Vernon Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 622 (N.L.R.B. 1975)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vernon Manufacturing Company and Spencer Indus-
tries and Southern Regional Joint Board , Amalga-
mated Clothing Workers of America and Amalga-
mated Clothing Workers of America, AFL-CIO
Caledonia Manufacturing Company and Spencer In-
dustries and Southern Regional Joint Board, Amal-
gamated Clothing Workers of America , AFL-CIO
and Amalgamated Clothing Workers of America,
AFL-CIO. Cases 10-CA-9938, 10-CA-10251, 10-
CA-10247 (Formerly 26-CA-4604), and 10-CA-
10268 (Formerly 26-CA-4785)
July 28, 1975
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY , AND PENELLO
On October 25, 1975, the National Labor Rela-
tions Board issued its Decision and Order' in the
above-entitled proceeding finding that Respondent
Caledonia Manufacturing Company violated Section
8(a)(5) of the National Labor Relations Act, as
amended, and that Respondent Vernon Manufactur-
ing Company violated Section 8(a)(1) by engaging in
various unlawful conduct. The Board also found that
Respondent Vernon Manufacturing Company did
not foster decertification authorizations in violation
of Section 8(a)(1) and that it did not withdraw recog-
nition from and refuse to bargain with the incumbent
Union in violation of Section 8(a)(5).
Thereafter, on May 5, 1975, the Board decided, sua
sponte, to reopen and reconsider its decision and ad-
vised all parties that they could submit supplemental
briefs. The General Counsel, the Charging Parties,
and Respondents have each filed such supplemental
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record, in-
cluding the supplemental briefs, and reaffirms its
original findings 2 and Order for the reasons stated
below.3 Findings not specifically discussed herein are
'214 NLRB No. 23.
2 In the initial decision , we noted that the representation case involving
the decertification petition at Vernon, in issue herein , was held in abeyance
by the Regional Director for Region 10 and that we understood the petition
was still pending . We have been advised that the decertification petition was
in fact dismissed by the Regional Director on August 29, 1973. In view of
our finding in the initial decision and herein that a real question concerning
representation exists, the decertification petition is subject to reinstatement
by the petitioner.
3 The fact that our reconsideration of the instant case follows notification
reaffirmed for the reasons set forth in the initial deci-
sion.
1. The Administrative Law Judge found, and we
agreed, that Supervisor Hazel Smith's interrogation
of, and threats to, Vernon employee Margie Lee
Madden if that employee did not sign a decertifica-
tion authorization violated Section 8(a)(1); but we
found further that her single instance of interroga-
tion and threat was not sufficient to taint the entire
solicitation of decertification authorizations or to re-
quire finding that the authorizations were coerced.
The Administrative Law Judge found additionally
that Respondent Vernon, through Smith, violated
Section 8(a)(1) because she suffered and encouraged
employees to sign decertification authorizations. We
do not agree. Employee Bobby Rogers testified that
he observed six or eight girls on Smith's assembly
line reading decertification authorizations in the
presence of Supervisor Smith; the authorizations
were passed up the line to Smith by the employees;
and she placed them in a notebook. Rogers worked
on the line next to that of Smith. Although Smith
denied collecting cards from any employees, the Ad-
ministrative Law Judge found that where her testi-
mony conflicts with that of other credited witnesses
it is not credited. Yet, 15 other witnesses , who were
employees on Smith's line, all unequivocally testified
that they never saw Smith with any decertification
papers, never saw her handing them out, and never
saw any papers being passed up or down the line to
her. Even Madden, the subject of the threat by
Smith, who also was working on Smith's line at the
time and who appeared as a witness on behalf of the
General Counsel, did not testify that she saw any
papers being passed up the line to Smith. Employees
Dixie Gail Black and Billy Jean Harrington testified
that they were handed decertification papers while
they were on the line (there is no evidence that this
occurred during working time) by a fellow employee
on the line, but they also testified that the papers
were returned to that employee and were not passed
to Smith. In spite of the Administrative Law Judge's
finding regarding Roger's testimony and Smith's de-
nial of the incident, we find that the overwhelming
weight of all the relevant evidence warrants a con-
trary conclusion. The General Counsel has not
proved a violation based on a preponderance of the
evidence. Accordingly, we adhere to our original po-
sition of not adopting the Administrative Law
Judge's finding that Smith unlawfully suffered and
of Respondents by the Regional Director for Region 10 that they had com-
plied with the Board's Decision and Order and that the case was thereby
closed might have raised procedural questions. However, since the reaffirm-
ance of our initial Decision and Order causes no prejudice to the parties, we
need not reach the issue of the propriety of reconsidering the instant case at
this time
219 NLRB No. 125
VERNON MANUFACTURING COMPANY 623
encouraged employees to sign decertification author-
izations.
2. Around December 7 or 8, 1972, Vernon em-
ployee Marion Ann Rogers Shirey was instructed by
management representatives of Respondent to re-
move her decertification revocation forms from the
plant . The decertification authorizations appeared at
Respondent Vernon's plant on or about November
30, 1972. In the initial decision , we found that the
prohibition against the solicitation of decertification
revocations , while unlawful because of its disparate
nature, had not been shown to have had an impact
on the employees' opportunity to make a choice,
such as might have occurred if there had been similar
disparate action while simultaneous solicitations for
or against the Union were in progress . We reaffirm
that finding.
The record is unclear as to whether employees
were still signing decertification authorizations when
Shirey was instructed to remove her decertification
revocation papers from the plant . Although several
witnesses testified that the decertification authoriza-
tions were being signed around December 7 and 8,
they stated that they did not know the exact date, but
recalled that the signing occurred in late November
or early December . On December 4, 1972, Respon-
dent Vernon received a letter from Hal McClanahan
stating that he had been retained by more than half
of its employees to maintain a decertification against
the Union and that he would forward the necessary
papers to the Board 's Regional Office along with
proof of his authority by December 5. Thus, we are
unable to determine whether the decertification and
revocation solicitations were occurring simulta-
neously . As the record is equivocal as to the dates of
the various solicitations , it was incumbent on the
General Counsel , as part of his burden of proof, to
show that there was an overlap between the decertifi-
cation -authorization solicitation and the effort to se-
cure revocations . Not having done so , it has not been
established , and there is no basis for assuming or
finding, that there was an overlap . There is also no
evidence that the employees knew that there would
be an imminent effort by Shirey to revoke the decer-
tification authorizations . Consequently , there has
been no showing that the unlawful conduct of Re-
spondent Vernon interfered with employee decisions
regarding decertification.
3. Having found that 8(a)(1) violations did not
taint the decertification campaign , we reaffirm our
previous finding that the filing of the decertification
petition with respect to the unit at Vernon raised a
question concerning representation , and that Re-
spondent Vernon 's subsequent refusal to bargain
with the Union and any unilateral changes affected
by it did not run afoul of Section 8(a)(5).
ORDER
In view of the foregoing , and on the basis of the
record as a whole , the National Labor Relations
Board reaffirms its Decision and Order of October
25, 1974, in this proceeding.
MEMBER JENKINS , dissenting:
In our initial determination of these cases, I dis-
cussed at some length my disagreement with my col-
leagues' finding that Respondent Vernon was legally
justified in withdrawing recognition from the Union.
No purpose would be served in repeating those argu-
ments here . It should suffice to say that I am no more
impressed with the majority's rationale on reconsid-
eration than I was originally . Accordingly, I adhere
to the view previously expressed in my dissenting
opinion in these cases.