Wex-Tex of Headland

National Labor Relations Board - Board Decisions

Jun 16, 1978

236 N.L.R.B. 1001 (N.L.R.B. 1978)

WEX-TEX OF HEADLAND
Wex-Tex of Headland, Inc. and South Alabama Joint
Board, Amalgamated Clothing and Textile Workers
Union, AFL-CIO
Wex-Tex of Headland, Inc. and Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO-CLC,
Petitioner. Cases 15-CA-6428 and 15-RC 6057
June 16, 1978
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND ME MBERS JENKINS
AND PENEtI.O
On February 1, 1978, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative Law
Judge's Decision.
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 record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Wex-Tex of Headland,
Inc., Headland, Alabama, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
election campaign, the Respondent engaged in unlawful
interrogation, surveillance, solicited employees' assistance
against the Union. impliedly promised increased benefits if
the Union were unsuccessful and threatened loss of bene-
fits and plant closure if the Union came into the plant. In
addition it is alleged that through its campaign speeches
and written propaganda materials distributed to employees
during the course of the campaign, considered in the con-
text of its other conduct, the Respondent unlawfully cre-
ated an atmosphere which impressed upon employees the
futility of unionization, also in violation of Section 8(a)(l).
Pursuant to a stipulation for certification upon consent
election approved by the Regional Director for Region 15
on March 7, a secret-ballot election was conducted on
April 14 among the Respondent's production and mainte-
nance employees. 2 The Union lost the election, and filed
timely objections. On June 3 the Regional Director issued
his report and directed that Case 15-RC-6057 be consoli-
dated with Case 15-CA-6428 for the purpose of hearing
concerning the Petitioner's Objections 2, 4, 5, 6, and 7,
which directly correspond with the issues raised by the
complaint in 15 CA-6428.
The Respondent's answer, filed June 14, denies the com-
mission of any unfair labor practices. All parties were af-
forded a full opportunity to participate in the hearing. Oral
argument was waived. The briefs, filed by the General
Counsel and the Respondent have been carefully consid-
ered.' Upon the entire record in the case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I JURISDICTION
The jurisdictional allegations of the complaint are ad-
mitted in the answer. Accordingly, I find that the Respon-
dent is a Delaware corporation with an office and place of
business located at Headland, Alabama, where it is en-
gaged in the manufacture or contract production of sleep-
wear products. During the past 12 months, a representative
period, the Respondent, in the course and conduct of its
business, purchased and received goods valued in excess of
$50,000 directly from points located outside the State of
Alabama. During the same period of time the Respondent
sold and shipped goods valued in excess of $50,000 directly
to customers located outside the State of Alabama. There-
fore, I find that the Respondent is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
STATEMENT OF THE CASE
RICHARD L. DENISON. Administrative Law Judge: This
consolidated proceeding was heard on July 18, 19, and 20,
1977, in Dothan, Alabama.' The charge in Case 15 CA-
6428 was filed on April 5. The complaint, issued June 3,
alleges violations of Section 8(a)(1) of the National Labor
Relations Act, as amended, in that, in the context of an
I All dates are in 1977 unless otherwise specified
! The collective-bargaining unit set forth In the stipulation is as follows:
All full-time and regular part-time production and maintenance employees.
including mechanics. cutting room employees, subassembly employees. sec-
ond assembly emploees, finishing dept. employees, pants dept. employees.
Inspection dept. employees. pressing room dept. employees. packing dept.
employees, shipping dept. employees, cleanup dept. employees. and plant
clericals: excluding office clerical employees. professional employees, casual
employees. guards and superv isors as defined in the Act
The (,eneral ('ounsel's unopposed motion to correct the record is grant-
ed.
236 NLRB No. 124
I001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 LABOR ORGANIZATION
I find that the South Alabama Joint Board, Amalgamat-
ed Clothing and Textile Workers Union, AFL-CIO, here-
after referred to as the Union or the Charging Party, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III SUPERVISORY STATUS
In accordance with the stipulation of the parties and the
evidence in the record concerning their duties, I find that
the following named persons, at all times material herein,
have been and are now agents of the Respondent acting on
its behalf and are supervisors within the meaning of Sec-
tion 2(11) of the Act: Sam Wexler, president and plant
manager; Bill Nomberg, secretary-treasurer; Jack Spikes.
plant engineer; Head Supervisor Eunice Johnston: and
Supervisors Nina Killingsworth, Wanaska (Bill) Kelly, and
Mary Deal.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Speeches byi Company President Sam Wexler and
the Group Meetings Conducted byv Wexler and Second
Assembly Department Supervisor Nina Killingsworth
The Union's organizational drive at the Respondent's
Headland, Alabama, plant began during November or ear-
ly December 1976. Shortly thereafter the Respondent be-
gan its own campaign against the Union involving a series
of speeches and group meetings with employees coupled
with an extensive letter writing, notice posting, and leaflet
propaganda drive. At the hearing in this matter employees
Linda Atkinson, Dorothy Jones, Judy Etheridge, Ethel
Jones, Alton York, and Melvin Owens, all active union
supporters, testified at length concerning what was said by
Wexler in his addresses to assembled employees, and about
the remarks made by Wexler and Killingsworth during the
group meetings.4 These employees acknowledged that in
each instance Wexler and Killingsworth read their remarks
from a prepared text. In addition, by stipulation of the
parties, copies of the texts of Wexler's speeches to all em-
ployees on December 15, 1976; and on January 18, March
8, and April 13 were introduced into evidence. Also intro-
duced by stipulation were copies of the texts of the remarks
made by Wexler and Nina Killingsworth at the informal
meetings with groups of approximately 15 employees held
during the weeks of March 21 and April 4.5
Paragraph 8(a) of the complaint alleges that during
Wexler's first and last formal talk to assembled employees
in mid-December 1976 and on April 13, he impliedly
promised them increased benefits if the Union were defeat-
ed. An examination of the text of Wexler's December 15
address reveals no such promise. The only references to
Judy Etheridge did not attend the meeting in which Wexler delivered his
third speech. Alton York and Melvin Owens did not attend either of the two
informal group meetings
5 There were no reservations by an) of the parties in connection with the
stipulations entered into with respect to any of these dolcuments.
benefits occur in connection with statements cautioning
employees that union organizers would promise them rais-
es and benefits, which they might not later be able to deliv-
er, and another segment of the talk reminding employees
that the Company is the one who provides their jobs, the
equipment with which they work, their wages, pension
plan, hospitalization program, and the cost of their bene-
fits. Likewise, the only reference to benefits in his April 13
speech described how employees do not receive pay or
benefits in the event of a strike. The only references to
promises by Wexler occurred when he stated, "As you
know I'm not allowed to make any promises at this time,
but I can promise you this. As long as you do the good
work that you've been doing in the last few weeks and
continue to work closely with management we will contin-
ue to make progress and continue to make this Company
the best possible place to work for everyone." Thus, it is
clear that the texts of Wexler's December 15 and April 13
speeches contained no unlawful implied promises of bene-
fit as alleged in paragraph 8(a) of the complaint.
However, although not alleged, the General Counsel ar-
gues for the first time in his brief that Wexler made such
implied promises of benefits in answering questions which
employees allegedly posed to him during the December 15
and January 18 meetings. Counsel for the General Counsel
refers to the testimony of Dorothy Jones, that in response
to a question from an employee concerning whether he
could make any promises Wexler replied, "No, that he
might go to jail if he made any promises now." Also the
General Counsel points to Ethel Jones' testimony that dur-
ing Wexler's second talk in response to a question by em-
ployee Blondell Turner concerning the possibility of a paid
vacation during the Christmas holidays, Wexler answered,
"he couldn't right then, that he couldn't make no prom-
ises." These two remarks comprise the only evidence dis-
cussed by counsel for General Counsel in their brief in
connection with the allegations of paragraph 8(a). I find
that they are insufficient to support the violations alleged.
The record reveals that Ethel Jones changed her testimony
on cross-examination, stating that Wexler said he couldn't
answer the question and couldn't make any promises be-
cause he didn't want to get sued. In view of the two entirely
different versions which she gave, I find her testimony con-
cerning this incident unreliable. I likewise do not credit
Etheridge's testimony in this respect, since other witnesses
adduced by the General Counsel supported Wexler's testi-
mony that he did not deviate from the text during his ad-
dresses. For example, Linda Atkinson testified that Wexler
refused to answer Blondell Turner's question stating that,
"if he answered questions like that he'd have egg all over
his face." Also Dorothy Jones remembered Wexler stating
at the first meeting that he didn't want to answer questions
"off the top of his head." Concerning subsequent meetings
held with the Company these employees, and others, testi-
fied either that there were no questions or that Wexler did
not answer them. Finally, in any event, I cannot agree with
the argument advanced by counsel for General Counsel
that the use of the words "now," or "right then," or "at this
time" (appearing in the second complete paragraph on
page 2 of Wexler's April 13 speech) when used following
the statement that he could not make any promises, in
1002
WEX-TEX OF HEADLAND
some way imply a promise of benefits to be received at a
later time. This argument is illogical and, based upon an
assumption, unsupported by any evidence. The Board has
often cautioned that it is precisely this type of semantical
gymnastics that Congress intended to guard against when
Section 8(c) was made a part of the Act. I find that the
Respondent has not violated Section 8(a)(l) of the Act by
impliedly promising employees increased benefits if the
Union were unsuccessful.
Paragraph 8(c) of the complaint alleges that at Sam
Wexler's first, second, and third speeches on December 15,
1976, January 18, and March 8 he threatened to close the
plant if the Union came in. Wexler denied having ever
made this statement in any of the meetings which he con-
ducted, and a careful examination of the texts of his
speeches and remarks during group meetings reveals that
no such statement was made.6
However, the General Counsel in his brief refers to seg-
ments of the texts of Wexler's December 15, 1976, and
March 8 speeches as supporting this contention. Thus, the
first complete paragraph on page 6 of Wexler's December
15 address states:
I say we have a good record, we have a lot to be
proud of, and we all have a lot to be thankful for. This
is a good time to count our blessings. We have a good
reputation with our customers and that is most impor-
tant. As a contractor, we must be reliable and depend-
able. Our customers want to know they are going to
get their goods on time and that we are going to pro-
duce quality merchanise. We have built a fine reputa-
tion with our customers and that is (sic) meant em-
ployment and security for you. What are our
customers going to do if we become involved in union
strikes or if our operations are disrupted by union in-
terference and we can't produce? I'll tell you what
they're going to do-they are going to look for anoth-
er factory or another contractor and we're going to
lose their business. We must remain reliable and de-
pendable and we must avoid union strikes if we are
going to keep our customers, stay in business, and
continue to provide jobs for you.
In a similar vein, on March 8 Wexler said:
A strike is very serious for any company, but for us,
it is even more serious. All of you know the kind of
business we're in. We're in the contract business. We
don't have our own label, and we don't sell our own
goods. The only thing we do is make goods for other
companies. Those companies give us their business be-
6 When compared with the stipulated texts of Wexler's and
Killingsworth's remarks at the various meetings referred to above, it is clear
that the testimony of the General Counsel's employee witnesses about what
was said at these meetings is incomplete. imprecise. and frequently placed
Wexler's remarks in improper sequence. Although I draw no inference that
these employees intentionally omitted or distorted portions of Vhexler's and
Killingsworth's remarks in their testimony, it is clear that they were simpl?
incapable, as would a vast majority of human beings, of accurately relating
with any degree of precision or completeness all of what was said in each of
these addresses. I therefore find that the texts of the remarks made by
Wexler and Killingsworth during the four speeches and two group meetings
are the only reliable accounts, and they alone are credited
cause they know they can depend on us. They know
that when we say we'll have their goods ready on a
certain day, then they are going to be ready on that
day. If anything happens which causes us not to be
able to deliver on time, then our customers will prob-
ably go somewhere else and get another contractor to
do their business. Once we lose those customers, I
don't know if we'll ever be able to get them back. Of
course, if we lose all our customers and can't get them
back, you know what that means. No business means
no company, and no company means no jobs. None
of us should want to take those kind of risks.
Wexler's January 18 and April 13 addresses contain no
references whatsoever in the area of plant closings or loss
of business. The only other references associated with the
topic of plant closure occurred during the two group meet-
ings conducted by Wexler and Killingsworth during the
weeks of March 21 and April 4. Thus, in the March 21
meeting Wexler described a strike at Prepmore Apparel in
Russellville, Alabama, and Killingsworth related the events
which led to the closing of Magnet Mills, Inc., in Clinton,
Tennessee. At the April 4 group meetings Wexler quoted
statistics published by the American Apparel Manufactur-
ers Association concerning declining employment and
plant closures in the apparel industry, and Killingsworth
handed out copies of liquidation notices of other compa-
nies as she remarked:
No one here should think that the problems in the
garment industry have ended. They haven't. Plants all
over the country are continuing to close every day. I
doubt very seriously if more than a week or two goes
by where we don't receive some sort of notice that a
garment plant is closing and all its equipment is up for
sale.
Take a look at these notices which we've received
just in the last few weeks. As you can see from these
notices the plants are being sold, the sewing machines
are being sold, and all other equipment is being sold.
The only thing you don't see mentioned in these no-
tices are the employees. What happened to all the peo-
ple who worked at these plants. They're all out of
work -that's what happened.
No time is a good time for a union, but now is the
worst possible time of all. With all these plants closing
and employees losing their jobs the last thing on earth
any of us needs to get involved with is a union with
strikes and other problems. We need to join closer to-
gether and do the best possible work in order to keep
the good job security that we have enjoyed for so long.
The Respondent argues that since Wexler did not say, in
so many words, that Wex-Tex would close if the Union
came in, but merely warned employees of a potential dan-
ger which could result from a union strike inhibiting pro-
duction and prevrenting timely deliveries to customers, no
unlawful threat of plant closure in violation of Section
8(a)(1) of the Act was made. The General Counsel argues
that the sum total of Wexler's remarks considered "in the
context of Respondent's antiunion campaign emphasizing
strikes, violence, plant closures, and loss of jobs, the impli-
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation to employees was that 'union trouble' would mean
the loss of contractors and the closing of the plant." I
agree. To state it another way, in my view Wexler and
Killingsworth spend an inordinate amount of time repeat-
edly emphasizing to employees the risk of plant closure
evolving from strike situations. Wexler's remarks must be
considered in the context of what was literally a deluge of
written propaganda, stipulated into evidence, consisting in
substantial part of copies of newspaper articles about clo-
sures at other plants (some of which contained editorial-
ized headings and annotations underscoring closures at or-
ganized plants). It is clear that the danger of plant closure
was reiterated to the employees to such an extent as to
establish a clear intent by Respondent to convey the mes-
sage that their plant would also close and they would be
out of a job if the Union came in.7 Thus, I find that the
Respondent violated Section 8(a)(l) of the Act in that the
Respondent's overemphasis of the prospects of plant clo-
sure considered in the total context of its antiunion cam-
paign rendered Wexler's remarks in his addresses the
equivalent of a direct threat that Wex-Tex would close if
the Union were successful in organizing the plant.
Paragraph 8(d) of the complaint alleges that during the
March 21 group meeting Wexler threatened employees
with the loss of unspecified benefits if the Union were suc-
cessful in the upcoming election. The only segment of
Wexler's March 21 remarks which alludes to the loss of
benefits states as follows:
We promised to show you documented facts to back
up everything we said about this union and this part
about promises is no exception. This is an official
pamphlet published by the National Labor Relations
Board explaining the law and everyone's rights. Listen
to what the pamphlet has to say about bargaining:
The give and take of the bargaining table usually
leads to written agreements, although neither side is
obligated to agree to a particular proposal.
Now, that's in legal, government talk, but it means in
plain, simple English that the Company has the right
to say no. So, the next time you hear any of these
union pushers talking about what they can and can't
do for you-just remember that there's no way in the
world they can guarantee to do anything.
There is one specific union promise you should be
doubly careful to watch out for. I've heard that the
union has told some people that there is no way you
can lose with the union. The union wants you to be-
lieve you can only gain. That's not true. You can lose
with the union. Do you know what a union contract
7 ther aspects of Wexler's remarks in his speeches and group meetings
clearly support the correctness of this conclusion. The central theme which
the Respondent drove home to the employees again and again, as discussed
further in sec. IV, E of this Decision, was that if the Union won the election,
it would have to bargain with the Company to fulfill all of its man)y prom-
ises to the employees. All that the law required the Respondent to do swas
bargain with the Union and in doing so the Company had the right to say
no to the Union's demands. If the Company steadfastly rejected the Union's
demands, the only thing the Union could do was strike. A strike would
result in the loss of jobs through the Company's efforts to continue produc-
tion through the use of strike replacements, or through plant closure.
looks like when you sit down and first begin bargain-
ing? It looks just like this. (Hold up blank piece of
paper.) That's right, it looks just like a blank piece of
paper. Nothing is on this paper and nothing goes on
this paper until the Company agrees. Your present pay
isn't on this paper and neither are your present bene-
fits. Bargaining between the Company and the Union
starts from scratch and many employees have found
out the hard way they have a lot to lose. After all,
what does bargaining mean? It means give and take. It
means I'll give you something if you'll give me some-
thing. What does the union have to give me in return
for me giving them something? The only thing they
have is to agree to take something away from you. I
don't want to see that happen. I don't want to see
anyone in this room lose anything they have. How-
ever, each and everyone of you should understand
that it's a definite possibility.
The General Counsel urges that Wexler's references to
the employees' present benefits were not appearing on the
"blank piece of paper," and his mention that it was a defi-
nite possibility that the Union might agree to permit the
Company to take something away from them constitutes a
threat of loss of benefits in violation of Section 8(a)(1). 1
disagree. A careful reading of Wexler's remarks, as quoted
above, disclosed that Wexler was alerting employees to the
possibility that through the process of give and take in-
volved in collective bargaining it was possible that their
collective-bargaining representative might decide to trade
some benefit away in return for something it desired to
obtain for them. The Board has recently held that such
remarks in a speech to employees did not violate Section
8(a)(1) of the Act (including a reference to bargaining com-
mencing with a blank piece of paper) where such state-
ments were intended to inform employees of the economic
realities of the collective-bargaining process and carried no
implication that any benefit would be taken away unilater-
ally. Ludwig Motor Corp., 222 NLRB 635 (1936). 1 find that
Wexler's March 21 remarks concerning any possible loss of
benefits through the collective-bargaining process were
protected speech under Section 8(c) of the Act, and that he
did not violate Section 8(a)(1) of the Act as alleged in para-
graph 8(d) of the complaint.
B. The Alleged Solicitation of Employees in Assisting the
Respondent Against the Union
Paragraph 8(b) of the complaint alleges that on or about
January 6, Wexler solicited employee assistance against the
Union. Thus, around the first of January Sam Wexler ap-
proached Alton York, alone, in the shop, about noon, and
said he wanted to talk to him about the Union. Wexler said
he was definitely against the Union because he did not
think the Union would benefit the Company or the em-
ployees. He asked if maybe York could say something
"along those lines" to them that would help the Company.
York answered that he didn't think he could talk that way,
and the conversation ended.
On January 5 or 6, Wexler approached Melvin Owens
while he was alone in the center aisle of the plant. He asked
1004
WEX-TEX OF HEADLAND
how Owens felt about the Union. Owens responded that he
had not made up his mind at that time, to which Wexler
answered that it seemed like they had "a communications
gap." Owens answered that they did, and that on several
occasions he had mentioned this fact to his wife and to
other employees. Then Wexler asked that if any of the girls
asked Owens anything about the Union would he tell them
that it was not good for them or the Company. Owens
answered no, he could not, and that he thought everyone
had already made up their minds. Wexler expressed his
disagreement with this conclusion, and asked Owens to
surrender his key to the plant because "he didn't want me
put in a position that someone could come to me and say
that you have a beautiful granddaughter-I want your
key." The conversation ended when Owens replied that be-
fore he would sabotage any company equipment he would
give back the key.
Wexler exhibited an uncertain memory in testifying con-
cerning these incidents. He recalled one conversation in
which York accused him of receiving a kickback from em-
ployees' group insurance, but stated that he didn't remem-
ber whether or not he had any other conversations with
York in which the topic of the Union arose. Wexler also
admitted having a conversation with Owens in the shop in
which, as Owens testified on cross-examination, Owens
agreed not to talk for or against the Union any more. He
claimed that the discussion of the key occurred at another
time. In other respects Wexler's testimony concerning this
conversation was vague and obviously incomplete. Under
these circumstances I credit the testimony of Owens and
York. Since it is clear, based on Owens' and York's credi-
ble testimony, that Wexler did in fact solicit the assistance
of Owens and York in talking to other employees against
the Union, I find that by engaging in this conduct the Re-
spondent violated Section 8(a)(1) of the Act.
C. The Interrogation of Dorothy Jones by Plant Engineer
Jack Spikes
According to employee Dorothy Jones, Jack Spikes ap-
proached her in February and asked her if she had heard
about the Union. 8 Jones testified that Wexler and Spikes
had been touring the plant asking employees if they had
any questions about the Union, and on this particular oc-
casion Spikes approached her and asked if she had heard
about the Union. She replied "Yes." Then Spikes asked if
anybody had talked to her about the Union. When Jones
answered "No," Spikes asked is there anything you want to
know about the Union? Jones again answered "No," and
Spikes said that if there was anything she wanted to know
about the Union to let him know. Spikes remembered the
conversation, and admitted that he probably asked her if
anyone had talked to her about the Union.9 I credit Jones'
s Jones exhibited some confusion concerning the date of this conversa-
tion. At another point in her testimony she stated that this conversation
occurred in November 1976, but also testified that it occurred after Wexler's
speeches about the Union had begun. Since Spikes agreed that the conversa-
tion occurred "after the first of the year." I find that the November date is
in error. In view of the fact that most witnesses have difficulty with dating
events, I do not find that Jones' error In this respect adversel) affects the
credibility of her testimony concerning the conversation.
testimony and find that the Respondent, through Spikes,
violated Section 8(a)(1) of the Act by engaging in coercive
interrogation.
D. The Alleged Surveillance of Meh'in Owens and Alton
Y'or
Alton York and Melvin Owens are employed as mechan-
ics by the Respondent. Their duties require them to be
constantly roving throughout the plant making repairs, pri-
marily on the operators' sewing machines. It is undisputed
that prior to the commencement of the union campaign the
mechanics and the operators talked among themselves
freely while working without criticism or restriction by
management. Moreover, there is an absence of evidence in
the record to show that the Respondent had ever promul-
gated, maintained, or enforced any type of no-solicitation
or no-distribution rule. York and Owens were among the
earliest and most active of the Union's employee organiz-
ers. In their testimony they described how they talked in
favor of the Union while they worked on the machines of
the operators, and at times solicited card signatures from
them while making repairs dunng working hours. It is clear
that Company President Sam Wexler knew of York's and
Owens' prounion sympathies at least as early as the conclu-
sion of Wexler's January 18 speech, at which Owens chal-
lenged a portion of Wexler's talk."° It is undisputed that on
or about January 26, pursuant to orders from Sam Wexler,
Head Supervisor Eunice Johnston began following Melvin
Owens, and Second Assembly Department Supervisor
Nina Killingsworth began following Alton York. Except
for short, sporadic periods when Inspection Supervisor
Wanaska (Bill) Kelly relieved Killingsworth and Plant En-
gineer Jack Spikes substituted for Johnston, Killingsworth,
and Johnston followed York and Owens closely through-
out each workday, while the mechanics were in the opera-
tors' working areas, until April 14, the day of the election.
It is conceded that during this time they took notes, in
evidence, concerning which operators' machines York and
Owens repaired, the order in which the repairs occurred,
and the amount of time devoted to each. The General
Counsel contends that this activity on the part of Respon-
dent's supervision constitutes unlawful surveillance in vio-
lation of Section 8(a)(1) of the Act. The Respondent argues
that the following of York and Owens by company super-
vision was not unlawful in that its only purpose was to
insure that the operators' machines were repaired promptly
and in the customary first-come. first-served basis. Sam
"I find Spike' other testimnons that he began the conversation by telling
Jones that if she had any questions concerning union activities the members
of the Compans would be more than happs to answer them or consult or
talk to her about any problems she had, inconsistent with this subsequent
admission.
0 As found earlier in this Decision, during the first week in January both
York and Owens refused Wexler's request that they assist the Company In
talking to employees against the lUnion. Shortls thereafter York and Wexler
had a conversation about insurance benefits in which York asked why these
benefits were not improsed, and Wexler remembered York accusing him of
getting kickbacks on emploiees' group insurance Later that das Supervisor
Nina Killhingsorth discovered York talking to an operator about the Union
and joined in the conversation to talk in favor of the Company Finally.
Wexler agreed that he knew that ork and Owens favored the Union pnor
to Jainuar' 2t
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wexler testified that this systematic observation of the
work activities of York and Owens was instituted at his
direction after he received reports from Jack Spikes, and
other supervisors whose names he could not recall, during
the last week of January to the effect that employees were
having trouble getting their machines repaired. According
to Wexler, Spikes reported that it "appeared" that the emt-
ployees who were having difficulty were those who were
not in favor of the Union.
I am persuaded that the Respondent instituted the pro-
cedure of keeping York's and Owens' workday activities
under surveillance for the purpose of harassing them, in
full view of the other employees, and to inhibit their talking
in favor of the Union and their otherwise unrestricted
card-solicitation activities. There is no evidence that either
York or Owens actually failed to work on any employee's
machine in other than the formal first in, first out order.''
Jack Spikes testified that, on an unspecified day in Janu-
ary, Supervisors Ollie Carpenter and Eunice Johnston re-
ported to him that Machine Operators Carolyn Watson,
Lucille Morgan, and two or three other employees were
having difficulty in getting their machines fixed by the me-
chanics. Spikes instructed Carpenter to tell Melvin Owens
to go and fix Carolyn Watson's machine. When Owens did
not do so immediately, Spikes personally issued these in-
structions to Owens, and in 10 minutes the machine was
fixed. According to Spikes, he reported this to Wexler, who
issued instructions "to police each one and see where they
worked at what particular time of the day." However, con-
trary to Wexler's testimony, Spikes made no mention of
any report on his part to Wexler concerning the mechanics'
allegedly selecting machines to be fixed on the basis of
employees' prounion sympathies. He also testified, as did
Killingsworth, Kelly, and Johnston, that when Wexler in-
structed the supervisors concerning how the "policing" was
to be carried out, no mention of York and Owens making
repairs on the basis of union activities was made. I there-
fore find and conclude that the Respondent was in no way
motivated, at the time the surveillance program was insti-
tuted, by any reports that York and Owens were repairing
machines in an order dictated by their knowledge of any
employees' pioultion or antiunlion sympathies.
Therefore, the issue further condenses to one of whether
the Respondent's surveillance of York's and Owens' work
was motivated by complaints of their failure to fix opera-
tors' machines promptly and in proper order, or whether
the action taken by the Respondent was designed to keep
their union activities under surveillance and to harass them
and inhibit their contacts with other employees. I find that
it is clear that the latter purpose is what actually impelled
the Respondenl's action. Wexler testified that he never per-
sonally reviewed the notes which were so carefully taken
by the supervisors watching York and Owens, but relied on
reports by Spikes. It is clear from Spikes' testimony that he
never made any thorough analysis of these notes and in
fact gave them only a cursory inspection. He testified that
im To complicate matters further there is undisputed iestimon) in the iec-
ord that occasionally priority situations arose which required repairs iout fI
order. but there is no exidence t hat specific priority situations either did -r
did n ot arisr d lut in th e ti iiid iof hne i n questll n
they did not reveal anything specific that needed changing
and that the complaints about Owens and York were "min-
imal," and that after Owens and York were placed under
surveillance he could not remember the names of any of
the employees that complained and did not keep any rec-
ords of their reports."2
I must therefore find and conclude that the following of
York and Owens, and the close watching of their every
move in their contacts with the machine operators, was
prompted by some reason other than that espoused by the
Respondent. Against the background provided by the tim-
ing of the surveillance period, which ceased on election
day, the almost complete preoccupation of the Respon-
dent's production supervision in watching the activities of
2 out of (according to Spikes) 150 employees, and the
plainly false reason provided by the Company for its ac-
tion, the Respondent's motive is clearly revealed in York's
credited testimony concerning two conversations he had
with Nina Killingsworth as she followed him and observed
his work. Thus, on the first day of the surveillance when
York told Killingsworth that he realized she was following
him, she replied that she hated to do it and had stayed up
all night and cried about it, but it was something she had to
do. York responded that maybe both of them could learn
from the experience and that he could probably show her
something as far as how the machines operated, and she
could show him some things. About 2 weeks later, while
York was working on a hem-sleeve machine in Ollie
Carpenter's department, he again asked Killingsworth why
she was following him, and Killingsworth replied that he
wasn't supposed to talk about the Union.13 It is therefore
clearly established that prior to the time any specific em-
ployee complaints were actually received by the Company,
I his testimony is inconsistent with that of Wexler who testified that it
was after the "policing" procedure was inaugurated that the Company be-
gan receiving specific reports about difficulties with the mechanics in get-
ting repairs made on the machines. Wexler's testimony, in this respect, is
supported by that of C(arolyn Watson, Eunice Baker. and Doris Meredith,
the only three employee witnesses presented by Respondent concerning
complaints about York's and Owens' work. A close examination of their
testimony on both direct and cross-examination clearly reveals that any
complaints they may have made about the mechanics occurred after the
surveillance program had started.
" Killingsworth admitted having two such conversations with York
around the times and at the places where York testified they occurred.
According to Killingsworth. during the first conversation York asked why
she was following him and stated that he knew Wexler was responsible for
it. Killingsworth responded that Wexler had not made her do it, but had
asked her to follow York and she agreed to do it. She said that as long as she
worked for Samn or the Company she would be loyal to the Company and do
what was asked of her, and that since she and York had been friends for
mariy years she hoped York would not cause anything to come between
their friendship. She stated that perhaps she could learn to work on some of
the machines in order that she could perform little odd jobs when the me-
chanics were unable to get to the machines. Killingswvorth denied making
an)l statement concerning crying about Wexler's instructions to her to fol-
low Yolk. but did not deny that other statements may have been made
during the conversation. Instead, she ended her account by saying that she
could not remember anything else that happened. Concerning the second
conversation Killingsworth remembered York asking her what she was
doing, as he worked on a machine and talked to the operator. According to
Killingsworth, she responded that she was listening to them talk. She denied
ever telling York that he was not supposed to talk about the Union. but
again displayed difficulty in remembering the complete conversation in-
volsed in the incident. I find that York displayed a better memory than did
Killingsworth and consequently find his more detailed account to be the
moist reliahle V ersion.
1006
WEX-TEX OF HEADLAND
and without any prior investigation of the matter, the Re-
spondent instituted a systematic surveillance program de-
signed to harass and interfere with the legitimate union
activities of two of the leading employee organizers in a
manner which clearly and openly advertised to most of the
employees in Respondent's plant that they were known ac-
tivists, and that any contacts with them would be closely
observed. Thus, the Respondent violated Section 8(a)(1 ) of
the Act.
E. The Atmosphere of Futility Allegedly Created iby the
Respondent's Campaign Speeches and Written Propaganda
Paragraph 10 of the complaint alleges that the Respon-
dent's campaign speeches, letters, literature, posters, leaf-
lets, and pamphlets, when considered in the light of the
various unfair labor practices committed by the Respon-
dent, were designed to impress upon the employees the
futility of continued support and assistance of the Union.
thereby violating Section 8(a)(1) of the Act. I agree.
Against the background of its other unlawful conduct, as
described in earlier sections of this Decision, the Respon-
dent literally inundated its employees with an avalanche
of propaganda which for the most part contained one basic
theme. The message, repeated again and again with the
utmost clarity, was that the Union would make promises to
the employees which could only be brought to fruition if
the Company agreed. The law gave the Company the right,
in bargaining, to say no. The forcefulness with which this
latter point was emphasized clearly created the impression
that the Company would say no, in which event the
Union's only recourse would be to call the employees out
on strike. If a strike occurred, the Respondent would find it
necessary to replace employees in order to maintain produc-
tion. Then followed, as an explanation concerning what a
strike entailed, a tremendous volume of material plainly
designed to foster an inescapable conclusion that strikes
always involved serious violence, loss of jobs, economic
suffering, and plant closure. The quantity of specific exam-
ples, obviously selected because of their violent nature and
descriptions of dire economic circumstances, are indeed
overwhelming in and of themselves. When, as in the case of
Respondent's leaflets and posters, in evidence, these items
are considered in the light of editorialized headings (in
some cases informally hand printed with circles and arrows
and in other instances printed in conjunction with newspa-
per articles in such a manner that the uninformed might
conclude that the comments were a part of the article it-
self), there can be no doubt that the Respondent intended
to create and did create a devastating impression that it
would be futile for the employees of Wex-Tex to vote for
the Union because to do so would only result in the repeti-
tion of what was portrayed to be an unvarying pattern of
violence, economic harm, and plant closure. In so doing
the Respondent represented the employees' choice of
whether or not to vote for the Union in terms limited to the
consideration of what might be achieved by a strike, and
not to a realistic evaluation of what might be achieed ill
the give and take of collective hargainini laxl ing dols so,
the Respondent then proceeded to demonstrate that :
strike, precipitated by the C(ompany's intrarsigence. ,ould
accomplish nothing and would end in total disaster. The
Board has previously held that similar presentations on the
part of an employer violates Section 8(a)(1) of the Act. and
I so find in this instance.
CONC(.lUSIONS OF LAW
1. The Respondent is an employer engaged In commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating, harassing, and surveilling employees
with respect to their union activities: by soliciting em-
ployees' assistance in its antiunion campaign: by threaten-
ing plant closure if the Union succeeded in organizing the
plant: and by threatening and conveying to employees the
impression, based on its total conduct including campaign
propaganda, that the selection of a collective-bargaining
representative would be futile, the Respondent violated
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not violated the Act in any re-
spects other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order that
the Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act, including posting appropriate notices at its Head-
land, Alabama plant. I shall also recommend that the Peti-
tioner's objections which occurred during the critical pe-
nod be sustained, and that the election held on April 14 be
set aside and a new election held.l 4
Upon the foregoing findings of fact and conclusions of
la,. upon the entire record and pursuant to Section 10(c)
of the Act. I hereb' issue the following recommended:
i4 No esidence concerning the date fi the filing of the np:ition In Case
15 RC 6057 uas placed in the [rcrnd The Regional Drector's Renpot ,n
()bjectnons and Order Directing lteainrg on Obhjection,, daed June 1917.
referred onl's to the Regilsnal Direc: r'ts \Marh 7 appro;ai a:f a Stipulation
ifo ( ertification Upon (ronsellt lurtitrn ihiough there is a reference to The
completion if election arrall:eemeni. in th. Respondetnt s letter to ail ern-
plhoees dated Februatr 28 1977 Ne erthieles, it Is ileat that at least o)n¢
,,f the Responde;!t' speeihes i ntalning threatened plan: cilo..lTe aind myu
of the Respondernt's message concernmnc the futilts of wrwam.,aln
curredi ,ithin the or:iicaln period, since the Respondent's Frrparlndt:i cam-
paign. hosed upon th:s Ihenet. .ar niaint ,!id up until the end r ,f the eie-
tion I ike;se, tihe u;,elllance and in t l err nce ' ithli 'ro:k . and t.v, ens
union Nactl:viies icnllued ueti:l the tas of the eleclitn Ti tu, it , cl':l; thit
a siihbsantial portiion of the ohbjestonal conduct attribu.cd i, the Respon
dent occurred sl.hin Itle cr t;ca! Iper.od sperited hN the Biard In d ait'lli
[ ite i tr rnd Vn itJ i, wturdi'l I i?;t!~!/!. ! a 4 NI R R 2?s ! l,: I
1007
DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
ORDER '5
The Respondent, Wex-Tex of Headland, Inc.. Headland.
Alaharna, its officers, agents. successors, and assigns, shall:
1. ('case and desist from:
(a) IEngaging in interference with, harassment, and sur-
veillance of its employees' union activities.
(b) Interrogating employees concerning their union ac-
tivities.
(c) Soliciting employees' assistance in the antiunion
campaign of the Company.
(d) Threatening employees that the plant will close if the
Union succeeds in organizing the plant.
(e) Threatening employees by creating the impression
that their support of the Union will be futile in that a suc-
cessful union organizational drive would inevitably result
in the breakdown of negotiations. a violent strike, loss of
jobs, economic suffering, and plant closure.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its Headland, Alabama, plant copies of the
attached notice marked "Appendix." 16 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 15, after being duly signed by an authorized represen-
tative of the Respondent, shall be posted by it immediately
upon receipt thereof, and maintained for 60 consecutive
days thereafter, in conspicuous places, including all loca-
tions where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
' In the exent eni exceptions are fled is Iroided h, Sec. 1)2. 4 t, of the
Rules and Reglplatl.os ' f the N atinor l l t r Reli tioll Board, the findilgi ,
coinclusions. and recomlnmended Order herein shall, as pro'idedlr in Sec.
102.48 of the Rules and Regulations. he aid.pted h, Ihe Board and heeorine
its findinigs. conclusions. and Oider and ill ibjehtions thereto shall he
deemed waived for all purposes.
i1 In the event thai the Board's Order :, e!lflied hb a Judgmenlt of
t nited States ('our! of Appea;ls, the word i li th ilotice reading "Po ted hi
Order Aif the Naliornal Iiabor Relat ils tBoard" 'hiall read "Porsted Puirsuant
to a Judgment! of the 1 nlitel Staltes (Courtl , Appc;ls Inriforcing an Order of
the Nalional Labor Relations Boiard.
In view of the findings herein, IT is FURTHER RECOM-
MENDED that the Union's objections which fall within the
critical period, as set forth in the Regional Director's Re-
port on Objections and Order Directing Hearing on Objec-
tions, and his Order Consolidating Cases and notice of
hearing, dated June 3, 1977, be sustained, and that the re-
sults of the election of April 14. 1977, be set aside and a
new election directed.
II IS FURrHER R.(COMMENDED that the complaint be dis-
missed in all other respects.
APPENDIX
NoTiCE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law, and we have been ordered to post this notice. We
intend to carry out the Order of the Board and abide by
the following:
WE WILl. NOr engage in surveillance of, nor will we
harass or interefere with, our employees' union activi-
ties.
WE Wili NOI interrogate our employees concerning
their union activities.
WE WILL NOT solicit employees' assistance in any an-
tiunion campaign conducted by the Company.
WE Wl.l NOT threaten employees that the plant will
close if they select a labor organization as their collec-
tive-bargaining representative.
WE WILL NOT threaten our employees by creating the
impression that their support or selection of a collec-
tive-bargaining agent would be futile and inevitably
result in the breakdown of negotiations, a violent
strike, loss of jobs, economic suffering, and plant clo-
sure.
WE WILi NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed under Section 7 of the Act.
All our employees are free to engage in union activities
on behalf of any labor organization, or concerted activities
for the purpose of collective bargaining or other mutual aid
or protection. Our employees also are free to refrain from
any or all such activities.
Wi x-Ti.x ot H ADI AND. INC
1 (X)8