Strauss, Levi, & Co., Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1981

256 N.L.R.B. 1247 (N.L.R.B. 1981)

LEVI STRAUSS CO.. INC. 1247
Levi Strauss & Co., Inc. and Southwest Regional
Joint Board, Amalgamated Clothing & Textile
Workers Union, AFL-CIO, Petitioner. Case
23-RC-4897
July 17, 1981
DECISION AND DIRECTION OF
SECOND ELECTION
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Direc-
tor for Region 23 on May 21, 1980, an election by
secret ballot was conducted on June 13, 1980,
under his direction and supervision among the em-
ployees in the appropriate unit. At the conclusion
of the election, the parties were furnished with a
tally of ballots which showed that there were ap-
proximately 514 eligible voters and that 469 ballots
were cast, of which 181 were for the Petitioner,
280 were against, and 8 were challenged. The chal-
lenged ballots are not sufficient in number to affect
the results of the election. Thereafter, the Petition-
er timely filed objections to the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Regional Director issued an order di-
recting a hearing on the Petitioner's objections on
July 14, 1980. Thereafter, on October 9, 1980, the
Hearing Officer issued and duly served on the par-
ties his report and recommendations to the Board
on the Petitioner's objections. He recommended
that each of the Petitioner's 44 objections be over-
ruled and the results of the election certified.
Thereafter, the Petitioner timely filed exceptions to
the Hearing Officer's report.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by the Employer at its Corpus
Christi, Texas, plant, including mechanics,
janitors, packing and shipping employees, qual-
ity auditors, cutting room employees, material
handlers and plant clerical employees, but ex-
256 NLRB No. 182
cluding office clerical employees, instructors,
professional employees, guards and supervisors
as defined in the Act.
5. The Board has considered the entire record in
this proceeding, including the Petitioner's objec-
tions, the Hearing Officer's report, the Petitioner's
exceptions and brief, and the Employer's brief, and
hereby adopts the Hearing Officer's findings,' con-
clusions, and recommendations only to the extent
consistent herewith. 2
Objections 4 and 5 allege that Respondent insti-
tuted and discriminatorily enforced a "no-talking
rule" during the final 24 hours of the election cam-
paign. We find merit in the Petitioner's exceptions
to the Hearing Officer's recommendation that these
two objections be overruled.
On the evening of June 11, 1980,3 Industrial Re-
lations Representative Fred Herrera met with su-
pervisors at the Employer's Corpus Christi, Texas,
plant to inform them of restrictions to which they
would be subject during the 24-hour period imme-
diately preceding the June 13 election. He ex-
plained that in the final 24 hours of the election
campaign the law prohibited management from
talking to more than one employee at a time or
holding any group meetings. According to Her-
The Petitioner has excepted to certain credibility findings made by
the Hearing Officer. It is the established policy of the Board not to over-
rule a hearing officer's credibility resolutions unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions are
incorrect. The Coca-Cola Bottling Company of fMemphis. 132 NLRB 481,
483 (1961) Srretch- Tex C. 118 NLRB 1359. 1361 (1957) We find no suf-
ficient basis for disturbing the credibility resolutions in this case
2 In the absence of exceptions thereto, we adopt, pro forma, the Hear-
ing Officer's recommendations that the Petitioner's Objections 6, 7. 8, 9.
21 24. 26. 27. 28. 29, 31. 38. 39. 41. and 44 be overruled
In adopting the Hearing Officer's recommendations that Objections 3,
14. and 16, and Objections 13. 15. 19, 22. 23. 30, 37. 42. and 43. should be
overruled, Chairman Fanning finds it unnecessary to rely upon lIoward
.Manufacturing Companv. Inc.. 219 NLRB 638 (1975), a case in hich he
dissented
The Hearing Officer recommended that the Petitioner's Objection 20
be overruled, but failed to state the basis for his recommendation Em-
ployee Delma Maldonado testified that Supervisor Linda Borrego came
by her work station on the day of the election and told her that the
warning system would be eliminated and she could be fired right there if
the Union came in She also testified that Borrego told her nothing
would change if the Union came in except that employees would have to
pay union dues. The parties stipulated that. had Borrego been available to
testify, she would have denied making these statements
Assuming Borrego made the statement concerning elimination of the
warning system, we nevertheless find it insufficient to oerturn the elec-
tion for the following reasons: (1) the remark was made by a ov-lesel
supervisor on the day of the election, thus leaving little time for it to cir-
culate among the more than 500 employees who compose the unit: (2)
Borrego. by Maldonado's own admission, also told her that if the Union
came in nothing would change except that employees would have to pay
union dues. thus. at best, leaving Maldonado with an ambiguous impres-
sion concerning what would happen if the Union won; and (3) the stlate-
ment as made in a context free of any unlawful or objectionable con-
duct during a campaign of over seeks
Member Jenkins filds it uLnnecessars to resolve the iisues raised by ()h
jections 20
' All dates herein are in 1980
LEVI STRAUSS & CO. INC.
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1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rera, he also told the supervisors to make sure em-
ployees stayed at their work stations during this
period so production could get going again, but did
not instruct them to prevent employees from talk-
ing. The following day, at noon, the Employer
made an announcement over its public address
system concerning the 24-hour rule that stated as
follows:
The law prohibits any group meetings between
supervisors and employees from 12:00 noon
today until the polls open at noon tomorrow.
We ask your cooperation in this matter ...
The record establishes that, despite Herrera's al-
leged instructions, the supervisor did restrict em-
ployee talking. Several employees stated at the
hearing that on the day of the election their super-
visors sharply curtailed their freedom to converse
with fellow employees. Those supervisors who tes-
tified in detail about this matter corroborated the
employees' testimony. Supervisor Linda Bradley
testified:
I told them on that particular day, I would ap-
preciate it if they would stay in their seats and
not get up and wander around and meet with
their neighbors because I could not meet more
than on a one-to-one basis with anyone. So I
wanted them to stay in their seats and do their
job.
The Employer's counsel asked Bradley if she had
been told why employees were not to gather into
groups that day, and she replied, "Because the
union activities were supposed to be over from that
point." On cross-examination by the Petitioner,
Bradley agreed that one of her concerns had been
employees, both pro- and anti-union, talking about
the union campaign.
Supervisor Gloria Garcia observed that, while
the Employer's policy concerning employees talk-
ing and moving about was consistent throughout
most of the campaign, it changed on the day of the
election. "When the campaign was going on,"
Garcia testified, "everybody could associate with
everybody. We didn't say anything because we
didn't want to interfere with whatever they were
doing, and all this." Garcia noted, however, that
on election day management told supervisors to
keep employees "quiet" and "in their seats," and
that employees were allowed to talk that day, but
not about the Union. Garcia further testified that
management's explanation for not wanting employ-
ees to group up on the day of the election was that
"it would be best" since "there were a lot of feel-
ings."
Supervisor Mary Vera testified that she told her
employees about "the 24 hour waiting period," and
that they were not to walk around to other ma-
chines and talk to other operators. She also said
she was told that employees were not to talk to
each other because "[t]hey were already confused,
and if they were talking to one another, it would
get them more confused. And this way I could talk
to them individually."
The Hearing Officer found that the Employer in-
stituted a rule restricting employee talking, that the
rule was applied to employees during working time
while at their work stations, and that prior to noon
on June 12 no such rule existed. He also noted that
Respondent's stated reason for implementing this
rule was "to get production going again," follow-
ing almost 2 weeks of disruptions caused by the
election campaign. In light of the Petitioner's fail-
ure to offer any evidence of the rule having been
applied during nonworking time, the Hearing Offi-
cer concluded that legitimate business consider-
ations, not antiunion ones, dictated its promulgation
and enforcement. Accordingly, he recommended
that these objections be overruled, citing Stone &
Webster Engineering Corporation, 220 NLRB 905
(1975), in which the Board overruled an objection
to the Employer's restricting on nonwork-related
conversations during working hours in the weeks
preceding the election.
Since the rule in this case was admittedly a prod-
uct of the election campaign, the burden is there-
fore on the Employer to justify its imposition. We
cannot agree with the Hearing Officer's finding
that the Employer met that burden because it "as-
serted that the reason for the rule was 'to get pro-
duction going again,"' and the Petitioner adduced
no evidence to show that the rule was applied to
nonworking time.
Contrary to the Hearing Officer, we find that the
Employer improperly instituted a no-talking rule
during the critical period. The record testimony re-
veals that conversations among employees were re-
stricted during the final hours before the election
for one of two reasons, either of which, standing
alone, would be objectionable. With respect to the
first, Industrial Relations Representative Herrera
denied ever instructing supervisors to tell employ-
ees they were not to speak to each other. Howev-
er, he did tell them not to meet with groups of em-
ployees within 25 hours of the election and to keep
employees at their work stations working. Conceiv-
ably then, the no-talking rule did not originate
from upper management, but from several supervi-
sors' misinterpreting two separate instructions from
management, neither of which was ostensibly de-
signed to eliminate the prior practice of allowing
talking during work. Assuming, arguendo , that this
was the case, we cannot read a legitimate business
LEVI STRAUSS & CO., INC. 1249
justification into a rule prohibiting working time
conversations among employees for the 24 hours
prior to the election simply because the supervisors
incorrectly interpreted and applied the Employer's
instructions. It is undisputed that employees were
permitted to talk to each other while working prior
to this time, including during the 6-week election
campaign. The testimony further indicates that em-
ployees were released immediately after the elec-
tion, and that the talking ban was not in effect after
the election. We therefore are unable to discern
any legitimate business consideration for prohibit-
ing employee conversations during this 24-hour
period.
In Stone & Webster Engineering Corporation,
supra, the employer observed that employees were
engaging in frequent conversations on working
time in the weeks preceding the election. Con-
cerned about decreased production, the employer
instituted a somewhat more restrictive policy with
respect to these conversations than it had followed
in the past. Unless employees' conversations were
work related, they were instructed to return to
work. The employer's response, coming as it did
several weeks before the election, was clearly justi-
fied by its interest in maintaining adequate levels of
production throughout the course of the election
campaign. In contrast, the Employer in the instant
case allowed employees to engage freely in union-
related discussions throughout virtually the entire
preelection period, but abruptly cut off all non-
work-related talking 24 hours before the election.
Thus the timing of the Employer's actions here
clearly do not evidence the same degree of concern
over a falloff in production as did the employer's
action in Stone & Webster.4 Whatever interest the
Employer here might have had in promoting pro-
duction on the day of the election is negated by the
4 Chairman Fanning finds it unnecessary to distinguish Stone & Web.h
ster, a case in which he dissented on the point in issue
release of the employees after the conclusion of the
election.
The second possible explanation for the institu-
tion of the no-talking rule is that the Employer
purposefully transmitted instructions to supervisors
to give management a one-sided advantage in last-
minute electioneering. As previously noted, Super-
visor Vera testified that the Employer informed
her that employees were not to talk to each other
because they would become more confused, and
because it would afford her the opportunity to talk
to them individually, and Supervisor Garcia testi-
fied that management explained it did not want em-
ployees grouping up on the day of the election be-
cause "it would be best" since "there were a lot of
feelings." Further, the record reveals several in-
stances of supervisors engaging employees in
union-related discussions on the day before, and the
day of, the election. For example, employee Norma
Hinojosa credibly testified that Supervisor Gary
Dennis told her on June 13 that employees return-
ing from sick leave or layoff would have to pay
union dues.5
In light of the foregoing, we conclude that the
Employer had no legitimate business justification
for prohibiting employee conversations during the
24 hours prior to the election. This would be so
whether the prohibition was a consequence of su-
pervisors misinterpreting management's instructions
or the Employer intentionally attempting to mo-
nopolize the final hours of the election campaign.
Accordingly, we will sustain the Petitioner's Ob-
jections 4 and 5 and direct a second election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I There is also evidence that the no-talking rule was discriminatorily
enforced against union adherents. Employee Delma Maldonado testified
that she asked her supervisor on the day of the election why she was
letting an employee walk around. and the supervisor replied that the em-
ployee was "not talking Union"
LEVI STRAUSS & CO., C 9