Tartan Marine Co.

National Labor Relations Board - Board Decisions

Jan 28, 1980

247 N.L.R.B. 646 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tartan Marine Company and United Steelworkers of
America, AFL-CIO. Cases 11-CA-6905, 11-CA-
6969, 11-CA-7190, and 11-RC-4310
January 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 30, 1979, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs;
Respondent filed a motion to reopen the record, which
is denied for reasons set out below; and General
Counsel filed an opposition to the motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended
Order, as modified.
The Administrative Law Judge concluded that
Respondent had engaged in a number of 8(a)(1)
violations but had not committed certain other 8(a)(l)
violations as alleged in the consolidated complaint.
Moreover, the Administrative Law Judge found that
Respondent had engaged in various violations of
Section 8(a)(3) of the Act but had not committed
certain other 8(a)(3) violations as alleged in the
complaint. Finally, as the Administrative Law Judge
found that the Union had a valid authorization card
majority at the time it sought recognition from
Respondent, which recognition was denied, the Ad-
ministrative Law Judge concluded, based on the unfair
labor practices he had found, that Respondent's
refusal to bargain was in violation of Section 8(a)(5)
and (1) of the Act and that, under the authority of
N.L.R.B. v. Gissel 'Packing Co., Inc.,' a bargaining
order was an appropriate remedy here. As modified
below, we affirm the Administrative Law Judge's
Decision.
1. The Administrative Law Judge found that certain
of Supervisor Calvin Webb's comments to employee
Laverne Keith Leviner on January 25, 1977,' consti-
tuted the impression of surveillance of union activities
'395 U.S. 575 (1969).
'All dates are 1977 unless noted otherwise.
Without detailing what was aid about the former employee, Leviner
247 NLRB No. 73
in violation of Section 8(a)(1) of the Act. For the
following reasons we reverse this finding.
On January 17, a union representative met with
Leviner to discuss organizing Respondent. As a result
of this contact, a meeting was held on January 21 with
the union representative and seven to nine employees
of Respondent, at which time the representative
presented the benefits of unionization to the employ-
ees. On January 26, the Union made a demand for
bargaining upon Respondent based on an asserted
card majority. That demand was refused by Respon-
dent.
The Administrative Law Judge found that on
January 25 Supervisor Webb had a phone conversa-
tion with Leviner in which Webb indicated he knew
about the union meeting of January 21, who was there,
where the meeting had been held, and who was trying
to get the people together there. The Administrative
Law Judge found that by such remarks Webb had
created an impression of surveillance of union activi-
ties in violation of Section 8(a)(1) of the Act. In doing
so, however, the Administrative Law Judge failed to
consider certain other pertinent testimony. Thus,
Webb stated that he told Leviner in their conversation
that a former employee had told him about Leviner's
involvement in the Union and about the meeting of
January 21. Webb said he also told Leviner that, in
addition to the former employee's telling him this,
some people in a bar had also told him of the union
meeting.' Webb told Leviner that getting involved
with the Union was strictly up to Leviner. In these
circumstances, where it was not denied that Webb told
Leviner where and from whom he had heard about
Leviner and the Union, we find that Webb's remarks
did not constitute the impression of surveillance.4
2. The Administrative Law Judge also found that
Respondent's discharge of Jerry Cribb on March 18
was for union-related reasons and, therefore, was in
violation of Section 8(a)(3) and (1) of the Act. For the
following reasons, we reverse that finding.
Cribb was an active union adherent and his status
on the Union's organizing committee was made
known to Respondent as of January 22. Cribb also had
received numerous reprimands from Respondent-
both before and after Respondent was informed of his
union activities. In fact, between the time it learned
about his union activities and the date of his discharge
on March 18, Respondent had cited Cribb three times
for various rule infractions. The last of these three
incidents was only 3 days before his March 18
discharge. None of these reprimands by Respondent is
admitted her name came up in the conversation and that Webb may have
mentioned this bar conversation to Leviner, also.
'See, e.g., Sunbeam Corporation (Dumas Division). 211 NLRB 676 (1974).
646
TARTAN MARINE COMPANY
alleged as an unfair labor practice by the General
Counsel.'
On March 18, Cribb was assigned the job of waxing
a combination mold. The Administrative Law Judge
found that, because of the delicacy of the job,
Respondent had a rule against unnecessary talking
while an employee was performing this work. Cribb
apparently got behind in his work and asked for, and
received, the assistance of two other employees. After
the two employees went over to help Cribb, Foreman
Rogers reminded him not to talk on this job. Cribb
replied that he did not put wax on with his mouth.
Rogers returned to his office and noticed that Cribb
was not then working but instead was writing some-
thing on a piece of paper. Rogers returned to Cribb
and asked him what he was doing. Cribb said, "I'm
writing you up to take you to the National Labor
Board [sic]." Rogers then took Cribb into his office
and, after conferring with his superior and reviewing
Cribb's personnel file, informed Cribb that he was
fired.
In finding a violation in Cribb's discharge, the
Administrative Law Judge found that Respondent had
reasonable grounds to discharge Cribb because of his
past record but that those reasons had existed for
some time. However, only when Cribb mentioned the
NLRB to Rogers did Rogers decide to take action.
Contrasting Cribb's past infractions of Respondent's
rules with his writing a single sentence on March 18,
the Administrative Law Judge found that the latter
incident would not seem to have been a matter of such
gravity as to warrant immediate discharge. In view of
Respondent's hostility to the Union, the Administra-
tive Law Judge concluded that Cribb was fired, at
least in part, for his union activities and his expressed
intent to seek the protection of the Board.
As noted above, we disagree with this finding.
Notwithstanding Cribb's union activities, which were
known to Respondent, and Respondent's established
union animus, we find that Respondent's discharge of
Cribb was motivated by lawful considerations. Cribb
had a long history of reprimands from Respondent for
a variety of reasons, which had occurred both
before and after his involvement in union activity and
Respondent's knowledge of that activity. Only 3 days
before his discharge, Cribb had been warned that his
next unexcused absence would result in his discharge.
Then, on March 18, Cribb tell sufficiently behind in
' Cribb was also cited by Respondent for various infractions at least three
times before he engaged in any union activity. These reprimands were for
talking too much on the job or failing to adequately explain an absence from
work. These reprimands were in January and July 1976 and January 1977.
After his union activity began he was cited for talking too much, taking too
much time before working, and having unexcused absences.
I We accordingly find it unnecessary to determine whether Crbb would be
barred from reinstatement in any event because of certain after-discharge
comments on his part.
' In agreeing with him on this issue, however, we make the following
his work that he asked Respondent for, and received,
the assistance of two other employees. However, when
warned to refrain from talking, Cribb sarcastically
responded to his supervisor. Then, instead of returning
to work, Cribb stopped to write down a statement as
an aftermath of his conversation with the supervisor.
While the Administrative Law Judge belittled the
importance of this work stoppage in light of Cribb's
past infractions, which he found more significant, we
think the Administrative Law Judge was in error in
doing so.
In the first place, the Administrative Law Judge
himself found that the job on which Cribb was
working on March 18 required his "close attention."
Cribb, however, was not giving that close attention
when he was writing his note. Indeed, he had wiped
off some wax he had just applied, laid his rag down,
and begun writing when Rogers saw him. By so
acting, Cribb created the risk that he would miss a
spot in waxing and stick the mold. His conduct was all
the more serious since two employees had just been
pulled off their own jobs to help Cribb because he was
behind in his work. Under all these circumstances, we
conclude that it is not what Cribb was writing which
resulted in his discharge but when he was doing it, and
we conclude that Respondent did not violate the Act
when it fired him.6
3. Notwithstanding our reversal of two of the
Administrative Law Judge's unfair labor practice
findings, we agree with him that a bargaining order is
an appropriate remedy here. First, we agree that the
Union had a card majority when it made its demand
for bargaining on January 26.' We also agree with the
Administrative Law Judge that the unfair labor
practices which Respondent committed warrant the
imposition of a bargaining order. While we have
reversed his findings that Respondent illegally dis-
charged Jerry Cribb and created an impression of
surveillance in Webb's January 25 conversation with
Leviner, we have affirmed all the other unfair labor
practices which the Administrative Law Judge found.
This includes findings of 13 separate 8(a)(1) violations,
involving 10 different incidents and 5 different super-
visors; and 2 separate violations of Section 8(a)(3) of
the Act. We think the Administrative Law Judge aptly
summarized the reasons why a bargaining order is
appropriate here in the section of his Decision entitled
"The Remedy" and, with the exception of the dismis-
revisions to his majority total. First, contrary to the Administrative Law
Judge, but based on undisputed figures. we find that the Union had cards
from 62, not 64. employees on the demand date of January 26. Three of those
cards, not 4 as argued by Respondent, were found invalid by the Administra-
tive Law Judge, thereby reducing the card total to 59. Secondly, unlike the
Administrative Law Judge, we find it unnecessary to pass on the cards of
Robert M. Pearson, John William Potter, Elizabeth Virginia Webster, and
Charles Stogner in determining majority. In all other respects, we agree with
his card computations and find that the Union had at least 55 valid cards in a
98-employee unit on the demand date.
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sals noted above, we specifically affirm his rationale
for issuance of such a bargaining order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Tartan
Marine Company, Hamlet, North Carolina, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order as so
modified:
1. Substitute the following for paragraph l(e):
"(e) Creating the impression of surveillance by
telling employees it had heard that they were definite-
ly for the Union."
2. Substitute the following for paragraph l(i):
"(i) Refusing to rehire employees to discourage
membership in a union."
3. Delete paragraph 2(c) and reletter the subsequent
paragraphs accordingly.
4. Substitute the attached notice for that of the
Administrative Law Judge.
Moreover, we note that the case involving Respondent to which the
Administrative Law Judge referred in the section of his Decision entitled
"The Remedy" has now issued. See Tartan Marine Co., 243 NLRB 168
(1979). Notwithstanding our dismissal of the complaint in that proceeding, we
still perceive the necessity of a bargaining order for the reasons set out by the
Administrative Law Judge.
In its motion to reopen the record, Respondent argues that the span of time
since the election and the commission of the unfair labor practices, along with
the employee turnover since that time, requires that the Board reopen the
record and take evidence on whether a bargaining order is presently
warranted. Respondent's motion is denied as none of the issues it raises are
relevant to determining whether a bargaining order should now issue. See,
e.g., Capitol Foods, Inc. d/b/a Schulte's IGA Foodliner. 241 NLRB 855
(1979), regarding employee turnover.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our
employees concerning their union activity or the
union activities of other employees.
WE WILL NOT threaten our employees with
future harm in the event they make a "mistake"
in their decision for or against representation by a
union.
WE WILL NOT restrain our employees in their
Section 7 right to engage in union solicitation of
other employees during a break period in a break
area.
WE WILL NOT solicit employees to cancel their
union cards or to withdraw their support from a
union.
WE WILL NOT create the impression of surveil-
lance by telling employees we have heard that
they were definitely for a union.
WE WILL NOT threaten employees with loss of
future retention rights because of a union's
seniority policy if a union represents our employ-
ees.
WE WILL NOT solicit employees to solicit other
employees to cease supporting a union.
WE WILL NOT encourage our employees not to
honor a Board subpena.
WE WILL NOT refuse to rehire employees to
discourage membership in a union.
WE WILL NOT deny wage increases to employ-
ees because of their membership in and support
for a union.
WE WILL NOT refuse to recognize and bargain,
upon request, with a union representing a majori-
ty of our employees in an appropriate unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL, upon request, recognize and bargain
collectively, effective January 26, 1977, with
United Steelworkers of America, AFL-CIO, as
the exclusive bargaining representative of our
employees in the below-described appropriate
unit and, if an agreement is reached, embody
such agreement in a written, signed contract. The
appropriate unit is:
All production and maintenance employees
employed by us at our Hamlet, North Caroli-
na, plant; excluding office clerical employees,
professional employees, guards, and all super-
visors as defined in the Act.
WE WILL offer Laverne Keith Leviner employ-
ment at our Hamlet, North Carolina, plant
without discrimination as to the position offered
him or as to terms and conditions of employment
in such position and WE WILL make him whole
for any loss of wages suffered by him as a result of
our discrimination against him, including our
failure to grant him a wage increase with interest.
TARTAN MARINE COMPANY
648
TARTAN MARINE COMPANY
DECISION
ABRAHAM FRANK, Administrative Law Judge: The origi-
nal charges in this consolidated case were filed on January
28, 1977,' March 22, and September 20. The original
complaint issued on March 7 and consolidated complaints
thereafter on April 27 and January 24, 1978, amended on
March 10, 1978. The hearing was held from March 27-30,
1978, in Rockingham, North Carolina. All briefs filed have
been duly considered.
At issue in this case are questions whether the Respon-
dent, during the course of an organizing campaign, engaged
in various acts of interference, restraint, and coercion of
employees to dissuade them from joining or supporting the
Charging Party, including coercive interrogation, threats,
solicitation of employees to revoke their cards, and the
granting of pay increases prior to a scheduled Board
election; whether Respondent refused to grant pay increases
to several union adherents, discharged one union adherent
and refused to rehire another; and finally whether a
bargaining order is warranted under the rule of N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. PRELIMINARY FINDINGS AND CONCLUSIONS
The Respondent, a North Carolina Corporation with its
plant located at Hamlet, North Carolina, is engaged in the
business of manufacturing fiberglass auxiliary sailboats.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Charging Party, hereinafter called the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNION INITIATES ITS CAMPAIGN
On March 17 Michael Krivosh, a staff representative of
the Industrial Union Department of the AFL-CIO, met
with LaVerne Keith Leviner, an employee in Respondent's
glass shop department. Krivosh suggested that Leviner get
some employees together who were interested in forming a
union at Tartan and call Krivosh for a tentative first
organizational meeting. Such a meeting was held by Krivosh
on January 21 at the Regal Inn in Rockingham. Seven to
nine employees of Respondent attended. Krivosh talked to
them about the Union, how it operated, and the employees'
rights under the law. He covered the contract of a Tartan
Marine plant located in Grand River, Ohio, where the
Union represented the employees. He told them that the
Union needed an in-plant organizing committee before it
could issue authorization cards to be distributed to Respon-
dent's employees in the Hamlet plant. Krivosh informed the
employees that he was there to help them get a union in the
plant, and that once a substantial majority of the employ-
ees-about 65 percent-had signed authorization cards the
Union would demand recognition from the plant manager
and offer to submit the cards to a disinterested third party
for a card check. If the Company agreed, negotiations for a
contract could commence immediately following the card
check. Krivosh stated that the Union was not there to hold
an election, but that there was a possibility that they would
be pushed into an election. Krivosh instructed the employees
present to solicit in nonwork areas, on nonwork time, before
or after work, at employees' homes, and in the parking lot.
They were to tell the employees that the employees were
signing the cards to help get the Union into the plant and
that the card authorized the Union to represent them.
Krivosh informed the employees that the lowest pay rate
for the glass shop in the Grand River plant was either $4.25
or $4.29. This information was also given to Respondent's
employees at subsequent meetings and through leaflets.
Krivosh made the Grand River plant contract available to
Respondent's employees, and a local union officer from that
plant discussed the contract at subsequent union meetings.
Five or six employees present at the January 21 meeting
signed an in-plant organizing sheet.
On January 22 Krivosh sent two telegrams to Jack
Cuthbertson, plant manager, naming eight employees as
members of the Union's in-plant organizing committee. On
January 24 Krivosh sent a third telegram naming five
additional employees as members of the committee. Includ-
ed on the list of committee members were employees
Leviner, Jerry M. Cribb, and William H. Chavis.
On January 26 Krivosh wrote to Cuthbertson, advising
him that a majority of Respondent's employees had desig-
nated the Union as their bargaining representative and
demanding recognition and bargaining, following validation
of the Union's claim through a third party card-check. On
the same date Cuthbertson refused the request.
III. CREDIBILITY
The findings of fact set forth below are based, in some
instances, upon a composite of the testimony of witnesses.
Where the testimony is in conflict I have resolved such
conflicts with due regard to the demeanor of the witnesses as
they appeared before me, their ability to recall events, and
their willingness to testify fully and without apparent
evasion. I have also taken into account contradictions and
inconsistencies in testimony. In so doing, I have been aware
of a witness's self-interest in the outcome of this proceeding.
IV. INTERFERENCE, RESTRAINT, AND COERCION
A. Notice to Employees To Report Bothersome Union
Activity
Upon receipt of the first two telegrams Cuthbertson
posted a Notice to Employees. Attached to the notice were
the two telegrams sent by Krivosh. The notice stated that
the employees on the organizing committee would be held to
full compliance with all company rules and regulations and
that no employee involved with the Union "will ever receive
any preferential treatment by this Company." The notice
further stated:
' All dates are in 1977. unless otherwise indicated.
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We want to make our position on this steel workers
union crystal clear. WE DO NOT WANT A UNION IN THIS
PLANT. We fully intend to resist this union in its
attempt to get into our plant with every legal means
available to us-you can absolutely rely on that.
If any members of this 'organizing committee' or
anyone else attempts to bother you during working time
about the union and thus interferes with your work,
please notify your supervisor and we will see to it that
no such interference with your work occurs in the
future.
If you are asked to sign a union authorization card, we
encourage you to think long and hard before you get
yourself involved in a situation which you may not fully
understand. Signing one of these union cards is like
signing a blank check-you never know when it is going
to up or how much it will cost you. Remember-a
union card is a legal document. Make absolutely sure
you get the facts before you even consider signing your
name to one of these cards.
B. Restriction on Union Activity
On January 25 during a break period in the break area
Leviner asked employee David Rose if he wanted to sign a
card. Ted Rogers, foreman of the glass shop, was present
and told Leviner, "You should take care of this after work."
Leviner said the law permitted him to do it before work,
after work, and during break periods and lunchtime. Rogers
replied, "Our Company pays you for your breaks. They
don't pay you for your lunch time." Then Rogers said, "But
as long as you know what you're doing."
C. Interrogation
On the morning of January 25 Calvin Webb, a supervisor
in the assembly department, asked Leviner if Leviner had a
union card for Webb to sign; Leviner did not reply and
Webb left. That afternoon Webb called Leviner's home and
left a message for Leviner to call Webb. That evening
Leviner called Webb. During the course of the conversation
Webb stated that he knew about the union meeting on
January 21. Webb also said that he knew who was there or
who was going to be there and who was trying to get the
people together there and where it was held.
Some time about January 25 or 26 LaRue Conner had a
conversation with Rogers. Rogers asked if Conner had
signed one of the little cards. Conners asked Rogers what he
was talking about. Rogers replied, "You know what I'm
talking about." Conner did not respond and Rogers left.
A day or so later Conner had a conversation with
Supervisor Sim Caulder in the glass shop. Caulder asked
Conner if she had signed a union card. Conner asked,
"Why?" Caulder asked if Conner had seen the notice they
had posted. Conner said she had read it. Caulder asked if she
understood it, and Conner replied, "Yes." Caulder then said,
"Well, if you don't, you should read it again." Caulder told
Conner to read the bottom line on it, to read it over again.
As Conner was leaving Caulder repeated that she should
read the notice over again, saying, "We don't want a Union
here at the plant."
On March 9 Danny Lee McDuffie had a conversation
with Frank Clemmons, engineering supervisor in the re-
search and development department. Clemmons showed
McDuffie a news clipping relating to a woman who had been
fined by a union because she failed to attend union meetings
on Sundays. Clemmons asked McDuffie what he thought
about the clipping. They discussed pros and cons about the
union. McDuffie said he was reading a book about American
labor and was aware there were points against the Union.
Clemmons then said that he had heard that Mark Dombro-
sky and Steve Dombrosky were definitely for the Union and
asked McDuffie if he would not talk to them and tell them
the bad points about the Union. McDuffie refused. Before
McDuffie left Clemmons asked McDuffie if he would not
think about it. During the course of the conversation
Clemmons asked McDuffie if he understood the Union's
position on seniority. Clemmons pointed out that McDuffie
had a lot of potential and capabilities and could go up fast in
the Company, but that under the seniority system McDuffie
could be laid off before a less capable person was laid off.
McDuffie mentioned that Mark Dombrosky wanted to do a
good job and Clemmons sad that in Dombrosky's case, too,
the seniority system would hold him back. Clemmons asked
McDuffie to discuss with Dombrosky the seniority point
about the Union.
On or about January 20 Roger Williams, a member of the
organizing committee, had a conversation with Cuthbertson
in the latter's office. Cuthbertson asked Williams how he
was doing and then asked Williams if Williams had heard
anything about anybody trying to organize a union in the
plant. Williams replied that he had heard some rumors.
Cuthbertson then asked Williams how he felt about it.
Williams told Cuthbertson that he did not really know and
wanted to hear both sides. Cuthbertson then told Williams
how much the Company thought about him and how good a
job he was doing. Cuthbertson hoped that Williams would
not make a mistake that would harm him in the future.
On January 21, Rogers approached Cribb and asked Cribb
if he had heard anything about the Union. Cribb said he had
heard something. Rogers wanted to know what Cribb had
heard. Cribb told Rogers that there was a meeting. Rogers
asked where. Cribb asked Rogers what Rogers had heard.
Rogers said something to the effect that it was a little too
crowded and he could not talk about it. They made some
kind of an arrangement to meet at Rogers' house later that
day, but Cribb did not go to Rogers' house.
In February Williams had a conversation with Webb.
Williams was working in a boat with four or five other
employees. Webb said, "Did you guys get paid $5 to sign
Union cards?" Williams said, "What?" Webb repeated the
statement. Williams then said, "Man, you're breaking the
law. You're not even supposed to question us about this."
Webb looked at Williams and said, "Man, I can talk about
anything I want to." Williams then said, "Well, go ahead,
say what you want to. I'm taking it all in." Webb continued,
"Do you know y'all are going to have to pay $3 to get the
cards back?" Williams restrained Tim Long, one of the
employees in the boat from replying to Webb, stating that
Webb was breaking the law. Webb had two other conversa-
tions with Williams. In one conversation Webb told Wil-
liams that Williams, although involved in the Union, did not
650
TARTAN MARINE COMPANY
have to worry about his job after the union activity was over
because Williams was a pretty sound worker. In the second
conversation Williams told Webb that Williams was on the
committee and was for the Union, but was not trying to get
cards signed and was not as involved in the Union as Leviner
and Cribb.
D. Solicitation of Employees To Cancel Cards
Toward the end of January Cuthbertson posted a second
"Notice to Employees." The notice informed the employees
that they had an "absolute legal and moral right" to cancel
their union cards and have them returned. The notice
further advised the employees that, if they decided to get
their cards back, they should write a letter to the Union,
with a copy to the Board, asking that their cards be
cancelled and returned to them. The notice set forth the
address of Krivosh and Region 11 I of the Board.
During the campaign Respondent held a number of
meetings with selected groups of employees. Speeches were
made at these meetings, and films depicting strikes and
union violence were shown. Probably around the middle of
March Leviner asked Supervisor Sim Caulder why Leviner
did not get to go to those meetings. Caulder said, "All
you've got to do is what that paper says up there on the
bulletin board." Leviner asked, "Are you talking about the
one that asked you to get your cards back? Is that the way
you get to go?" Caulder replied, "That's what the paper
says."
E. Encouraging Employees Not To Honor Board
Subpenas
About the middle of March Conner had a conversation
with Rogers at the cutting table in the glass shop. Rogers
asked Conner if she had received a paper or a letter about
coming to court. The next day Conner asked Rogers if the
paper he was talking about would come by registered mail.
Rogers replied, "Yes, sometimes they do." Conner then
asked Rogers if she had to pick it up. Rogers said that she
did not have to if she did not want to; that she could do what
she wanted to about it. Rogers told Conner that there was
not anything that could be done about it if she didn't pick it
up.
F. The Granting of Wage Increases
Respondent's policy in granting wage increases to employ-
ees during 1976 and until June 1977 was based upon so-
called automatic and merit raises. Automatic raises were
granted on a monthly basis to employees whose rate of pay
ranged from 2.90 to a maximum of $3.20 per hour. Such
raises were not, however, actually automatic in that they
could be deferred for several months if an employee's
performance was not satisfactory. Merit raises were based
upon an evaluation of an employee's progress over a 3-
month period, which might be extended to 4 or 5 months or
longer depending upon the employee's performance evalu-
ation. Both systems required a supervisor's evaluation of the
employee's potential and ability.
In October 1976 Respondent granted an across-the-board
wage increase, ranging from 5 cents to 30 cents per hour, to
virtually all employees in the plant. Prior to that increase 21
employees had received raises in April, 5 employees had
received raises in May, 6 in June, 15 in July, 4 in August,
and 21 in September, all in 1976. In November 1976, 15
employees received raises, and in December 1976, 24
employees received raises. Some of these employees received
raises in both months and some received two raises in
December.
During the period from January 20, the date Respondent
first became aware of union activity in its plant, until March
31, the date of the election, 54 employees received raises.
From January 20-22, 4 employees received raises; 25
employees received raises on January 28, 16 in February,
and 9 in March.
V. DISCRIMINATION TO DISCOURAGE UNION
MEMBERSHIP
A. The Failure To Grant Wage Increases to Leviner,
Cribb. and Chavis
Leviner, the most active union adherent, and Cribb and
Chavis, active union adherents, were employed in the glass
shop. Of the 33 employees employed in this department, 27
received raises from January 21 to March 9. Fifteen of these
employees received their raises in January 10 in February
and 2 in March. Six employees, including Leviner, Cribb,
and Chavis received no raises during this period. Of the
latter all three had received raises on October 1, 1976, along
with other employees. At that time Leviner was raised to
$3.65 per hour from $3.40. Cribb was raised to $3.20 per
hour from $2.90. Chavis was increased to $3.20 per hour
from $2.90. Of the remaining three employees who did not
receive raises in the 3 months prior to the election, James
Haliburton was making $3.80 per hour, the top rate in the
plant; Michael Currie was making $4.00 per hour, above the
top rate; Mike Ferguson had received two raises the previous
December for an increase to 3.00 per hour from $2.75.
B. The Refusal To Rehire LaVerne Keith Leviner
Leviner was employed by Respondent for about a month
in 1973. He left his job voluntarily. He was reemployed in
October 1974. Initially assigned to the assembly department,
he was transferred to the glass shop on November 8, 1976,
under the supervision of Rogers. As indicated above,
Leviner was the foremost union adherent in the plant. He
was named in the January 22 telegram to Cuthbertson as a
member of the in-plant organizing committee. He solicited
employees to sign cards, attended union meetings, and
handed out leaflets for the Union at the plant gate.
On May 11 Leviner gave Respondent a week's oral
notification of his intention to quit his job. Leviner's
separation notice states that Leviner left his employment for
"better job opportunity and felt it would be better working
conditions." In a postterm comment Cuthbertson had noted
"not for rehire."
Leviner left his job on May 16 at II a.m. before his
normal shift terminated at 3:30 p.m. He informed Rogers at
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10:30 a.m. that he would be leaving at 11. Rogers asked
Leviner to stay because he could not be replaced until the
next day. Leviner replied that he felt the Company did not
care and that he would not be coming back after dinner.
Rogers said, "O.K."
Leviner returned to the plant to reapply for his job about
the middle of July, but was told by a secretary that the
Company was not taking applications at the time. In
August, responding to Respondent's help wanted ad in the
local newspaper, Leviner again returned to the plant and
filed an application for employment. As he was filling out
the application, John Dabbs, superintendent of the glass
shop during the Union's campaign, came by and asked
Leviner, "What are you doing?" Leviner replied, "Filling
out an application." Dabbs laughed and walked off. Rogers
also came by and said, "You're going to put me down for a
character witness, aren't you?" Leviner said, "Yeah, you'd
be the first one I'd put down." Leviner handed his
application to the secretary. She told him that she would put
it on Cuthbertson's desk, and if they had any openings, they
would give him a call.
Cuthbertson testified that Respondent did not rehire
Leviner because he had quit the Respondent's employ twice,
and Cuthbertson, after talking to his supervisors, established
this policy early in January because of the large number of
employees who had quit the previous year. The record shows
that 28 employees who were hired in 1976 quit during the
same year. Of the employees who had quit in previous years
and were not hired by Respondent upon reapplication in
1977, 7 employees, including Leviner, quit in 1973, 7 quit in
1974, none in 1975, and 5 in 1976.
Prior to his quitting in May Leviner was held in high
esteem by Dabbs and Cuthbertson. Dabbs had told Leviner
in the past that he was a good worker. Cuthbertson's opinion
of Leviner is recorded in a letter, dated January 7, 1976, to
the Commanding Officer of the National Guard, Rocking-
ham, North Carolina. In that letter Cuthbertson asked that
Leviner be exempt from the National Guard. Cuthbertson
described Leviner as follows:
Mr. Keith Leviner has been a loyal and devoted
employee of ours for the past eighteen months. During
this period he has elevated himself to a level which
makes our organization dependent upon craftsman [sic]
of his caliber. This type employee is badly needed to
insure the success of a current plant expansion.
In 1976 Leviner was late to work on nine occasions and
had one excused absence. During the first 5 months of 1977
he was late on two occasions. In December 1976 Rogers
spoke to Leviner about getting his own material from the
supply room, staying on the job, and getting more involved
in his job. On February 4 Rogers spoke to Leviner about
talking on the job and being away from his jobsite.
C. The Discharge of Jerry B. Cribb
Cribb was an active in-plant union organizer. He was a
member of the organizing committee, and Respondent had
been notified of this fact in Krivosh's telegram of January
22. Cribb talked to other employees about the Union and
solicited cards for the Union.
As indicated above, Cribb received a raise in pay in
October 1976 along with other employees, but was one of the
few employees in the glass shop department who received no
raises during the early months of 1977.
Cribb had been reprimanded a number of times by Rogers
for too much talking. In August 1976 he had been given a 3-
day disciplinary layoff. On January 31 Cribb was reprimand-
ed by Rogers for taking too long to drink hot chocolate
before reporting to work. Cribb was again reprimanded by
Rogers on February 4 for too much talking. On March 15
Cribb was absent and asked his wife to call Rogers' wife to
report his absence. Rogers did not receive the message and
marked Cribb absent without an excuse for that date. Rogers
noted on the reverse side of Cribb's employment attendance
card that the next time Cribb failed to report his absence to
the plant he would be fired.
In the fall of 1976 Rogers and Caulder had told Conner
that they were going to fire Cribb when they had a "good
reason."
On the morning of March 18 Cribb was assigned the job
of waxing a combination mold unit preparatory to applying
coats of fiberglass to form a boat part. In performing this
operation it is necessary that several coats of wax be applied
smoothly and evenly. If the wax is improperly applied the
fiberglass may stick to the mold, with the result that a piece
of the mold may be torn out when the boat part is finally
removed. Such damage requires that the mold be repaired
before it can be used again, and production is delayed. For
this reason Respondent had a rule against unnecessary
talking while an employee was engaged in waxing a mold.
On this occasion Rogers approached Cribb and told him
not to talk while waxing. Cribb replied that he did not put
wax on with his mouth anyway. Rogers returned to his
office, which was on an elevated platform from which
virtually the entire glass shop was within view of manage-
ment officials. In his office Rogers noticed Cribb writing
something on a piece of paper. Rogers came downstairs,
approached Cribb, and asked Cribb what was he doing.
Cribb replied, "I'm writing you up to take you to the
National Labor Board." Rogers said, "Come on with me,
let's go upstairs and talk." Cribb followed Rogers to the
latter's office where Cribb remained while Rogers consulted
with Cuthbertson. The two management officials reviewed
Cribb's record, including his writeups and absenteeism.
Cuthbertson told Rogers it was O.K. to fire Cribb. Rogers
returned to his office and told Cribb he was terminated.
Thereafter, Rogers saw Cribb punching out at the time
clock. Rogers told Cribb that Rogers had Cribb's timecard
and he would write Cribb's time up. Cribb then said, "Ted,
I've got something to tell you . . . if I lose any bit of my
personal property, I'll kill you." That evening Rogers called
the sheriff's department and reported that he had been
threatened. Later that evening Cribb called Rogers and
apologized for threatening him. The record contains evi-
dence that Cribb had been convicted in 1971 of assault with
a deadly weapon inflicting serious bodily injury and had
served several months in prison for this offense.
652
TARTAN MARINE COMPANY
VI. THE UNION'S MAJORITY STATUS PRIOR
TO MARCH 31
The parties stipulated that the appropriate unit includes
all production and maintenance employees employed by the
Employer at its Hamlet, North Carolina, plant, excluding all
office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
On January 26 this unit comprised 98 employees; on
February 18 it comprised 96 employees; on February 26 it
comprised 95 employees.
As of January 26 the Union had secured authorization
cards from 64 of these employees.
By February 18 the Union had obtained 5 additional cards
for a total of 68.2 By February 26 the Union obtained 3
additional cards for a total of 70.'
A number of employees identified their own cards. Other
cards were identified by union solicitors, primarily Krivosh
and Leviner.
The cards are unambiguous, single purpose cards author-
izing the Union to represent the signer for purposes of
collective bargaining with respect to rates of pay, hours, and
conditions of employment. All cards were received into
evidence subject to review upon further consideration of
Respondent's allegations that certain cards are invalid
because of misrepresentation by card solicitors.
The applicable rules relating to alleged misrepresentation
of single purpose authorization cards are set forth in
Cumberland Shoe Corp., 144 NLRB 1268 (1963); Levi
Strauss & Co., 172 NLRB 732 (1968); Hedstrom Company, a
subsidiary of Brown Group, Inc., 223 NLRB 1409 (1976);
N.L.R.B. v. Gissel Packing Co., supra.
Cumberland Shoe and Levi Strauss hold that single
purpose cards are not invalid because the signatory was told
that a purpose of the cards was to secure an election as
distinguished from the case where the employee solicited
was told that the only purpose of the card was to obtain an
election. In Gissel the Supreme Court approved the Board's
holding in Levi Strauss that the Board will not probe a card
signer's subjective reasons for signing a card in the absence
of clear proof of fraud or coercion. In Hedstrom the Board
held that statements made by card solicitors that the
employees "wanted to see if they could get the Union up for
a vote" and that "if there was enough of a percentage then it
would come up for a vote" were not an abandonment of the
plain statement on the card or a misstatement of its purpose
and that cards so solicited were valid.
Charles Stogner: Stogner testified that he signed a card for
the Union at the Tartan plant after reading it. He was told
by the union solicitor, James Outen, that the card would be
used to get an election. Stogner was familiar with union
authorization cards and assumed that, in any event, there
would be an election. I find Stogner's card valid.
Betty Stogner: Betty Stogner testified that her husband
gave her the card and told her it was for an election, but did
not tell her she had to sign the card to vote in the election. I
find Stogner's card valid.
Robert M. Pearson: Pearson testified that he was solicited
by employee McLenzy Bristow, who asked Pearson if he was
'Excluding the card of Jackie Bledsoe, who quit on February 8.
' Excluding the card of Annie Ruth Hughes, dated February 28.
still for the Union and would sign a card. Pearson said he
would sign it. Pearson testified that he attended union
meetings before and after he signed a union card. At the
meetings Krivosh said that the purpose of the card was to
assure a good election and that if anything came up in court,
the employees would not be obligated to come to court. I
find no misrepresentation of the plain purpose stated on the
card with respect to Pearson. His card is valid.
Andy McNeill: McNeill was not sure, but thought he
received his card from Outen in the break area of the Tartan
plant. He filled it out and signed it. He talked to a number of
union organizers about the card. Some of the organizers told
him that he would not have to pay union fees or dues if he
signed a card and the Union came in. He was also told that
the card did not obligate him in any way when he signed it.
Although these comments influenced his decision, he signed
the card because he felt that the Union would do the
Company good. Apart from the fact that McNeill could not
identify any individual who made a comment to him, none
of the above statements contradicted the explicit purpose
stated on the face of the card. I am satisfied that McNeill
was aware that in signing a card he was designating the
Union to represent him and was not misled in this respect. I
find his card valid.
Charles Edward Bristow: Bristow was solicited by Leviner
and signed a card on January 25. On cross-examination
Bristow testified that Leviner told Bristow that the only
purpose of the card was for an election and that Bristow
needed to sign it before he could vote in the election. On
redirect Bristow explained that Leviner said that they would
have a better chance of winning the election if a majority of
the employees signed cards. However, he did not retreat
from his testimony that Leviner also told Bristow that the
only purpose in signing a card was for an election. I find the
purpose of the card was misrepresented in this instance.
Accordingly, I will not count Bristow's card.
Ronnie Monroe Jacobs. Jacobs was solicited by Leviner or
Williams and signed a card after reading it on January 25.
He was told that the purpose of the card was to get enough
people to sign it for an election, but did not recall that he
was told that this was the only purpose. Jacobs testified that
he read the card, thought it over for about an hour, and
finally signed it. I find Jacob's card valid.
Roger Dale Byrd: Byrd read and signed a card for the
Union on January 24. He was approached by several
employees over a 2-week period, but was finally solicited by
Outen. Outen told Byrd that Byrd needed the card to vote.
Subsequently, Byrd sent a letter of revocation to Krivosh
with a copy to Region 11.' I find Outen's statement to Byrd
a misstatement of the purpose of the card, affecting Byrd's
right to consider himself eligible to vote in the forthcoming
election. His card is invalid.
Mary Shepard: Shepard read and signed a card on January
24. Leviner gave her the card and told her that they were
trying to get enough cards signed to see if they would be able
to have an election, that there would be an election if there
were enough cards signed. Subsequently, on May 11,
Shepard wrote a letter of revocation asking the Union to
return her card to her. I find Shepard's card valid.
' My conclusions with respect to all letters of revocation are set forth below.
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael Ferguson: Ferguson signed a card during the
Union's campaign, but could not fix the date. Subsequently,
he asked to revoke his designation of the U,lion, but decided
not to ask for his card back after a visit by several fellow
employees. Ferguson's card was lost and was not offered at
the hearing. I am satisfied that Ferguson was a union
adherent at some time during the Union's campaign.
However, without a specific date I am unable to determine
whether Ferguson authorized the Union to represent him on
any of the three critical dates litigated by the parties.
Accordingly, his designation of the Union cannot be
counted.
John William Potter: Potter testified that he signed a card
without reading it about January 1977, when card signing
was "an everyday thing." He was drinking heavily at the
time and could have signed the card in a bar. The card is
dated January 24, 1977, and was received at the Board's
Region II office on January 31. Potter was not clear about
statements made to him, but believed that it was just to get
"in the committee, join, something like that." There is no
evidence that Potter ever revoked his designation of the
Union to represent him. I am satisfied that Potter, though
intoxicated, knew that he was indicating his preference for
the Union when he signed a card in January. His card will be
counted.
Mark A. Dombrosky: Dombrosky was given his card by
James Outen. Dombrosky read the card ard filled it out. He
recalled that Outen told Dombrosky that the card was to see
how many people wanted the Union in the plant and to have
an election. If enough people signed there would be an
election. I find Dombrosky's card valid.
Donald Keith Steen: Steen was given his card by Cribb.
Steen read it and signed it. Steen testified that Cribb said "in
a guaranteeing way" that if the Union were elected it would
guarantee the employees $4.29 per hour. Subsequently, in
February, Steen wrote a letter to Krivosh and Region 11 of
the Board revoking his card. I find Steen's card valid.
Bernard Ray Tariton: Tarlton received his card from
McLenzy Bristow. Tarlton filled out the card and signed it.
Bristow told Tarlton that if a majority of the employees
signed the cards there would be better benefits from the
Company and that there would be a good chance that the
Union could come in. I find Tarlton's card valid.
Jimmy Franklin Webster: Webster signed a union card
during the campaign, but did not recall who brought it to
him. He was told at union meetings that he was not officially
a union member until he signed a' form providing for the
deduction of union dues. Webster revoked his card by letter
of March 27. 1 find Webster's card valid.
Elizabeth Virginia Webster: Webster did not attend the
hearing because of illness. Her affidavit states that she signed
an authorization card. She was told the card was not a full
membership card. I find Webster's card valid on January 26.
Webster revoked her card on February 18.
David Bruce Millen: Millen filled out and signed a card for
the Union on January 26. On February 14 he wrote a letter
revoking his card. I find Millen's card valid on January 26.
Ben P. Bagwell: Bagwell received his card from Outen. He
kept it for 3 or 4 days, read it, and then signed and returned
it to Outen. On March 11 Bagwell by letter requested that
his card be returned to him. I find Bagwell's card valid.
John W. Owens: Krivosh identified Owen's card. Owens
approached Krivosh at a union meeting and asked to sign a
card. Krivosh and Gene Gray, a union staff representative,
filled out the card for Owens, who signed it on February 17.
Owens revoked his card by letter postmarked March 18. 1
find Owens' card valid.
Larry James Sanford: Sanford received his card from
Outen. Outen asked Sanford if he wanted a card and said
nothing else. Sanford also testified that Wayne Williams
(Kenneth Wayne Williams) told Sanford before he signed a
card that Sanford had to sign the card to be eligible to vote.
Williams was named by Krivosh as a member of the in-plant
organizing committee. While not the immediate solicitor of
Sanford, Williams spoke with authority with respect to the
purpose of the card. His misrepresentation to Sanford
unfairly coerced Sanford in his right to be eligible to vote in
a Board election. I find Sanford's card invalid.
Willie Bostick: McLenzy Bristow solicited Bostick to sign
a card. Bostick filled out the card and signed it in Bristow's
presence. The date on the card is smudged, but it appears to
be January 24. It was received at the Board's Region I on
January 31 1 find the card valid as of January 26.
In addition to the employees named above who revoked
their cards, the following employees revoked their cards on
the dates indicated:
Richard Carter-February 23
Ray Webb-March 21
Calvin Bean-March 28
James Haliburton--On or about March 29
With respect to all cards subsequently revoked, such cards
are valid, in any event, until the date of revocation. There is
an issue with respect to the revocation of cards by three
employees, Virginia Webster, Millen, and Carter. These
three cards relate to the Union's numerical majority as of
February 18 and 26. As these three cards cannot, in any
event, affect the Union's majority status on those dates, I
find it unnecessary to resolve the issue.
Deducting the three cards found above to be invalid
because of misrepresentation, on January 26 the Union had
obtained 61 valid cards; on February 18 the Union had 65 or
63 cards, and on February 26 the Union had 67 or 64 cards.
VII. ANALYSIS AND FINAL. CONCLUSIONS OF LAW
A. Interference, Restraint, and Coercion
1. I find that Respondent violated Section 8(a)(1) of the
Act by the following conduct:
(a) Cuthbertson's interrogation of Williams on or about
January 20 as to whether Williams had heard anything
about anybody trying to organize a union in the plant and
how Williams felt about it.
(b) Cuthbertson's statement to Williams on or about
January 20 that Cuthbertson hoped that Williams would not
make "a mistake" that would harm him in the future, in the
context of Williams' statement that he heard rumors that the
plant was being organized and was undecided on the issue.
Cuthbertson's comment could reasonably be interpreted by
Williams to mean that if he selected the Union to represent
him he would be harmed in the future.
654
TARTAN MARINE COMPANY
(c) Rogers' interrogation of Cribb on January 21 about
whether Cribb had heard anything about the Union and
what Cribb had heard and where a Union meeting was held.
(d) Webb's questioning of Leviner on January 25 as to
whether Leviner had a union card for Webb to sign.
Although this question may have been asked in a joking
manner, in the context of Respondent's hostility to the
Union, its coercive thrust was apparent.
(e) Roger's restraint of Leviner on January 25, when
Leviner solicited Rose to sign a union card during a break
period in a break area, by telling Leviner to "take care of this
after work" because the Company "pays you for your
breaks."
(f) Webb's statement to Leviner in the evening of January
25 that Webb knew of the union meeting on January 21, who
was there, who was trying to get the people together, and
where it was held; thereby creating an impression of
surveillance.
(g) Rogers' interrogation of Conner about January 25 or
26 as to whether Conner had signed "one of the little cards."
(h) Caulder's interrogation of Conner on or about January
26 as to whether Conner had signed a union card and
Caulder's instruction to Conner to read Respondent's notice
again, following Conner's statemew that she had read and
understood the Notice, in the context of Respondent's
express hostility to the Union and Caulder's reiteration of
such hostility; thereby soliciting and pressuring Conner to
withdraw her support from the Union.
(i) Webb's interrogation of Williams and other employees
in February as to whether the employees had been paid to
sign union cards and whether they knew they would have to
pay $3 to get the cards back.
(j) Clemmons' threat on March 9 to McDuffie that
McDuffie and Mark Dombrosky could be laid off in a
reduction in force before a less capable person if the Union
represented the employees, in the absence of any evidence
that the Union advocated seniority over capability and
would demand or could obtain such a seniority system if the
employees selected the Union to represent them.
(k) Clemmons' request of McDuffie on March 9 that
McDuffie tell Mark Dombrosky and Steve Dombrosky the
bad points about the Union, including its seniority policy;
thereby soliciting McDuffie to persuade other employees to
cease being Union adherents.
(1) Clemmons' statement to McDuffie on March 9 that
Clemmons had heard that Mark Dombrosky and Steve
Dombrosky were definitely for the Union; thereby creating
an impression of surveillance.
(m) Caulder's statement to Leviner about the middle of
March that Leviner could go to a company meeting about
unions if Leviner did what the paper on the bulletin board
said, referring to Respondent's notice to employees advising
them on a procedure to have their cards cancelled and
returned to them; thereby soliciting Leviner to cancel his
union card.
(n) Rogers' statement to Conner about the middle of
March that she did not have to pick up "a paper or a letter
about coming to court" if she did not want to; that there was
not anything that could be done about it if she didn't pick it
up, all in reference to a Board subpena; thereby encouraging
an employee not to honor a Board subpena.
2. 1 find that Respondent did not violate Section 8(a)(l) of
the Act by the follow ing conduct:
Granting pay raises in January. February. and March: It is
the position of the General Counsel that the timing of the
pay increases in January, February, and March, at a time
when Respondent knew of the Union's campaign, was
interference with the employees' Section 7 rights. I do not
agree. As indicated above, Respondent has had a consistent
policy of granting wage increases in varying amounts on a
regular, sometimes monthly, basis over a period extending
back at least to April 1976. The 32 employees who received
raises in January, subsequent to Respondent's knowledge of
union activity, constituted a somewhat larger number than
the 21 employees who received raises in September 1976 and
the 24 employees who received raises in December 1976.
However, the difference is not so great as to warrant a
conclusion that Respondent had changed its system of
automatic and merit increases as a means of combating the
Union's campaign. I note that the relatively large number of
employees who received raises in September received them
just prior to, and those in December on the heels of, an
across-the-board wage increase for virtually all employees in
October 1976. In these circumstances the failure to continue
its policy of evaluating employees and granting wage
increases on a regular, consistent basis during the Union's
campaign would more likely be an unfair labor practice.
The notice to employees to report bothersome union activity:
The General Counsel argues that the word "bother" set
forth in Respondent's notice is ambiguous and tends to
encourage employees to inform the Employer of lawful
solicitation activities of other employees, relying on Bank of
St. Louis 191 NLRB 669, 673 (1971); Poloron Products of
Mississippi. Inc., 217 NLRB 704 (1975). I find these cases
distinguishable. In both cases the employer advised its
employees to report any employees who were "badgering" or
would not "leave you alone" in soliciting signatures for
union cards. In the instant case Respondent asked only that
conduct occurring during working time and which interfered
with an employee's work be reported. The distinction is a
matter of substance. The specificity of the language clarifies
the otherwise ambiguous term "bother." It is sometimes
difficult to balance the legitimate economic interests of an
employer against the Section 7 rights of employees. While
the tone of Respondent's notice is strong in its expression of
hostility to the Union, such expressions in and of themselves
are not unlawful. An employer has a right to see to it that its
employees continue to engage in their normal, productive
work activity, union or no union. Though the employees in
this case were made aware of their employer's "crystal
clear" position on unions and were encouraged to report
unprotected concerted activity, more than that cannot be
deduced from this notice.
The notice to employees of their moral and legal right to
cancel union cards: The General Counsel contends that
Respondent's notice instructing employees of their moral
and legal right to cancel their cards and have them returned
is unlawful, relying on The Deutsch Company. Electric
Component Division, 180 NLRB 8, 20 (1969). In that case
the Board found that a letter with such a message was
unlawful on the ground that the Employer included in its
letter, without the employees' request or demonstrated need,
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pre-addressed, stamped envelopes. There was no evidence
that any employee required or requested such assistance. In
the instant case the Respondent adduced evidence that
several employees had requested such information. Apart
from providing the employees with the addresses of the
Union and Region 11, no material assistance was given the
employees in cancelling their cards. The point is a narrow
one, but fine distinctions are the stuff of which this law, in
part, is made. Certainly, employees have a legal and moral
right to change their minds. It is not unlawful for an
employer to teli them this fact. In so doing, of course, an
employer treads a thin line between legality and illegality. I
have found above that Caulder violated the Act by referring
Leviner to the notice if he wanted to go to a company
meeting. But the mere publication to employees of the
addresses of the Union and Region 11 is not, in my opinion,
unlawful encouragement or solicitation of employees to
cancel their union cards, given their right to do so and the
employer's right to so state.
More stringent working conditions: In support of the
allegation of the complaint that Respondent imposed more
stringent working conditions on its employees because of
their union activity the General Counsel introduced evi-
dence that Cribb, Leviner, and Chavis were warned against
talking while working. Respondent's plant rules contain no
specific restriction against talking. However, the record is
clear that certain operations in the plant, such as waxing a
mold, require the mechanic's close attention. Moreover,
excessive talking during any productive work is a matter
that properly concerns an employer, even if the talking
relates to union activity. Working time, the Board has said
over and over again, is for work. I have found above that
Rogers unlawfully restricted Leviner's solicitation of Rose
during break time in a break area. Other than that instance,
the General Counsel has introduced no evidence that
Respondent's warnings about talking were unrelated to the
employees' work activity. Moreover, warning about talking
during work periods was not a policy initiated during the
Union's campaign. Cribb testified that he was warned about
talking several months after he was first employed in 1976. I
conclude that the evidence does not preponderate for a
finding of unlawful warnings about talking.
Closely watching employees: This allegation of the com-
plaint relates primarily to testimony by Cribb that he was
constantly under surveillance by Rogers or Dabbs following
the commencement of the Union's campaign in January. As
indicated above, the supervisors' office in the glass shop is in
an elevated area, suspended from the ceiling, about 8 to 10
feet off the floor. Virtually the entire glass shop is visible
from this office. Where, as here, an office is so located to
permit the supervisors to keep a close watch on all
employees while they are working, it is difficult, if not
impossible, to find that watching employees closely during a
union campaign is something the supervisors would not do
but for the union campaign. I find no merit to this allegation
of the complaint.
B. Discrimination To Discourage Union Activity
1. I find that Respondent violated Section 8(a)(l) and (3)
of the Act by the following conduct:
The failure to grant a wage increase in January, February,
or March to Leviner: As indicated above, Leviner, the most
active union adherent in the plant and known as such to
Respondent, received no raise during this period although 27
of the 33 employees in the glass shop did receive some sort of
raise. In February Leviner asked Rogers why Leviner was
not getting a raise. Rogers replied that Leviner needed more
on-the-job training, and more supervision, plus Leviner had
not been in the glass shop very long. With respect to the
latter reason, Leviner proved to Rogers that Leviner had
been in the glass shop since the first part of November rather
than December, as Rogers contended. However, this fact did
not persuade Rogers. The record shows that Leviner had
only I unexcused absence during the entire year in 1976 and
had been late to work on nine occasions. Dabbs had told
Leviner that he was a good employee. Leviner had received
his last raise on October 1, 1976. Under Respondent's merit
raise system he was entitled to an evaluation for a raise in 3
months, which should have occurred in January. However,
apart from Rogers' casual statement in February, no such
evaluation was made. I conclude that Leviner would have
received a raise in January or February but for his activity
on behalf of the Union.
The refusal to rehire Leviner. Respondent's sole reason for
refusing to rehire Leviner was the fact that he had quit twice.
In support of this reason Dabbs and Cuthbertson testified
that Respondent had initiated a new policy early in January
not to rehire employees who had quit twice. According to
Cuthbertson, the policy was adopted because a large number
of employees had quit the previous year. Cuthbertson
testified that about 50 employees had quit that year and
some of these employees had worked there twice. Respon-
dent Exhibit 25 shows that 28 employees hired in 1976 quit
the same year. Respondent Exhibit 27 is a list of employees
who had quit in previous years and were not hired in 1977,
but there is no indication as to the reason or reasons they
were not hired. Of these employees relatively few had quit in
any particular year; five had quit in 1976; none in 1975; and
seven in each of the previous 2 years. There is no evidence
that any applicant other than Leviner was denied reemploy-
ment because he had quit twice. Respondent's new policy
did not apply to employees who had quit once, only to those
who had quit twice. If, as Cuthbertson testified, he was
concerned about the large number of quits, it would seem
logical that he would publicize to the employees his new
policy for its deterrent effect. But the plant rules make no
mention of such a policy. No such policy was communicated
to the employees either by notice on bulletin boards or by
word of mouth through supervisors. So far as appears on this
record only management officials were aware of this policy
until the hearing in this case.
Under this Statute an employer has a right to refuse to
hire any employee for any reason other than his union or
protected concerted activity. A refusal to rehire an employee
because he has quit twice is certainly a lawful reason, policy
or no policy, provided it is the real reason. I am not
persuaded it was the real reason Respondent refused to
rehire Leviner in this case.
I have set forth above Respondent's unlawful 8(a)(l)
conduct with respect to Leviner and other employees and
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TARTAN MARINE COMPANY
my reasoning that Leviner was unlawfully denied a raise in
the early months of 1977.
I have also set forth the salient facts relating to Leviner's
record of employment, including Dabbs' previous opinion of
Leviner as a good employee and Cuthbertson's glowing
tribute to him in the letter of January 7, 1976.
To this should be added the reaction of Dabbs and Rogers
when they observed Leviner reapplying for his job in
August. Dabbs laughed. Rogers suggested that Leviner put
Rogers down as a character witness, a sarcasm fully
understood by Leviner and one to which he replied in kind.
There was no suggestion at that time by either of these
officials, who were privy to the policy of no rehire after two
quits, that Leviner was foreclosed from ever working for
Respondent because he had quit twice, once in 1973 after a
month's employment.
I conclude that Respondent's policy of no rehire after two
quits, if it existed, was tailored to keep Leviner out of
Respondent's plant. Respondent seized the opportunity to
rid itself once and for all of the employee most responsible
for the organization of its employees.
The discharge of Jerry M. Cribb: I have set forth above the
facts with respect to Cribb's active involvement in the
Union, Respondent's knowledge thereof, his employment
record, and the details which precipitated his discharge on
March 18.
Cribb was discharged, according to Rogers, because he
had "willfully" slowed down production and because of his
employment record, which Rogers and Cuthbertson re-
viewed prior to discharging Cribb.
Cribb's record shows that he was late on numerous
occasions in 1976 and received a 3-day disciplinary suspen-
sion in August of that year. However, despite this record, he
received a wage increase in October 1976. In the fall of that
year Rogers and Caulder indicated to Conner that they were
going to fire Cribb when they had a "good reason." Roger's
warnings to Cribb became more frequent and more explicit
beginning on January 31, as indicated in Rogers' comments
on the reverse side of Cribb's employee attendance records.
In the last entry on March 16 Rogers notes in red ink that
Cribb had an unexcused absence and would be fired on the
next occasion.
The straw that broke the camel's back occurred on March
18 when Cribb took time from his work to write what
Rogers had just said to Cribb: "Jerry, let's not have any
talking over here. There will be a lot of people over here."
Cribb also wrote, "Letter number 3." Rogers wanted to
know what Cribb had written and was told that Cribb was
going to take Rogers to the Board. Not until this point did
Rogers face up to the question whether he now had a "good
reason" to fire Cribb. After consulting with Cuthbertson
Rogers fired Cribb.
Obviously, on Cribb's record Respondent had reasonable
grounds to discharge him. But those grounds had existed for
some time. It was only when Cribb mentioned the Board
that Rogers suddenly decided to take action. Considering
the nature of Cribb's past infraction of rules, his writing a
single sentence on a slip of paper would not seem to be a
matter of such gravity as to motivate Rogers to discharge
Cribb immediately. After all, Cribb was merely recording a
statement of Rogers which Cribb believed to be an infringe-
ment of his Section 7 rights.
Respondent's characterization of Cribb's conduct on
March 18, the proximate cause of his discharge, as a
"willfull" slowdown of production, has a hollow ring.
Employees are not automatons and will, on occasion, stop
working to rub their eyes, scratch an itching spot, or record
an interesting comment for future reference. Such minor
interruptions in work are not normally regarded by employ-
ers as serious enough to be considered a production
slowdown, a matter of legitimate employer concern.
In view of Respondent's extreme hostility to the Union,
openly conceded, and its efforts, set forth above, to deter
employees from signing cards for the Union, Cribb's threat
to take Rogers to the Labor Board was, for Rogers and
Cuthbertson, the final indignity. It was the "good reason"
for which Respondent was waiting.
I conclude that Cribb was discharged on March 18 at least
in part because of his activities on behalf of the Union and
his expressed intention to seek the protection of the Labor
Board.
2. I find that Respondent did not violate Section 8(a)(1)
and (3) of the Act by failing to give Cribb and Chavis wage
increases during the months of January, February, and
March.
With respect to Cribb, the issue is somewhat suspicious in
view of his known activity on behalf of the Union and
Respondent's anti-Union conduct, some of it in violation of
the Act. However, other employees, who were designated
members of the in-plant organizing committee, Charles L.
Moore, J. S. Baker, J. W. Smith, and R. Ratliff, did receive
raises during this period. It has not been shown that any
employee with as poor a record as Cribb's received a wage
increase despite oor performance. In these circumstances I
cannot find with that assurance required by the Statute that
Respondent unlawfully discriminated against Cribb by
failing to grant him a wage increase in 1977.
With respect to Chavis, the record shows that Rogers did
evaluate him and believed he was a good employee, but that
Cuthbertson denied Chavis a raise because of a low point
score. Subsequently, Rogers reevaluated Chavis and Chavis
received his raise shortly thereafter on April 7. I find no
merit to the allegation of the complaint as to Respondent's
temporary denial of a wage increase to Chavis.
C. The Refusal To Bargain
The Union achieved majority status by means of valid
authorization cards on January 26 and requested bargaining
on that date. The stipulated appropriate bargaining unit is:
All production and maintenance employees employed
by the Employer at its Hamlet, North Carolina, plant;
excluding all office clerical employees, professional
employees, guards, and all supervisors as defined in the
Act.
Respondent refused to recognize and bargain with the
Union on January 26.
I find that the Respondent violated Section 8(a)(5) of the
Act by refusing to recognize and bargain with the Union as
the majority representative of its employees while cotermi-
nously engaging in conduct which undermined the Union's
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority status and prevented the holding of a fair election.
Trading Port, Inc., 219 NLRB 298, 301 (1975).
VIII. OBJECTIONS TO HE EL.ECTION
An election was held on March 31. The Union filed timely
objections, alleging, in substance, certain conduct of Respon-
dent found hereinabove to be violative of Section 8(a)(1) and
(3) of the Act. In view of my conclusion, for reasons stated
below, that a bargaining order is warranted in this case, I
shall recommend that the election in Case I -RC-4310 be
set aside and the petition in that case dismissed.
IX. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
With respect to Cribb, I shall not recommend that he be
reinstated to his former or substantially equivalent position
in view of his threat to Rogers and the evidence that he had
previously been convicted of assault with a deadly weapon
inflicting serious bodily injury.
Respondent's unfair labor practices, set forth above, can
only be remedied, in my opinion, by a bargaining order.
On March 7, 1979, Respondent moved to reopen the
record in this case to consider the question whether a fair
election can be now held at Respondent's plant. Respondent
submits that, upon a reopened record, the evidence will show
that subsequent to the closing of the hearing in this case on
March 30, 1978, charges that two employees were unlawful-
ly terminated have been dismissed; a complaint was issued in
a third charge, resulting in a hearing and a dismissal of that
complaint by an administrative law judge on February 28,
1979; and further, there has been a substantial employee
turnover since the election of March 31, 1977. The motion is
denied. With respect to turnover, the record shows a
substantial turnover in 1976. The proffered evidence sug-
gests only that the turnover continued after the March 31
election. Respondent does not contend that there has been a
turnover in supervisors, including Cuthbertson, the plant
manager, and other supervisors responsible for the unfair
labor practices in this case. With respect to Case I -CA-
7640, issued by Administrative Law Judge Thomas A. Ricci
on February 28, 1979, to which Respondent refers, that case
is pending before the Board and no definitive answer is
available at this time.
The record in this case shows that even before Respondent
notified its employees that it would resist the Union by
"every legal means available" it had already embarked upon
a campaign to resist the Union by illegal means.
Beginning on or about January 20 when Respondent first
heard rumors about a union organizing the plant, Cuthbert-
son, the plant manager, interrogated Williams about his
union views and in a veiled threat counseled Williams not to
make a mistake that would harm him in the future.
' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 48 of
Thereafter, in the latter part of January, and in February
and March other employees were interrogated coercively,
threatened, and restrained by four other supervisors, Rogers,
Webb, Caulder, and Clemmons. Leviner, a good employee,
was passed over for a raise, and Cribb was discharged
because he had the temerity to tell Rogers that Cribb would
submit to the National Labor Relations Board a statement
made by Rogers. Finally, when Leviner reapplied for his job
in August he was greeted with laughter and summarily
denied employment.
In N.L.R.B. v. Gissel Packing Co., Inc., supra, the
Supreme Court held that conduct less than "outrageous and
pervasive" but which still has the tendency to undermine
majority strength and impede the election process may
justify a bargaining order without an election. In the instant
case on three separate dates beginning on January 26 and
until February 26 the Union maintained a strong majority as
evidenced by valid authorization cards, subjected to minute
scrutiny. Within a month that majority was lost. In my
opinion, the coercive effects of Respondent's conduct in the
context of its supervisors' and plant manager's approach to
the Section 7 rights of employees cannot be eliminated
merely by a cease-and-desist order and the traditional
posting period of a notice to employees. The possibility of
holding a fair election in these circumstances is too slight to
effectuate the policies of the Act. The employees' choice of
the Union as their collective-bargaining representative
through cards is in this particular case a more reliable
indication of their true sentiment than an election. Accord-
ingly, I shall recommend that a bargaining order issue,
effective as of January 26, when Respondent had already
embarked upon its illegal campaign to defeat the Union.
Upon the basis of the entire record, the findings of fact,
and the conclusions of law and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDERs
The Respondent, Tartan Marine Company, Hamlet,
North Carolina, its officers, agents, successors, and assigns
shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activity or the union activities of other employees.
(b) Threatening employees with future harm in the event
they make a "mistake" in their decision for or against
representation by a union.
(c) Restraining employees in their Section 7 rights to
engage in union solicitation of other employees during a
break period in a break area.
(d) Soliciting employees to cancel their union cards or to
withdraw their support of a union.
(e) Creating the impression of surveillance by informing
employees that Respondent has knowledge of union meet-
ings, the employees attending and those engaged in getting
the people together, and the names of employees supporting
a union.
the Rules and Regulations, be adopted by the Board and become its findings,
conclusions, and Order, and all objections thereto shall be deemed waived for
all purposes.
658
TARTAN MARINE COMPANY
(f) Threatening employees with loss of future retention
rights because of a union's seniority policy if a union
represents the employees.
(g) Soliciting employees to solicit other employees to cease
supporting a union.
(h) Encouraging employees not to honor a Board subpena.
(i) Discharging or refusing to rehire employees to discour-
age membership in a union.
(j) Denying wage increases to employees because of their
membership in and support of a union.
(k) Refusing to recognize and bargain, upon request, with
the union representing a majority of its employees in the
below-described appropriate unit:
All production and maintenance employees employed
by the Employer at its Hamlet, North Carolina, plant;
excluding all office clerical employees, professional
employees, guards, and all supervisors as defined in the
Act.
(I) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively,
effective January 26, 1977, with United Steelworkers of
America, AFL-CIO, as the exclusive bargaining representa-
tive of the employees in the appropriate unit described above
in Section I(k) of this Order and, if an agreement is reached,
embody such agreement in a written, signed contract.
(b) Offer LaVerne Keith Leviner employment at Respon-
dent's Hamlet, North Carolina, plant without discrimination
as to the position offered him or as to terms and conditions
^ In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of employment in such position and make him whole for any
loss in wages suffered by him as a result of the discrimina-
tion against him, including the failure to grant him a wage
increase, with interest in accordance with the formulas set
forth in F. W. Woolworth Co.. 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(c) Make Jerry M. Cribb whole for any loss in wages he
suffered as a result of the discrimination against him, with
interest in accordance with the formulas in the cases cited in
2(b) above of this Order.
(d) Post at its plant in Hamlet, North Carolina, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by its representative, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to isure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act other than those
specifically found herein.
IT IS FURTHER ORDEREDI) that the election held on March
31, 1977, in Case I I-RC-4310 be, and it hereby is, set aside
and the petition in that case be, and it hereby is, dismissed.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board '
659