit McKnight's testimony.
Her testimony at trial was in direct conflict with her pretrial affidavit to
the Region. Moreover, the substance of the conversation she alleged as
occurring before the election reveals knowledge of Eddy which she
could not have known at that point in time. According to McKnight,
Eddy said the union people would get the 52 people who voted against
them. Obviously, Eddy could not have known 52 people would vote
against the Union at that time. Therefore, if the evidence was before me,
I would discredit McKnight's testimony.
690
PHOENIX GLOVE CO.
Employee Rosetta Brown testified to a conversation in
the packing room at the plant during the week before
the election, involving employees Harrietha Robinson,
Brenda Darby, Mary Ann McKnight, Mary Sue Brown,
Christine Scott, and Billie Bell Gamble. According to
Rosetta Brown, Billie Bell Gamble told her "that I had
better be careful how I voted because I just bought a
new car." Brown said that she replied, "yes, I know and
I intend to keep it." On cross-examination, Rosetta
Brown testified in regard to her pretrial affidavit:
Q. And you told this, you told Billie Bell Gamble
that you didn't want anything to do with the union
because you didn't think that we needed the union,
isn't that right?
A. Yes.
Q. And then Billie Bell Gamble replied, and
laughed and said "you had better be careful how
you vote because you just got a new car?"
A. Yes.
Q. That is correct?
A. Yes.
Q. And you said "yes, I know, I intend to keep
it," is that right?
A. Yes.
Q. And then you say here, "I took it as a joke
first but not too long before this incident, the com-
pany had a meeting with all employees and told us
that some employees were receiving threats con-
cerning the union," is that right?
A. Yes.
Q. And then you say that "after thinking about it,
the company had told us earlier;" strike that; and
then you say "after thinking about what the compa-
ny had told us earlier in the meeting, I started
taking this seriously," you mean you started taking
the idea that people were threatening you seriously?
A. Yes.
Q. And that was an idea that you got from the
company?
A. [No answer.]
Q. At that meeting?
A. Yes.
Q. And then you say "the only place where I
heard that employees were receiving threats about
the union was from the company in the above-men-
tioned meeting?"
A. Yes.
Rosetta Brown also admitted stating that "everyone in
the room heard this conversation."
Former employee Harrietha Robinson admitted that
she was present in the packing room in June 1981 when
Billie Bell Gamble asked employees, including Rosetta
Brown, how they were going to vote. Robinson testified
that she did not remember Billie Bell Gamble saying
"you had better be careful how you vote because you
just got a new car." Robinson also testified in conflict
with Rosetta Brown, that, at the time of that conversa-
tion, she did not know that Billie Bell Gamble favored
the Union.
Although Mary Ann McKnight was called by Re-
spondent, she was not asked and did not testify about the
above conversation even though Rosetta Brown recalled
that McKnight was present. I noticed in McKnight's affi-
davit to the Regional Office she denied that she was
present in the cafeteria and overheard a conversation be-
tween Rosetta Brown and a female union supporter
where the union supporter told Brown that she better be
careful how she voted because she just got a new car.
Billie Bell Gamble denied that she ever told Rosetta
Brown "You better be careful how you vote because
you just got a new car."
Discussion
I have trouble crediting Rosetta Brown's version of
Billie Bell Gamble's comments to other employees. In
consideration of Brown's credibility, I note that Re-
spondent had an opportunity to corroborate her testimo-
ny with other employees but failed to do so. The wit-
nesses called by the Union indicated that Gamble did not
make the alleged comments. Moreover, I am bothered by
Rosetta Brown's admission that it was because the em-
ployees were cautioned about alleged threats from union
supporters during a company meeting, that she conclud-
ed that she may have been threatened by Gamble. Her
testimony reveals that initially she viewed Gamble's
comments as a joke or a light-hearted remark. That testi-
mony by Brown leads me to believe that her reconsider-
ation of the packing room incident may have been
unduly influenced by Respondent's indication that threats
were being made by the Union's supporters. Therefore, I
shall not credit Rosetta Brown's testimony.
Conclusion
In view of my credibility findings, I find that Re-
spondent failed to prove objectionable conduct as alleged
in Objections 1 and 3(a).
Objections I and 3(b), paragraph I
Employee Avis McFadden testified that after she was
first visited at her home regarding the Union by union
representatives Kiser and Cumbee, along with employee
Derrick McCray, she had a conversation with McCray
as she was approaching the cafeteria in the plant, in late
April, before Easter 1981. McFadden testified:
A. Okay, well, I was coming in the cafeteria. He
came up behind me, walking behind me; he asked
me whether I was ready to sign the card, the union
card, and I told him "no, that I was still thinking
about it" and so he told me that he would "ram me
down if I didn't sign the card."
I told him "if I get up, I will get him back."
On cross-examination, McFadden admitted that she
saw McCray socially before McCray's discharge and
that she visited McCray's apartment after he was dis-
charged.
McCray admitted visiting McFadden at her home with
union representatives and he admitted that subsequently
he asked her at the plant to sign a union authorization
card. However, McCray denied that he threatened
691
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McFadden. McCray testified that he and McFadden
dated.
Discussion
McFadden impressed me with her demeanor. She ap-
peared to respond to questions from all the attorneys
candidly. On the other hand, as mentioned above,
McCray admitted making an untrue statement in his pre-
trial affidavit to the Region. I shall credit McFadden's
version of her conversation with McCray at the plant in
April 1981.
Roberta Pipkin's Testimony
Employee Roberta Pipkin testified in support of Ob-
jections I and 3(b), paragraphs 2, 3, 4, 5, and 6; and Ob-
jection 6(a), paragraphs I and 2.
As to Objections I and 3(b), paragragh 2, Roberta
Pipkin testified to a conversation with employee Willie
Lee Hannah. Pipkin, in response to the question of
whether she had a conversation with Hannah in June
1981, stated:
Well, we had so many, okay; between the #1 and
the #2 packing room one day he came up to me
and he told me, he said "that I had better shut my
mouth up; if not, he was going to get me."
Pipkin was subsequently asked by Respondent's coun-
sel if she continued the conversation with Hannah at an-
other place. She replied:
We went over in the, okay, just before, well, I am
trying to tell it like I know, just before Derrick got
fired; I remember Hannah and Derrick; they had
come to me in the cafeteria to try to get me to sign
a card, and I wouldn't and they told me that "if I
didn't sign a card that they were going to get me."
Now back there in June, I remember me and Willie
Lee left out of the Packing Room, #1 Packing
Room; I went in the cafeteria and he came in there
behind me; he told me, he said, "Roberta, I still say,
you know, if you know what is good for you, you
had better keep your mouth shut and stop running
around telling people ... ."
Pipkin was asked if other employees were there where
they could hear Hannah's comments and she replied: "I
don't see why somebody couldn't have heard, but every-
body claims that they didn't hear."
On cross-examination, Pipkin had difficulty recalling
that her above conversation with Hannah occurred in
June. At that time in her testimony she recalled the con-
versation occurred in April or May. Counsel for the
Union then read to Pipkin her affidavits stating the con-
versation occurred on June 17, 1981, and asked Pipkin
whether it occurred in April, May, or in June. Pipkin re-
plied, "I had so much real enemies, good Lordl"
Willie Lee Hannah denied ever telling Pipkin to shut
her mouth up or he was going to get her or telling her
to keep her mouth shut about the Union or we are going
to get you. Hannah testified that he probably asked
Pipkin to sign a card. Hannah stated that he and Pipkin
were friendly to each other during material times. He
testified without rebuttal that on one occasion Pipkin ac-
companied him on a trip to Pawleys Island and that they
stopped along the way to sign up another employee to a
union card. On that trip Pipkin spoke in favor of the
Union but Hannah later heard, near the election date,
that Pipkin had gone over to the Company's side.
Hannah also testified without rebuttal that Pipkin told
him about the hearing saying that, "They had set her
up," that "she didn't know that it was going to happen."
Regarding Objections I and 3(d), paragraph 3, Pipkin
was asked by Respondent's attorney if she recalled a
conversation with Derrick McCray in the plant during
mid April 1981. Pipkin responded:
A. He told me "that I had better shut my mouth
or else they were going to get me" and Hannah also
told me that.
Q. How many times did he tell you that?
A. Several times.
Q. Did you have occasion to see him away from
the plant?
A. Sure, down town.
Q. What did he say to you at that time?
A. Oh, he told me "that I had better keep my
mouth shut or else he would get me."
Q. Is there anything else that you recall McCray
saying during these conversations?
A. No. They just kept saying that "if I didn't
keep my mouth shut that they were going to get
me."
Q. Was anyone else present when these state-
ments were made to you by McCray?
A. Well, a few people, I don't remember like
who they were or who was present at this time.
Q. Do you recall his making the statement to you
in the cafeteria at the plant one day?
A. Yes, sir.
Q. How many employees were present?
A. Okay, like, let me see, between like six and
seven or eight people because when you go to
lunch; we have different sets of groups, you know.
Q. Was this when you were on the Mini Shift?
A. I worked over on graveyard with them, over-
time; if somebody didn't come in, I would work
over.
Q. At this time in the cafeteria, can you recall
who some of these six or seven people might have
been?
A. No, sir.
Pipkin expressed her opinion, "Derrick and them knew
that I was going around talking against the union and
they did not like it, they really did not like it."
Derrick McCray admitted asking Pipkin to sign a
union card but he denied that either he or Willie Lee
Hannah, in McCray's presence, ever told Pipkin that he
or they were going to get her. McCray denied ever tell-
ing Pipkin to shut her mouth. McCray testified regarding
Pipkin's reputation, "You can't believe Bertie." McCray
testified that he did not hear Pipkin speak against the
692
PHOENIX GLOVE CO.
Union but that he heard her speaking in favor of the
Union.
As to Objections I and 3(b). paragraph 4, Pipkin testi-
fied that she received numerous phone calls at her home
during the organizing campaign in which the caller
stated, "you had better shut your mouth up; if not, we
are going to get you." Pipkin alleged she received other
calls in which the caller told her "if you don't keep your
mouth shut like they were going to tell my husband that
I was having an affair with another man." Pipkin said
she received other calls where the caller "breathed heav-
ily" into the phone. Originally, when asked if she could
identify the callers, Pipkin first responded, "Well to me,
I would say that it was Derrick; and Willie Lee; and
why I would say it is because I was having so much
problems with him." At another time in her testimony,
regarding identity of the callers, Pipkin testified, "Well,
it sounded like either Hannah or McCray."' I Pipkin sub-
sequently admitted that she could not actually identify
any of the callers but, "it was a man's voice, a young
man."
McCray and Hannah both denied making calls to
Pipkin as she testified. Hannah testified that he never
called Pipki R. McCray called Pipkin on one occasion but
that was to arrange for him and union representatives to
visit at her house. Both Hannah and McCray testified
that it was common knowledge that Pipkin was seeing a
man other than her husband. McCray testified without
rebuttal that Pipkin's boyfriend stayed with her and
brought her to work and that Pipkin told him and other
employees about her relationship with the boyfriend.
Regarding Objections I and 3(b), paragraph 5 Pipkin
testified that after she served as company observer and
the polls closed that particular voting session, she and
Willie Lee Hannah (the union observer) were walking
away and Hannah said, "I hope you know that some-
body could be waiting on you down the road." Pipkin
stated that she replied, "Oh, yeah? I will see in you in
your yard tomorrow morning."
Hannah admitted that he served as union observer and
that Pipkin was an observer for the Company. Accord-
ing to Hannah, he walked away from the polls either
ahead or behind Pipkin but not with her. He denied tell-
ing Pipkin, "I hope that you know that somebody could
be waiting on you down the road."
Pipkin's testimony reveals that she had voted before
Hannah's alleged threat. Moreover, immediately after her
alleged conversation with Hannah, she went home and
did not return until the election was over. The evidence
failed to show that she told any other employee of the
alleged comment by Hannah before the election conclud-
ed.
Pipkin also testified regarding Objections I and 3(b),
paragraph 6 and Objection 6(a), paragraph 1. She testi-
fied that Willie Lee Hannah would go around a lot tell-
ing employees "we have to get the union in there be-
cause if not that the company, the plant, or company
would find out who all signed union cards and that they
were going to get fired." Pipkin was asked how many
times she heard Hannah make that statement. She re-
" I noticed during the hearing that McCray and Hannah's voices are
not similar.
plied, "That is what he brain-wash a lot of people with,
even Derrick." When asked specifically if she recalled
that statement by Hannah in the week before the elec-
tion, Pipkin answered yes. She was also asked specifical-
ly by Respondent, if she heard Hannah say the Union
would turn over the union cards to the Company and
she replied yes. When asked when Hannah said the union
cards would be turned over to the company, Pipkin re-
plied that "he would be all around the plant saying that."
Additionally, Pipkin recalled that Hannah also threat-
ened her with discharge if the Union won. According to
her, Hannah told employees, "Then he said that the ones
that had voted 'no' if the union would get in that the
ones that didn't had been for the union would get fired
and he said even to you, too, Roberta; he said, 'I will see
that you get fired, too."'
Subsequently, Pipkin testified that she was told that
Hannah made the above comments to employee Wayne
Collins. She then testified that Jacob Brown told her
Hannah made the statement. Then Pipkin testified that
she heard Hannah make the statement to Debra Collins
and Wayne Collins.
Wayne Collins was called. He testified that he did not
hear Willie Lee Hannah say if the Union did not get in
the people would be fired or if the Union did get in
those who were against the Union would be fired. Col-
lins stated that he never told Roberta Pipkin that Hannah
had made such statements.
Hannah denied making any of the above statements to
Pipkin.
Pipkin testified that she was visited at her home in
April 1981 by George Kiser, Willie Lee Hannah, and a
black lady.' 2 In regards to Objection 6(a), paragraph 2,
Pipkin related that Kiser told her:
A. Mr. Kiser. He said that we needed a union in,
and then he said "that if we didn't get the union in
then the plant will find out who had already signed
cards" and stuff like that, and "that they would be,
if the union didn't get in that they would be fired,
they would have to turn the cards over to the plant,
and then the company;" he didn't say "the plant;"
he said "the company would find out who-all sign a
card and that they would get fired" because he ever
like what, I asked him "why they would get fired"
and he said "that anybody, once a man strikes at
you, he will strike at you again"; something like
that.
Q. Did Mr. Kiser tell you that if the union did
not win that the union would turn the cards over to
the company?
A. They had to turn the cards over to the com-
pany, if the company wanted the cards, they had to
turn the cards over to the company.
Discussion
I found Roberta Pipkin to be an overeager witness in
support of her employer's position. Her testimony ap-
"a First Pipkin said Derrick McCray was also present. Subsequently,
she said only three, Kiser, Hannah, and the lady were there.
693
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pears to involve numerous exaggerations. According to
her repeated testimony, she was threatened on innumera-
ble occasions. She indicated a belief that she had many
enemies and she appeared to assert that those enemies
were out to get her. As shown above, Pipkin testified to
a number of threatening phone calls which she attributed
to Derrick McCray and Willie Lee Hannah. However,
she subsequently admitted that she could not identify the
phone callers. Additionally, there is unrebutted testimony
that Pipkin's reputation was that of an untruthful person.
I also noted that Pipkin admitted that none of the wit-
nesses to her alleged conversations supported her recol-
lection.
Outside her own testimony, there is no support for
Pipkin's material allegations in the record. Respondent
offered no corroboration for her material testimony even
though some employees were named by Pipkin as wit-
nesses to those incidents. The one neutral witness that
testified regarding Pipkin's allegations, Wayne Collins,
specifically denied statements were made as alleged by
Pipkin.
I find it incredible that comments were made by
McCray and Hannah on the numerous occasions alleged
by Pipkin without those comments being overheard by
others.
Moreover, segments of Pipkin's testimony are nonsen-
sical. Why would a union representative, especially one
with the experience of George Kiser, threaten an em-
ployee that she may be fired if she signed a union au-
thorization card, during the conversation in which he
was soliciting her to sign a card. Obviously such a
threat, if made, would have the effect of influencing an
employee not to sign. That was precisely what Kiser did
not want.
Additionally, there was evidence that Pipkin did not
speak against the Union and that her procompany posi-
tion was not apparent until shortly before the election.
Obviously, if that was the case, there would be no incen-
tive for McCray, Hannah, or any other union supporter,
to harass Pipkin.
Under the circumstances and also on the basis of my
observation of Pipkin's demeanor, I find that her testimo-
ny is unworthy of belief.
Conclusion
In view of my finding that Pipkin cannot be believed,
I recommend that Objections I and 3(b), paragraphs 2, 3,
4, 5 and 6, and Objection 6(a), paragraphs I and 2 be
overruled.
Objections I and 3(e), paragraphs I and 2. In support of
these objections Respondent called employee Charles
McCutchen. McCutchen testified that he had a conversa-
tion with Derrick McCray at the plant after a question
arose regarding the missing saw. McCutchen recalled the
conversation occurred in the week after Easter. Accord-
ing to McCutchen:
Well, he came over to where I was at, and he
said, "I heard that you ratted on me." And I said,
What do you mean I ratted on you?" And he said,
"Well, somebody told me you said I stole the saw."
And I said, "well, he asked me where the saw was
at."
He said, "That's what I know, man."
And I said back to him, "How could I say that you
stole your saw?"
He said, "Well, I don't know. I heard you said
that." And he said if someone-if I find out who
ratted on me, and I get fired, I am going to take
them with me."
I said, "Well, I didn't rat on you," And so, he went
on back to where he was working at.
McCray admitted making a similar statement but, ac-
cording to McCray, he used the term "lied" as opposed
to "ratted." McCray appeared confused as to whether he
made the statement to McCutchen or to Supervisor
Joyce Hudson.
Discussion
Although, as noted above, there is a conflict between
McCutchen's testimony at the hearing and his pretrial
statement to counsel for the General Counsel, I shall
credit his testimony to the extent of McCray's admission.
Objection 2. Supervisor Joyce Hudson testified to a
conversation with Derrick McCray at the plant, shortly
after his April 24 suspension from work:
McCray told me that he was very upset because he
was accused of stealing the saw. He told me that he
was "mad with Mixon and he would blow Mr.
Mixon's fucking brains out."
McCray said that "if he ever tried to get a job any
place that it would always be on his record that he
stole a saw and he didn't." He said "that he would
find out who told on him."
Yes, sir. He said, when he said that "he would blow
Mr. Mixon's brains out," he raised his hands at my
forehead, and he point, you know, and aimed like a
gun.
Hudson testified that she told Production Manager
Roger Hughes of the above conversation.
McCray denied that the above incident occurred but
he admitted telling Hudson that if he found out who lied
on him he would take that person with him-try to get
him fired.
Roger Hughes testified that he gave Derrick McCray
a ride after McCray's discharge, and:
All right, as we were leaving the plant, Derrick
turned to me and said "Do you"-I may not have
this exactly as he said it but he said "Do you value
your life," or do you think a lot of your life?"
Did you say anything in response to that?
Yes, I said, "Sure, you damn right." And he said,
"Do you think Mixon values his life or do you
think that he thinks a lot of his life?"
694
PHOENIX GLOVE CO.
I said, "I suppose he does." And he said, "Well, I
don't think nothing of mine." I don't value mine. I
don't think nothing of mine." He said, "I bet you
and Mixon thinks a whole lot more of your life than
I do of mine." And I said, "Well, what do you
mean?" And he says, "Mixon, he has got a big job,
you know, he thinks a lot of his life, he has got a
big job, he thinks he is important." "Me, I don't
think nothing of mine but he thinks a lot of his. I
bet he values his life a lot more than I value my
life." And I said, "Derrick, what do you mean by
those statements?" He said, "That's all right, you
will see, that's all right." That, and when we got to
the car, he said, "I will see you around" and he got
out of the pick-up. I don't remember anything else.
That is basically all that it was.
McCray's testimony regarding the above conversation
with Hughes was as follows:
Well, we started to talk; or I started to tell him that
Mixon had all the money, and you know, his life
was valued, you know, a whole lot, being that I
was just an employee, you know, he could fire me
and do anything to me; my life didn't mean nothing
to him, you know, whatever happened to me was
fine with him; you know.
Discussion
Joyce Hudson appeared to testify candidly. In view of
my above findings regarding Derrick McCray's credibil-
ity, I shall discredit his denial and credit Joyce Hudson.
In view of McCray's admission, I shall credit Roger
Hughes' testimony regarding his conversation with
McCray following McCray's termination.
Objection 6(b), Mary Ann McKnight testified to a con-
versation which she recalled as occurring during the
period before the election, in the picnic table area at the
plant. Also present were Nat Brown, Rosetta Brown,
Mary Sue Brown, and Venetta:
Well, Nat told us, he said that "you had better vote
for the union; if you don't, you will be fired"; and
"they would make sure this time, they would hire a
lot of people to make our, that we would be fired
by next year this time; they would hire a lot of
people to take our place."
He said "they would have a lot of applications out
at the plant, that you know, they would hire more
people, you know, to vote for the union that would
be fired by next year."
Rosetta Brown, another of Respondent's witnesses, tes-
tified before McKnight's above-mentioned testimony.
Brown was not asked about the picnic table incident.
Nat Brown admitted to a conversation at the picnic
tables involving several employees including Mary Ann
McKnight and Rosetta Brown. However, Nat Brown's
testimony, which follows, differed from McKnight's:
A. Mary Ann McKnight, she said she was
scared, and the rest of the girls sort of mumbled,
you know, and I said, "Scared of what," you know,
I said, "it can only help."
Q. Did she say anything else?
A. I can't recall.
Q. Did you remember saying anything about the
possibility of people getting fired?
A. The possibility of people getting fired?
Q. Yes.
A. Yes, I did.
Q. What did you say?
A. I said, "well"; after she said that she was
scared; I said "scared of what"; and she said "well,
if we don't get the union in, you know, by next
year they could fire all of us."
Q. Did they say anything?
A. No. It was getting close to time to go in, you
know, like I said, the day was about over.
Q. Did you tell them if they did not vote for the
union, the company would fire them?
A. No, I did not.
Brown testified that some employees, including Der-
rick McCray and Easter Collins, had been fired before
the above-mentioned conversation. He admitted that fol-
lowing those discharges he was afraid that other union
supporters would be fired.
Discussion
As noted above in footnote 9, Mary Ann McKnight
was not a credible witness. I shall credit Nat Brown's
testimony which is otherwise unrebutted.
Conclusion
I see nothing objectionable in the credited evidence of
the picnic table conversation. The employee comments,
including McKnight's, evidence a normal reaction to an
explanation that an employee was afraid to sign a union
card when considered against the background of previ-
ous discharges of union supporters. Concern was ex-
pressed over other discharges, but the expressions clearly
evidence that no threats were being made. In fact, just
the opposite was expressed-concerns of what others, in
this case the Employer, could do to union supporters if
they were unsuccessful. I find that the above conversa-
tion did not involve objectionable conduct and recom-
mend that the objection be overruled.
Objection 6(c), paragraph 1. I find no record evidence
in support of this objection. Therefore, I recommend that
the objection be overruled.
Objection 6(c), paragraph 2 and Objection 10. Employee
Sandra Greene testified to a phone call she received a
few days before the election. Greene recalled that the
caller gave his name and said "that he was a member
from the Union representative." However, Greene testi-
fied that she does not recall the caller's name, but she
felt it was a white man. She testified the caller did not
sound like Union Representative George Kiser. Greene
recalled the phone conversation:
When he called, he told me that they did the pay
check differently, and he said they took out the in-
695
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surance, what the check would be like when they
started taking out union dues, and he also said that
we didn't have to pay the $2 fee from the check; he
said that the company will have to pay that from
the, for the union dues, that we didn't have to pay
it, that the company would have to pay it.
Well, he told us that the company did our check
differently, right, you know, take out what the
union dues would be, you know, per week. He said
that they just do it, you know, so we would, so we
wouldn't have no, you know, like he do the check
differently so that we could pay what the union
would be taking out of our check, and he said that
the $2 fee that would come out of the check
wouldn't be all; he said that the company, you
know, would be paying that; he said that we won't
be paying that, that that will be coming from the
company, that the company would be paying the
$2.
He also said that if like if you be out sick, or we be
out, you know, and any reason that we come back
and we be fired, and if the union be in there, they
wouldn't; you know, we won't get fired because
they would help us, you know, not to get fired; if
we be out sick or anything and we come back and
try to explain or tell them what was going on, and
then, you know, they didn't give us a chance, and
he said the union, you know, would be right there
to help us not to get fired.
And he said that about the raises, and the holiday
pay and stuff like that, he said that the union would
also help us have more raises and get paid for the
holiday, and more vacations and stuff like that.
All the male union representatives, who, with the ex-
ception of George Kiser, are black, denied making the
phone call to Greene. Derrick McCray, who is black,
made calls to employees about the paychecks but he
denied making comments as expressed in Greene's testi-
mony.
Discussions
Sandra Greene was admittedly preoccupied taking
care of her baby, during the above phone call. I have no
doubt that Greene received a phone call regarding the
Employer's recent two paychecks.' However, Greene's
testimony reveals confusion over the substance of the
call, which is not unexpected in view of Greene's preoc-
cupation. In view of her admitted distraction and her in-
's Before the election the Employer distributed two paychecks in lieu
of its regular weekly paycheck to the employees. The regular paycheck
was S10 short. A second check for S10 was paid with an indication that it
was the amount of dues that would be withheld for union members if the
Union were successful. At two points during the hearing, counsel for Re-
spondent agreed to produce a sample of the two paychecks. However,
the sample was never produced.
ability to remember the caller, I am unable to credit her
testimony to the extent it would show misrepresentation.
The relevant testimony regarding the paychecks
would appear from Greene's recollection to constitute an
indication that the Company, not the employees, would
pay each employee's union dues. However, the Union's
quarrel with the Company's two paychecks dealt with
the fact that the monthly dues of $10 was deducted from
a weekly paycheck, giving the impression, in the Union's
view, that the dues would be $10 a week. That was the
issue covered by Derrick McCray in his calls to employ-
ees regarding the paychecks. I am convinced that
Greene was confused regarding the substance of that
portion of the conversation.
As to the discharge for sickness portion of the phone
call, Greene's testimony reveals a statement that the
Union would help the employees regarding discharges
for sickness. While I cannot attribute that comment to a
union representative or any other agent of the Union,
due to Greene's inability to identify the caller, I credit
her testimony to the extent it evidences an assertion that
the Union would help employees regarding possible dis-
charges for sickness.
Conclusion
I find nothing in the credited evidence which consti-
tutes objectionable conduct. The evidence does not sup-
port a finding of misrepresentation by an agent of the
Union. Moreover, even if there was misrepresentation,
the most recent Board law would find that does not con-
stitute objectionable conduct in this instance.'4 As to the
allegation of help in discharge for sickness situations, I
find that nothing was said which constitutes objection-
able conduct. Greene was told that the Union would
help the employees. Obviously, there is nothing wrong
with such a comment.
Objection 6(c), paragraph 3. Employee Avis McFadden
testified that she was visited at her home before the elec-
tion by Derrick McCray along with Union Representa-
tives George Kiser and Verney Cumbee. McFadden re-
called the following material statements were made to
her by Representative George Kiser:
Yes, he also said that if I joined the union, "if I
signed the card, joined the union that I would have
nothing to lose, that I would only gain;" okay, they
also said that "if I joined the union that I would
have security."
Mr. Kiser also said that "if I joined the union, that I
would have security and that I would not be fired
or could not be fired."
On cross-examination, McFadden testified that she
could not recall whether Kiser went into other specifics
as to what would occur if the Union was elected.
Derrick McCray testified that he did not know of
Kiser telling McFadden that she could not be fired if the
Union came in.
14 See Midland National Life Insurance Co., 263 NLRB 27 (1982).
696
PHOENIX GLOVE CO.
George Kiser testified in detail about his visit to the
home of Avis McFadden. Kiser recalled McFadden tell-
ing him she was a Jehovah's Witness and did not believe
in voting. Kiser testified that he had previous experience
with Jehovah's Witnesses, and realized it would be fruit-
less to pursue other discussions with McFadden. There-
fore, Kiser said he did not "say much to her." Kiser re-
called a more extensive conversation with McFadden's
mother. Kiser specifically denied telling McFadden that
she could not be fired if she joined the Union. Kiser tes-
tified that he occasionally tells employees that they
"couldn't be fired for their union activity."
Discussion
I was impressed with Kiser's demeanor. I find it diffi-
cult to believe that Kiser, who has been employed by
unions for 28 years, would make such an obviously false
statement especially to an employee who had declared it
was contrary to her religious beliefs to vote. I am con-
vinced and find that McFadden was mistaken as to the
content of Kiser's remarks. Kiser may have well indicat-
ed that employees were protected by the law from dis-
charge because of union activities.
Conclusion
In view of my above credibility findings, I find that
the credited evidence does not support the objection.
Findings as to Objections
As indicated above, I find that Objections I and 3(a), 1
and 3(b), paragraphs 2, 3, 4, 5, and 6; Objection 6(a),
paragraphs 1 and 2; Objection 6(b); Objection 6(c), para-
graphs 1, 2, and 3; and 10, are not supported by credible
evidence and should be overruled.
As to the remaining Objections 1 and 3(b), paragraph
1; Objections 1 and 3(e); and Objection 2, 1 find, as
shown above, those allegations were supported by credi-
ble evidence. I shall now consider whether the facts sup-
port the Employer's contention that the election should
be overturned.
Objections 2, 1, and 3(e)
The above objections all deal with evidence showing
that Derrick McCray made alleged threatening remarks
to one employee and two supervisors, because of Re-
spondent's actions against him in regard to the missing
saw.
As to Objections I and 3(e), the credited evidence
shows that Derrick McCray told Charles McCutchen,
during the week after Easter 1981, that if he (McCray)
found out who lied on him and, if he was fired, he was
going to take them with him. I find that McCray's com-
ment constitutes a threat to try and have the employee
or employees that alleged McCray had stolen the saw,
fired. As developed above, the evidence shows that
McCutchen was aware at that time, that employee
Jerome Brockington had told the Employer that McCray
had taken the saw.
As to Objection 2, the credited evidence shows that
around April 25, 1981, Derrick McCray threatened
Joyce Hudson that he would blow Plant Manager
Mixon's brains out. At the time of that threat McCray
raised his hand to Hudson's forehead as though he was
pointing a gun. Other credited evidence shows that
McCray complained to Production Manager Hughes on
May 1, 1981, that Plant Manager Mixon valued his life
more than McCray valued his. I am convinced that at
that moment McCray, in a depressed state over his dis-
charge, was simply stating that his life was considered to
be of little value. His testimony at the hearing convinced
me that McCray, during his conversation with Hughes,
did not intend to threaten anyone. However, I also find
that Hughes, in consideration of McCray's threat to
Joyce Hudson the week before, had reason to be alarmed
by McCray's comments. While those remarks to Hughes
did not include a threat, McCray's comments did have a
disturbing overtone.
I find that McCray's actions, especially his threat to
Hudson, create grave concern. However, as to the issue
before me, I must consider the overriding question of
how they may have affected the employees' election.
Regarding all the above comments, it is apparent that
McCray's remarks did not involve the union campaign
or the election process. The factors which precipitated
McCray's remarks arose over the missing saw question
and the context of those remarks to McCutchen,
Hudson, and Hughes, was limited solely to the missing
saw question, and the Employer's consequent personnel
actions against McCray. Moreover, at that point in time
McCray was not a paid agent of the Union. He was a
strong union supporter. He had talked to employees
about the Union. He had solicited employees to sign
union cards. He had visited employees at their homes
and discussed the Union and oftentimes his visits were
made in the company of union representatives; and
McCray was a member of the Union's informal employee
organizing committee. Subsequently, of course, McCray
was employed by the Union but that did not occur until
after his discharge. 1
As to McCray's threat to Hudson and his comments to
Hughes, no employee overheard those remarks and the
evidence failed to show that employees learned of the re-
marks before the election. Therefore, I must question
how those statements, made to supervisors and regardless
of their frightening overtones, could have affected the
election outcome.
The Board has found that threats of violence are not
sufficient to set aside an election where no connection is
shown between the threats and the election [Methodist
Home, 253 NLRB 458 (1980)]. The test in "atmosphere
of fear" objections was set out in NLRB v. Gulf States
Canners, 585 F.2d 757, 759 (5th Cir. 1978). There the
court stated the "assay should seek to find whether the
questioned action by an election candidate had a tenden-
cy to influence the outcome of the voting."
The Board has found that remarks referring to possible
violent activity, even though connected with union ac-
5 Cf. Brown Steel Co., 230 NLRB 990 (1977), where the Board found
it unnecessary to find that an employee who was the union's chief orga-
nizer, was an agent. See also Certain-,Teed Products Corp. v. NLRB, 562
F.2d 500, 510 (5th Cir. 1977), where members of a union's organizing
committee were not agents of the union.
697
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivities, are "unrelated to the outcome of the election"
where the threat is connected to events that would occur
after the election. Burris Chemical. Inc., 246 NLRB 205
(1979); Hickory Springs Mfg. Co., 239 NLRB 641 (1978).
Here, as shown above, McCray's comments to
Hudson, Hughes, and McCutchen were not connected
by context or circumstances to either the Union, its orga-
nizing campaign, or the election process. Moreover,
there was no showing that his comments to Supervisory
Personnel Hudson and Hughes were communicated to
any employees. Therefore, I cannot find that those com-
ments had a "tendency to influence" any potential
voters. See NLRB v. GulfStates Canners, supra; Hamil-
ton Label Service, 243 NLRB 598 (1979); Beaird-Poulan
Division v. NLRB, 649 F.2d 589 (8th Cir. 1980); NLRB v.
Production Plated Plastics, 663 F.2d 709 (6th Cir. 1981);
and Zeigler Refuse Collectors, 245 NLRB 449 (1979).
I recommend that Objection 2 and Objections 1 and
3(e) be overruled.
Objections I and 3(b), paragraph I
In April, before Easter, 1981, Derrick McCray told
employee Avis McFadden that he would ram her down
if she did not sign a union card. McFadden replied that if
she got up she would get McCray back.
Both before and after the above incident, McCray and
McFadden were on good terms. McCray testified that he
and McFadden dated and that she visited his apartment
after his May I discharge. McFadden's testimony sup-
ports McCray in that regard.
There was no showing that McCray's comments to
McFadden were ever known by other employees eligible
to vote. McCray did nothing further to McFadden and
there was no evidence of any physical violence during
the organizing campaign.
Moreover, McFadden had already advised the Union
that she was a Jehovah's Witness and did not believe in
voting. There was no evidence showing that her position
was affected by McCray's comments.
I find that McCray's comments to McFadden did not
have the "tendency to influence" any potential voters,
NLRB v. Gulf State Canners, supra, nor did they contrib-
ute to "a general atmosphere of fear" (Zeigler Refuse
Collectors, supra; see also Hamilton Label Service, 243
NLRB 598 (1979), and Beaird-Poulan Division v. NLRB,
supra).
In view of my above findings, I recommend that all
the Employer's objections be overruled and an order
issue certifying the election results.
CONCLUSIONS OF LAW
1. Respondent Phoenix Glove Company, Inc. is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees about its employees'
union activities; soliciting employees to report to man-
agement on union activities of other employees; soliciting
employees to bring grievances to management during its
employees' union organizing campaign; threatening its
employees that they were messing up if they selected the
Union as their bargaining representative; threatening its
employees with reprisals if they discussed the Union
with other employees; requesting employees to speak
against the Union with other employees and implying
that the employees would thereby receive special favors;
instituting employee meetings and soliciting grievances
from employees during the employees' union organizing
campaign; granting improved benefits during its employ-
ees' union organizing campaign upon request from the
employees; and granting a wage increase to employees in
order to persuade them not to support the Union, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. Respondent did not otherwise engage in violation of
Section 8(a)(l) and (3) of the Act as alleged in the com-
plaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
actions designed to effectuate the policies of the Act.
However, nothing in this Order shall authorize or re-
quire the withdrawal or elimination of the wage in-
creases and other improved benefits found violative in
this Decision.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended
ORDER'
The Respondent, Phoenix Glove Company, Inc., An-
drews, South Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, and coercing its em-
ployees in the exercise of their rights guaranteed to them
in Section 7 of the 10 Act, in violation of Section 8(a)(l)
of the Act, by interrogating its employees about its em-
ployees' union activities; by soliciting its employees to
report to management on the union activities of other
employees; by soliciting employees to bring their griev-
ances to management during its employees' union orga-
nizing campaign; by threatening its employees that they
would be messing up if they selected the Union as their
bargaining representative; by threatening its employees
with reprisals if they discussed the Union with other em-
ployees; by requesting employees to speak against the
Union with other employees and implying that the em-
ployees would thereby receive special favors; by institut-
ing employee meetings and soliciting grievances from
employees during the union organizing campaign upon
request from the employees; and by granting wage in-
creases to its employees in order to persuade its employ-
ees not to support the Union.
IF If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
698
PHOENIX GLOVE CO.
(b) In any other like or related manner interfering
with, restraining, or coercing its employees in the exer-
cise of rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Post at its Andrews, South Carolina facility copies
of the attached notice marked "Appendix."'7 Copies of
said notice on forms provided by the Regional Director
for Region 11, after being signed by the Respondent's
representative, shall be posted by it immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps should
be taken by Respondent to ensure that the notice is not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
'7 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit our employees to report to man-
agement on union activities or other employees.
WE WILL NOT threaten our employees that they will
be messing up if they select the union as their bargaining
representative.
WE WILL NOT threaten our employees with reprisals if
they discuss the Union with other employees.
WE WILL NOT request our employees to speak against
the Union with other employees and imply that the em-
ployees will thereby receive special favors.
WE WILL NOT institute employee meetings and solicit
grievances from employees during the employees' union
organizing campaign.
WE WILL NOT grant improved benefits during our em-
ployees' union organizing campaign upon requests solicit-
ed from employees in order to persuade our employees
not to support Amalgamated Clothing and Textile Work-
ers Union, AFL-CIO, CLC, or any other labor organiza-
tion.
WE WILL NOT grant a wage increase to our employees
in order to persuade them not to support the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act, as amended.
PHOENIX GLOVE COMPANY, INC.
WE WILL NOT interrogate our employees about their
union activities.
699