The Duplan Corp.

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, and upon the entire record in this case, it is recommended that the amended complaint herein be dismissed. spondent on behalf of the Union , the Respondent would have been properly charged with a violation of the Act. The complaint was not so narrowly drawn as to preclude proof of either of these matters , and under well-established rules of pleading , in ruling on a motion to dismiss, the Board was entitled to construe the complaint most favorably to the General Counsel . As these considerations would suffice to explain the Board 's action in reinstating the complaint, it seems permissible to regard such action as not necessarily dispositive of the issues before me. The Duplan Corporation (Forsyth Division ) and Brice C. Oakley The Duplan Corporation ( Forsyth Division) and Textile Workers Union of America, AFL-CIO-CLC The Duplan Corporation ( Forsyth Division ) and Textile Workers Union of America, AFL-CIO-CLC. Cases No,. 11-CA-1886, 71-CA-1922, and 11-RC-1611. November 76, 1962 DECISION AND ORDER On August 1, 1962, Trial Examiner Harold X. Summers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent has engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, and recommending further that the elec- tion conducted on May 3, 1962, in Case No. 11-RC-1611 i be set aside, and a new election held, as set forth in the attached Intermediate Report.2 He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Intermediate Re- port, but no supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 'Pursuant to a Decision and Direction of Election issued by the Regional Director for the Eleventh Region on April 6, 1962 (not published in NLRB volumes). 'On the basis of an investigation of objections to the election held May 3, 1962, the Regional Director issued a Supplemental Decision and Direction (Case No. 11-RC-1611) in which he determined that certain issues raised by the investigation could best be re- solved by a hearing. The Regional Director subsequently issued an amended order con- solidating the "C" cases herein with Case No . 11-RC-1611 for hearing and calling for a report to the Regional Director in Case No. 11-RC-1611 On June 11 , 1962, the Supple- mental Decision and Direction was further amended to the effect that the Trial Examiner's recommendations in the "R" case should be directed to the Board 139 NLRB No. 87. THE DUPLAN CORPORATION (FORSYTH DIVISION) 1029 mediate Report, the exceptions , and the entire record in these cases, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the. Trial Examiner.' IT IS FURTHER ORDERED that the election of May 3, 1962, be, and it hereby is, set aside, and Case No. 11-RC-1611 is hereby remanded to the Regional Director for the Eleventh Region for the purpose of conducting a new election at such time as lie deems the circumstances permit the free choice of a bargaining representative. J The penultimate sentence of the notice is hereby amended to read. "This notice must remain posted for 60 consecutive days from the date of posting . . ." instead of stating "60 days from the date hereof." INTERMEDIATE REPORT AND REPORT ON OBJECTIONS An unfair labor practice charge (Case No. 11-CA-1886 ) having been filed by Brice Oakley, an individual, on January 26, 1962, against The Duplan Corporation (Forsyth Division), the General Counsel issued a complaint on March 13, 1962, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) of the Act; and an unfair labor practice charge (Case No. 11-CA- 1922 ) having been filed by Textile Workers Union of America, AFL-CIO-CLC, on March 16, 1962, against Respondent, the General Counsel of the National Labor Relations Board issued an order consolidating Cases Nos. 11 -CA-1886 and 11-CA- 1922 and an amended consolidated complaint on April 18, 1962, alleging that Re- spondent had engaged in unfair labor practices in violation of Section 8(a)(1) of the Act A second amended consolidated complaint was issued on June 5, 1962. Respondent, in due time either before or at the hearing, filed anwsers to the various complaints ; it admitted certain allegations, denied others , and denied the commis- sion of any unfair labor practices. Meanwhile , in Case No. 11-RC-1611 , on the basis of an investigation of objec- tions to an election filed on May 7, 1962, the Regional Director for the Eleventh Region on June 5, 1962, issued a Supplemental Decision and Direction in which he determined, among other things, that certain issues raised by the investigation could best be resolved by a hearing thereon. On June 5, 1962, the Regional Director issued an amended order consolidating Cases Nos. 11-CA-1886, 1l-CA-1922, and 11-RC-1611 and a notice of hearing on the second amended consolidated complaint and on the issues framed by the Supplemental Decision and Direction.' A hearing was held before Trial Examiner Harold X . Summers at Winston- Salem, North Carolina, on June 13 and 14, 1962. At the hearing, the complaint was amended in certain respects , and the amended matters were duly answered ; also, the Regional Director narrowed the scope of the issues with respect to Case No. 1 1-RC- 1611 2 All parties were afforded full opportunity to present evidence , to examine 1 The notice of hearing, as originally issued , called for an Intermediate Report in Cases Nos. 11-CA-1886 and 11-CA-1922 and for a report to the Regional Director in Case No 11-RC-1611 On June 11, 1962 , the Supplemental Decision and Direction was amended to the effect that the Trial Examiner's recommendations in Case No. 11-RC-1611 should be directed to the Board Although the notice of hearing was not similarly amended, the General Counsel , early in the hearing, moved that the Intermediate Report contain recom- mendations as to the representation case, and the other parties indicated they had no objections ; the motion is hereby granted 2 The Supplemental Decision and Direction had recited, as issues requiring a hearing for their determination , a number of incidents allegedly occurring at various times from January 9 through April 30, 1962. Since the petition leading to the election being ques- tioned was not filed until February 27, 1962, counsel for the General Counsel, acting on behalf of and at the request of the Regional Director , relayed his understanding that 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and cross-examine witnesses, to argue orally, and to submit briefs. Briefs have been filed by the General Counsel and by Textile Workers Union of America , AFL-CIO- CLC, which briefs have been fully considered. Upon the entire record in the case,3 including my evaluation of the credibility of the witnesses based upon the evidence and upon my observation of their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Duplan Corporation (Forsyth Division), herein called Respondent, is a corporation existing under and by virtue of the laws of the State of Delaware. En- gaged in the business of processing fiber, it has plants in North Carolina, Tennessee, and Pennsylvania, but only its plant at Winston-Salem, North Carolina, is involved herein. Respondent, during the 12 months preceding June 5, 1962, received goods at its Winston-Salem plant shipped from points and places outside the State of North Carolina, valued in excess of $50,000; and, during the same period, it shipped from its Winston-Salem plant to points and places outside the State of North Carolina, goods valued in excess of $510,000. I find that Respondent is an employer engaged in commerce within the meaning of the Act H. THE UNION Textile Workers Union of America, AFL-CIO-CLC, hereinafter called the Union , is a labor organization within the meaning of the Act. III. CHRONOLOGY OF EVENTS 4 1. The Union conducted an organizing campaign among employees of Respond- ent beginning in January 1962.5 2. On or about January 11, 1962,6 Frederick Freudig, superintendent of the hosiery throwing department,7 had a conversation with Alice Amos, a coning operator in the coning department.8 Amos testified that, raising the subject of the Union, Freudig told her that Hanes Hosiery (a substantial customer for Respondent's output of hosiery yarn ) ought to be organized before Respondent was organized, to which she replied that she had neither signed nor distributed any union cards and anyone who said otherwise was lying. Freudig testified that the only conversa- tion with Amos which he remembered was one in which she stopped him near her workplace and, remarking that everybody was accusing her of being an organizer, she wanted him to know that she was not; he (he further testified ) said nothing about Hanes-in fact, he refused to discuss the matter further because he was busy. matters occurring prior to that date could not be used , except as "background" material, as a basis for setting aside the election ( Ideal Electric and Manufacturing Company, 134 NLRB 1275 ) I regard this as In the nature of a motion to amend the Supplemental Decision and Direction to delete all reference to incidents allegedly occurring prior to February 27, 1962 The Petitioner In 11-RC-1611 concurred in the General Counsel's action and the Employer voiced no objection The motion is hereby granted 3 On July 10, 1962, I Issued an order to show cause why the transcript of the hearing should not be corrected in specified respects No good cause to the contrary having been shown , the corrections indicated In the order to show cause , which is received in evidence as Trial Examiner's Exhibit No. 1, are hereby ordered made 4 My findings of what occurred-or what did not occur-as recited In this section will not be repeated elsewhere in this report References elsewhere in the report to items in this section will take the form of the abbreviation "Chron." followed by the item number or numbers being discussed. 5 I base this finding upon the affirmative , credited testimony of various of the General Counsel's witnesses, although a number of Respondent's witnesses testified that they were unaware of the campaign until, at the earliest , February In so finding , I do not neces- sarily find that all Respondent's supervisors knew of the campaign in January . The first public distribution of union literature of which this record contains information occurred on February 13. B Unless the contrary is indicated, all dates mentioned hereinafter are for the year 1962 7 Respondent's answer admits, and I find , that Freudig is a supervisor within the mean- ing of the Act. 3In finding that the conversation occurred on or about January 11, I credit Amos. Freudig did not remember the date, but , as will be seen, he remembered enough of the conversation to identify it as the same conversation to which Amos was testifying. THE DUPLAN CORPORATION (FORSYTH DIVISION) 1031 I credit Amos' testimony and find the conversation as that to which she testified .9 3. On or about January 16, Clifford Carter, foreman on the second shift in the coning department,10 approached coning operator Kathleen Oakley at her work- place at approximately 4 p.m. He said he was sorry about the discharge of Brice, her husband," and he said that perhaps Brice would be better off since he would probably get a better job in time. When she asked who could get a better job with what had been noted on his "separation papers," 12 Carter agreed that "they really throwed the book at him." She then said she knew the real reason for her husband's discharge-"because he was for the Union," adding, "I am too." To this, Carter said, "Kathleen, I'll forget you ever said that, just don't say it to anyone else up here, it is bad enough one being out of work , much less two." 13 4. Next day-January 17-Kathleen Oakley asked Carter about the advisability of showing her husband's dismissal notice to Owen George, a first-shift super- visor who had earlier said, in effect, that he would not say anything bad about Oakley's husband.14 Carter advised Oakley not to take the paper to George. She questioned the advice; saying that "if they knew Brice was for the Union, they would know I was too," she asked, "What do they want to do, fire me too?" Carter's answer, as he walked off, was "Yep." 15 5. On January 22, allegedly, a conversation took place between Charles Swift, a fixer on the second shift, and Sherman Bowman, head foreman on that shift.ls Swift testified to the following: The conversation, which took place in the men's bathroom, was initiated by Swift's saying he heard Brice Oakley was fired because of the Union. Bowman denied this, saying that the discharge was for cause and had been long overdue. Then Swift asked Bowman what the latter knew about the Union, to which Bowman countered that Swift had better tell him-he knew more about it. Continuing, Bowman asked who "started" the Union; Swift did not tell him except to say that it was not a person Bowman thought it was. Then Swift asked whether the mill would close if the Union came in; in answer, Bowman said he did not think so, but that the plant would operate with those "good enough to stay . while the rest of them was out." He said further that Respondent would not sign a contract with any "kind of organization ,"-this was the "Company policy." Bowman flatly denied that any such conversation took place. Not recalling ever having "talked union" with Swift, he specifically denied ever talking to him about the person who started the union movement or about the Company's signing-or not signing-a contract with the Union. 9 My observation of Amos persuades me that she would not exaggerate or fabricate. Freudig, particularly on cross -examination as to a pretrial statement made to a Board agent , was evasive ; in disclaiming the correctness of the statement , he gave, in my opinion, a strained interpretation. 11 The answer admits, and I find, that Carter is a supervisor within the meaning of the Act. 11 Brice Oakley had been discharged on January 15 His discharge was not an issue at this hearing. 12 Among other things, Brice Oakley's dismissal notice had attributed the discharge to misconduct and tardiness 13 This finding is substantially based upon the credited testimony of Oakley , whose de- meanor convinced me of her truthfulness . Carter displayed an undue wariness which, on occasion, led to self-contradictions For example, he placed this conversation as occurring when Oakley received her husband's dismissal notice; he said the subject of union did not come up in any way, shape, or form ; yet he remembered that Oakley had said her husband was fired because of the Union ; and he did not hear anything about a union until "some time in February." His testimony as to this and other incidents was marked by numerous failures of recollection, necessitating refreshment thereof by counsel In my opinion, Carter's dilemma as a witness was occasioned by his obvious friendliness with- and frankness toward-his subordinates as contrasted with his responsibilities as a supervisor 14 George is not involved in any allegation of this complaint. is This finding accords with Oakley's testimony , except for her statement that Carter started the conversation, which, in context, I reject as implausible. Carter's version: On one occasion , date unspecified , Oakley asked him if Respondent was going to get rid of her, to which he replied , "No, indeed , as long as you keep your job up and do your work right, you will have a job here " 11 The answer admits, and I find, that Bowman was a supervisor within the meaning of the Act 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crediting Bowman's testimony, I find that the conversation related by Swift never took place.17 6. On or about January 23, McRae (Mack) Temple, foreman in the textile yarn department,18 spoke to Sue Bowers, line operator, about the defective yarn which was being produced during that period. As he rose to leave, he said, "If you hear or see anything going on, come and tell me. It'll never leave this office " 19 7. On or about January 24, according to Charles Swift, Mack Temple approached him in the superloft department as he readied for work. He said he would like to talk to Swift, and they walked to the office. There (Swift's testimony continues), Temple asked whether Swift had not always been treated well, and what Swift had "against the Company." When Swift said that, for one thing, the pay was too low, Temple, disclaiming a desire to make any threats, asked Swift if he was aware what would happen if a union came into the plant. Swift said he did not know, but he thought it would be a good thing. Temple then said that if a union came in, "they would lock the gates, and we would all be out of work." Temple denies that any such conversation took place, at this or any other time I credit his testimony and find that it did not.20 8. On January 26, the charge in Case No. 11-CA-1886 was filed. 9. On or about February 8, Kathleen Oakley and Clifford Carter had a conver- sation. The topic of conversation was slackness of work (Prior to January, the plant was working full time, and one department was working 6 days per week. At or about this time, the work had fallen off.21) Among other things, Carter told Oakley that Hanes would not order from Duplan if Duplan had a union. He said that Respondent had moved from up north because of unions and would close down if a union came in. Oakley's rejoinder was that the Company would have to prove to the Government that they did not have orders before they could shut down.22 10. On February 27 the petition in Case No. I1-RC-1611 was filed. 11. On March 13 a complaint was issued in Case No. 11-CA-1886. The com- plaint was accompanied by a notice of hearing set for April 30. 12. On March 16 the original charge in Case No. 11-CA-1922 was filed 13. On March 21 a hearing was held in Case No. 11-RC-1611 14. On April 6 the Regional Director for the Eleventh Region issued a Decision and Direction of Election in Case No. 11-RC-1611. 15. On or about April 16, William Ray Thomas, foreman of the third-shift spinning department,23 had a conversation with John Love, third-shift spinning operator. At approximately 2:30 a in., Thomas called Love into the office, alone. There, he asked, "John, what do you think about it?" To Love's query, "What- the Union?" Thomas said, "You know what I'm talking about. Well, I want to tell you right now, John. I'll say the Union wouldn't be no good in here, for the `old man' wouldn't accept it." He then asked what good Love saw in the Union. When Love, complaining that employees got only 71/2 hours' pay while the machine ran for 8 hours, suggested that "maybe we would get a voice in the company," Thomas said, "Well, I'll tell you right now, if the Union comes in here, and you walk out on strike, you'll be gone, you'll be out, everyone of you can be replaced 171 was not impressed by Swift, who paused unduly long before giving many of his answers. 19 The answer admits, and I find, that Temple is a supervisor within the meaning of the Act. 19 The above finding is based on the credited testimony of Sue Bowers. Temple does not relevantly dispute these facts although-as will be discussed later-his and her inter- pretations of the conversation substantially differ. 20 I have commented elsewhere on my opinion of Swift's reliability as a witness Temple impressed me favorably a The cut in the workweek is not an issue in this proceeding 21 This finding is based on the testimony of Oakley , as opposed to that of Carter, who testified that Oakley asked him bow he felt about the Union ; that he gave her his "per- sonal opinion" that the Company had not made a lot of money for the past several years and that "if anything goes wrong" (meaning "if a union struck . . or anything") and Hanes could not get their production and if Respondent lost enough customers, "we'd" be out of work ; and that he said nothing about shutting down or about Duplan 's moving from up north to get away from a union . I have earlier commented upon the relative reliability of Oakley and Carter as witnesses. 23 The answer admits, and I find , that Thomas is a supervisor wtthin the meaning of the Act THE DUPLAN CORPORATION (FORSYTH DIVISION) 1033 immediately if you do that, for there [are] plenty of people . . . hunting jobs." He went on, "John, you know what the law says, what it requires your wages to start at, don't you?" Love said, "Yes, $1.15." "Well," said Thomas, "If the Union comes in here, that's probably where your wages will stop, you won't be able to get an increase at all from the Union." 24 16. On or about the same day-April 16-Clifford Carter had a conversation with Cora Miller, coning operator on the second shift. He approached her with a reference to "this business which has come up." When she asked, "What business?" he said, "The Union." She said that she was for the Union "100 percent." He suggested she consider the things Respondent had done for the employees to which she observed, "Like what? Increasing and tripling our assignments?" He told her she must "remember the good things along with the bad," but she persisted in saying she was "for the Union." He then asked, "Can't you talk to some of the girls and convert them?" When she said she would not, he left her, saying, "On election day, I hope your vote is a big N-O1 no." 25 17. On April 18, the General Counsel, by the Regional Director, issued an amended consolidated complaint in Cases Nos. I1-CA-1886 and 11-CA-1922. The hearing on the complaint was now scheduled for May 28. 18. On or about April 30, Kathleen Oakley was stopped by Clifford Carter as she passed his desk. He commented that he heard she had "a little job planned for Thursday." After a short exchange, she admitted that she had planned to ask for Thursday off in order to act as an observer in the election set for that day. He said he could not let her off. She answered, "Well, I'll just have to take off then." To this, he said, "What are you trying to do, get both of us fired?" She denied any such intention, and he said, "Well, you know, that was the way it looked . . . I hate to see you get mixed up in this." When she asked what he meant, he asked how old she was; she said she was old enough to vote. He then asked why she did not quit if she did not like her work. She said she did like her work, which was the very reason she was trying to help bring the Union in. Again he said, "I hate to see you get mixed up in it." She then asked whether he meant that, if she were to look elsewhere for a job, he would tell them (prospective employers) that she was for the Union or had been in a union campaign at Duplan. He replied in the affirmative, and when she said this was "against the law," he said, in effect, that it was not. After a discussion of the "government's" backing of the Union, .the conversation veered to production. Carter said Respondent had been operating in the red and could not afford to give raises. Oakley expressed the opinion that Respondent was doing well and could not afford to shut down. Carter's comment was, "If the Union come in, that would help." 26 19. On May 2, at 2 p.m., Leota McKnight, coning operator on the first shift, asked her foreman, Willie Gabard,27 for time off on the following day, so that she could be an observer for the Union at the election. (Mary Spencer, McKnight's 24 The facts recited in this finding are based on the credited testimony of Love, whose demeanor as a witness persuaded me that he was telling the truth Thomas testified that a conversation took place but said it was initiated by Love's volunteering that lie was not involved in the "mess" or the Union ; that Love complained of his low pay, whereupon he (Thomas ) pointed out that Love was getting $1 55 or $1.60 contrasted with the $1 15 required by law ; that he did not say there would be replacements in the event of a strike (although , he testified, he understood that this was lawful) ; and that he did not use the term "old man." Thomas was a nervous witness , whose memory continually required jogging. 25 Thus, I have credited Miller as opposed to Carter, who testified that Miller raised the subject of the Union , saying she was 100 percent for it, and that he merely said , " Cora, you are a grown person, and you can vote however you want to, but I hope you vote for the company " I was favorably impressed by Miller as a witness . Counsel for Respond- ent, in oral argument , pointed to the implausibility of Carter ' s having urged a person who had asserted she was 100 percent for the Union to persuade others to work against the Union. My observation convinces me that, in his relations with his subordinates, such implausibility was not out of line with Carter's character ; moreover , for him to have acted as testified to by Miller is no less plausible than-as conceded by Carter-his having expressed the hope to this "100 percenter" that her vote would be against the Union 20 This finding is constructed from the credited testimony of Oakley . Carter, in his testimony , remembered her mentioning that she would probably be quitting in a few more months , due to pregnancy , and his saying , "I would hate to see you quit" , and lie specifically denied talking about blacklisting her As indicated, I credit her testimony 27 The answer admits, and I find, that Gabard is a supervisor within the meaning of the Act. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD floorlady, who was present, spoke up at this time, but the interrupted testimony as to her remark was not pursued by counsel; so I make no finding respecting it.28) Gabard said he could not excuse her since he had work for her. She said that her absence was necessary in view of the fact that she had volunteered to act as an observer. Gabard then said, "Leota, why have you turned against the company and us like this? You know we like you, and have been good to you, and you have a good job here, and we are glad to have you back." She repeated her insistence that she needed the time off, and he asked, "Well, how are you going to vote?" She said that would be a secret, and he said that "You could blackball the union if you wanted to, couldn't you?" Her reply: "I didn't say I would." He then said she could have the time off, but did say, "I just want to ask you, did they have a hard time getting anybody to be an observer for the Union?" McKnight said, "No, I volunteered," and this ended the conversation.29 20. On the same day, May 2, at 2:30 p.m., Alice Amos 30 asked Willie Gabard if anyone was going to be "scheduled off" on the following day. (At that time, coning operators were off 1 day each week.) He asked, "Why, do you want to be off?" Her answer was, "No, not if it's not my time. I heard there wasn't going to be anyone out tomorrow." Gabard verified this fact through the floorlady, upon which Amos said, "Well, if I'm not out tomorrow, I'll be out Friday [the following day]." Gabard then asked, "How are you going to vote tomorrow?" "I don't know, I have not made up my mind," she replied. Gabard then said, "If I let you off tomor- row, you won't come in and vote." Amos asked him if he was trying to "blackmail" her, she had heard, she said, that if she did not vote one way or the other, she would be "sorry out." Gabard then repeated his earlier question, "How are you going to vote?" and she reasserted that her mind was not made up. After a few (in this record) confusing remarks referring to one "Elsie," the conversation ended. As she started to walk off, Gabard asked her if she had attended the union meeting on the previous Sunday. Her answer: "Yes, I was there, and wasn't the only one that attended." 3i 21. On May 3, an election was held among Respondent's employees under the supervision of the Regional Director. The results: Eligible to vote-------------------------------------------------- 411 Void ballots----------------------------------------------------- 4 Votes cast for Union-------------------------------------------- 173 Votes cast against Union------------------------------------------ 190 Challenges ----------------------------------------------------- 20 22. On May 7, the Union filed objections to the election. 23. On or about May 24, at 7 p.m., Carter approached Kathleen Oakley at her work and asked her if she was going to "drop charges" against him or to forget about the hearing.32 She gave a negative answer, saying they were not her charges and saying she had nothing to hide. Carter then said, "Well, I thought what we talked about was confidential between you and me, that the Labor Board wouldn't find out about it . You'll probably be the only one testifying"; and, he continued, it would probably cause nothing but ill feeling between the two of them. Her retort: "If I lose a friend for telling the truth, I never had a friend to start with." The conversation veered to Oakley's husband's discharge. She commented that, if Brice got his job back, "probably there wouldn't be anything to it." When Carter said that was not up to him, she said he was in a position to talk to (Plant Manager) Taylor. At this point, Carter said he was scared. "Kathleen, I'm scared I'll 28 Neither Spencer's supervisory status nor any conduct on her part is at Issue here 29 My finding accords with McKnight's testimony. Gabard, who did not recall the con- versation, specifically denied ever asking McKnight how she was going to vote. Conceding that, in a conversation, he asked her why she did not like Respondent--he testified lie knew she was pro-Union-he said he received no answer I note that between the ques- tion by Respondent's counsel : "And [she says] that the subject of observers came up, the union observers for the election Do you remember anything about that?" and Gabard's answer- "No sir," there was an unduly long pause On such a subject, allegedly of such recent vintage-and he had had the advantage of hearing McKnight testify earlier-I would have thought that his answer, negative or affirmative, would have been quickly evoked Who also figures In Chron. 2 81 Thus, I credit Amos' testimony Gabard denied asking how Amos intended to vote and whether she had attended a union meeting From my observation, Amos is the more convincing witness 32 Which was now set for the 28th THE DUPLAN CORPORATION (FORSYTH DIVISION) 1035 lose my job." She expressed little sympathy , commenting that his family and hers might be in "the same boat." Oakley then said she had passed on his remarks about blacklisting her (see Chron. 18), upon which he denied that he had ever said that; she said he was lying. As the conversation ended, he said he was "going to be absent minded" ; her last words were, "Yes, just like Mr. Taylor asked you to." 33 24. One hour later, Carter approached Oakley again. He asked what was wrong, why she was not as happy as she had been earlier. When she said there was nothing wrong, he asked her if she did not want to discuss what they had been talking about earlier. She said that she did not. 25. At 10 p.m., on the same date, Carter brought Oakley her paycheck, with "Here, Kathleen , this is as much money as you can make anywhere . Why don't you forget about everything?" She, in turn, asked if he thought her the type of person who would put lies in a Government affidavit 34 26. On or about May 25, Carter asked Oakley if she was going to drop the charges. When she said she had no such intention, he suggested that she only had to call the Labor Board and tell them that she had backed out, that she thought it best not to appear.35 27. On May 25, the Union withdrew 19 of the 20 challenges of votes cast at the election, and the hearing on the consolidated complaint was reset from May 28 to June 13. 28. On a date unspecified, but between May 15 and 30, Carter approached Oakley at her work and asked if she had "heard anything." She said she had not but, if she had, she would not tell him. 29. On June 1, the ballots on which the 19 challenges had been withdrawn were counted. The revised tally of results: Eligible to vote-------------------------------------------------- 411 Void ballots----------------------------------------------------- 4 Votes cast for Union---------------------- ------------------------ 175 Votes cast against Union---- -------------------------------------- 207 Unopened challenges--------------------------------------------- 1 30. Meanwhile, the investigation of the objections filed on May 7 had been go- ing on. On June 5, the Regional Director issued the Supplemental Decision and Direction and the second amended consolidated complaint which are the subject of this hearing. IV. THE ALLEGED UNFAIR LABOR PRACTICES As alleged in the amended complaint, I find that Respondent interrogated em- ployees concerning their and other employees' union membership , activities, and desires, through its supervisor, William Ray Thomas, on or about April 16, 1962,36 and through its supervisor , Willie Gabard, on or about May 2, 1962.37 I do not 33 The findings as to this conversation accord with the testimony of Oakley, whom I credit. Carter testified that he jocularly asked her if she was appearing against Respond- ent; that he never mentioned that prior conversations between them had been "confiden- tial" ; that Oakley said, if her husband were reemployed , "We'll drop it [the case]"; and that he never mentioned that he would be "absent minded " or, in fact, that Taylor had ever told him to be absentminded ( I have not drawn, nor shall I draw , any inference as to any conduct by Taylor arising out of this remark. ) Respondent 's counsel has urged that a witness who offers to withdraw from participation in the case if her husband is reinstated is not worthy of belief . I disagree Assuming, without finding, that this inter- pretation of her remarks be the correct one, I believe it would be more a reflection on her willingness to testify rather than on her credibility . The issue is whether Carter said what she testified she said; on this issue I take into consideration , in addition to my observation of the witnesses , the plausibility of the conflicting versons, and, in context, I am convinced as found above. u Carter's ( rejected ) version: He brought her paycheck , a fairly large one, and said, "You old operators, you make extra good money . I don't see why you all wouldn't be satisfied " 31 Based on Oakley 's credited testimony . Carter did not remember any conversation with Oakley about her dropping charges or refusing to testify , except for an occasion on which she "was kidding about her birthday and said if I would go out with her and celebrate her birthday, she would drop the charges ',See Chron 15 37 See Chron 19 and 20. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find interrogation by McRae Temple,38 by Sherman Bowman,39 or by Frederick Freudig.40 As alleged in the amended complaint, I find that Respondent threatened em- ployees with a shutdown of the plant if the Union won an election, through its supervisor, Clifford Carter, on or about February 8, 1962,41 and on or about April 30, 1962.42 I find no such threats by Frederick Freudig 43 or by McRae Temple 44 As alleged in the amended complaint, I find that Respondent threatened employees with loss of employment if they engaged in union activities, through its supervisor, Clifford Carter, on or about January 16 45 and January 17, 1962.46 I find further- although the incident was not specifically alleged, the issue was generally covered by the complaint and was fully litigated at the hearing 47-that Respondent, through its supervisor, Clifford Carter, on or about April 30, 1962, threatened Kathleen Oakley with discharge if she acted as an observer at the coming election.48 I find no support for the allegations in the complaint that Respondent through its supervisor, Sherman Bowman, threatened employees by informing them that Re- spondent would not sign a contract with the Union if the Union should win an election,49 or that, through its supervisor, McRae Temple, Respondent requested employees to report on the union activities of other employees.50 As alleged in the amended complaint, I find that Respondent threatened an em- ployee that it would inform other prospective employers of an employee's union activities, through its supervisor, Clifford Carter, on or about April 30, 1962 .51 As alleged in the amended complaint, I find that Respondent requested em- ployees' assistance in influencing other employees to vote against the Union, through its supervisor, Clifford Carter, on or about April 16, 1962.52 As alleged in the amended complaint, I find that Respondent attempted to in- fluence employees not to testify against Respondent in the instant unfair labor prac- tice hearing, through its supervisor, Clifford Carter, on or about May 24 and 25, 1962.53 Since it was not alleged in the complaint, and since it was not generally covered thereby, I make no finding of unlawful threat of loss of pay if the Union should be successful in its organizing campaign, as made by Respondent through its supervisor, William Ray Thomas, on or about April 16, 196254 In the interrogations, threats of shutdown, threats of loss of employment, threat of blacklisting, request for an employee's antiunion assistance, and attempt to 38 See Chron. 7. 30 See Chron. 5 4° See Chron . 2 The credited testimony reveals no questioning by Freudig. 41 See Chron 9. 0 See Chron. 18. 43 See Chron . 2. I do not find a threat of shutdown in his suggestion that a customer be organized first 44 See Chron 7. 45 See Chron. 3. 4a See Chron. 4. 47Local 198, International Union of Operating Engineers , etc (Nassau and Suffolk Con- tractors' Association, Inc.), 123 NLRB 1393, footnote 8; Pacific Mills, 91 NLRB 60, 61 Cf. Newspapers and Mail Deliverers' Union of New York and Vicinity ( New York Times Company et al ), 101 NLRB 589; Porter-DeWitte Construction Co., 134 NLRB 963. 43 See Chron 18. "See Cbron 5 60 See Cbron 6. The credible testimony indicates, and I find, that at or about mid- January, Respondent was beset with production problems-yarn was being rejected by customers as defective ; either sabotage or wanton negligence was suspected , and efforts were being made to correct the situation ; all involved personnel were retrained, and a number of personnel changes were made ; and, among others, Sue Bowers (who was not suspected of performing defective work) was personally interviewed about the possible sources of trouble. I find that, in asking Bowers to report to him on "anything going on," Temple was referring to this production problem ; and that Bowers, although she may have believed he was referring to the organizational campaign, had no reasonable basis for her belief. 51 See Chron. 118. 51 See Chron. 16. 53 See Chron. 23-26. 51 See Chron 15. THE DUPLAN CORPORATION (FORSYTH DIVISION) 1037 influence an employee not to testify, as above found, I find that Respondent inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act. V. THE CONDUCT ALLEGEDLY AFFECTING ELECTION RESULTS The issues with respect to the objections to the election held on May 3, 1962, were set by the Regional Director's Supplemental Decision and Direction of June 5, as narrowed at the hearing to cover only conduct occurring between February 27 and May 3. The findings herein are confined to the issues thus raised. I find that Respondent interrogated employees concerning their and other employ- ees' union membership, activities, and desires, through its supervisor, William Ray Thomas, on or about April 16, 1962,55 and through its supervisor, Willie Gabard, on or about May 2, 1962.56 I find that Respondent threatened employees with a shutdown of the plant if the Union came in, through its supervisor, Clifford Carter, on or about April 30, 196257 I find that Respondent, through its supervisor, Clifford Carter, on April 30, 1962, threatened an employee with possible discharge if she acted as an observer at the coming election and threatened that, if she lost her job, other prospective employers would be notified of her union activities.58 Finally, I find that Respondent, through its supervisor, Clifford Carter, on April 16, 1962, requested employees' assistance in influencing other employees to vote against the Union.59 (In the absence of its being framed as an issue in the notice of hearing, I make no finding, in the representation case, with respect to the threat of loss of pay should the Union's organizing campaign be successful, made by Respondent, through its supervisor, William Ray Thomas, on or about April 16, 1962.60) By the above-found interrogations, threat of shutdown, threat of loss of employ- ment, threat of blacklisting, and request for an employee's antiunion assistance, I find that Respondent tended to inhibit the free choice of the employees in casting their ballots on May 3, 1962. Conceding that the law is otherwise with respect to charged unfair labor practices, counsel for Respondent strongly urges that conduct, to be valid grounds for setting aside an election, must actually affect the voting of employees-i.e., must result in a switch of votes attributable to the conduct.81 He considers this a case of first impression-he has submitted no precedents-but he points to the lack of ambiguity in the words "conduct affecting the results of the election," as found in the Board's Rules and Regulations.62 [Emphasis supplied.] I reject the contention. It is clearly established, by cases cited by the General Counsel 63 and by others,64 that the actual effect, or lack of effect, of acts of inter- ference with an election is immaterial. VI. THE EFFECT UPON COMMERCE OF RESPONDENT'S UNFAIR LABOR PRACTICES AND CONDUCT AFFECTING ELECTION The activities of Respondent as set forth in sections IV and V, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States 15 See Chron 15. 56 See Chron. 19 and 20 61 See Cbron 1B. "See Cbron 18. 11 See Chron. 16. "See Chron 15 81 In pursuance of this contention, he sought to ascertain from each employee-witness whether the Respondent's conduct being testified to did in fact cause that employee to vote other than was his original intention. Objections to this line of questioning were sustained. 11 Section 102.69. e3 Lane Drug Stores, Incorporated, 88 NLRB 584, footnote 6; American Tool Works of Hartford, Incorporated, 102 NLRB 1143, 1149; Allied Plywood Corp, 122 NLRB 959, 961, Threads, Incorporated, 124 NLRB 968, footnote 20 of Intermediate Report, p 981 e4 For example, N.L R.B v Brown-Dunkin Company, Inc., 287 F. 2d 17 (CA 10) Boss Manufacturing Company, 78 NLRB 538; Dixie Shirt Company, Inc., 79 NLRB 127; Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439; American Wholesalers, 116 NLRB 1492. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, 1 shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent has engaged in conduct affecting the results of an election, I shall recommend that the election be set aside and that a new election be conducted by the Regional Director at an appropriate time. Experience has demonstrated that in less than 25 percent of "re-run" elections (resulting from objectionable conduct either by employers or by unions) do the results differ from those of the original, set-aside elections.85 This could be due to any one of a number of factors, including but not limited to (1) the possibility that, in most cases, the results in the original election represented the actual desires of the majority irrespective of the objectionable conduct, or (2) the possibility that, in most cases, the harm done by the objectionable conduct has not been fully remedied by the mere setting aside of the original election. In my recommenda- tions, I shall seek to eliminate, to the extent possible, the second factor by making clear to eligible voters the basis for the holding of a new election.66 Upon the basis of the foregoing factual findings and conclusions and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 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 employees as to their union membership, activities, and desires, by threatening employees with a cessation of operations if the Union's organizing campaign should be successful, by threatening employees with loss of employment for engaging in union activities, by threatening employees with inform- ing other prospective employers of employees' union activities, by requesting em- ployees' assistance in influencing other employees to vote against the Union, and by attempting to influence employees not to testify in an unfair practice hearing, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a) (1) thereof. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. Except for the above, Respondent has not engaged in unfair labor practices as alleged in the complaint herein. 6 By interrogating employees as to their union membership, activities, and de- sires, by threatening employees with a cessation of operations if the Union's organiz- ing campaign should be successful, by threatening employees with loss of employ- ment for engaging in union activities, by threatening employees with informing other prospective employers of employees' union activities, and by requesting em- ployees' assistance in influencing other employees to vote against the Union, during the period from February 27 to May 3, 1962, Respondent rendered impossible a free expression of the choice of its employees on the latter date. 65 Results in rerun elections : Number elections set aside Number re- run elections with different results Percentage of changed results Fiscal year ending 6/30/60---------------------------- -- Fiscal year ending 6/30/61__--_ 11 months ending 5/31/62-------------------------------- 95 97 123 23 24 27 24 2 24 7 22 66 As an example of a Board attempt to clarify the issues for eligible voters, see Park- chester Machine Corporation, 72 NLRB 1410, footnote 3. THE DUPLAN CORPORATION (FORSYTH DIVISION) 1039 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , I recommend that The Duplan Corporation (Forsyth Division ), of Winston-Salem, North Carolina , its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Interrogating employees as to their membership in, activities on behalf of, or desires with respect to Textile Workers Union of America, AFL-CIO-CLC, or any other labor organization. (b) Threatening to close down the Winston-Salem plant if a labor organization should achieve majority representation. (c) Threatening discharges to discourage activities on behalf of a labor organization. (d) Threatening to inform other prospective employers of employees' union activities. (e) Requesting employees' assistance in influencing others to vote against a labor organization in a representation election. (f) Attempting to influence employees not to testify at a proceeding before the National Labor Relations Board. (g) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of their right to self-organization , to form labor organizations, to join or assist any labor organization , to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Post at its plant at Winston -Salem, North Carolina, the attached notice marked "Appendix A." 67 Copies of such notice, to be furnished by the Regional Director for the Eleventh Region , shall after being duly signed by an authorized representative of Respondent , be posted immediately upon receipt thereof, and be maintained for a period of 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 insure that such notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for the Eleventh Region, in writing, within 20 days from the date of receipt of this Intermediate Report , what steps Respondent has taken to comply therewith.68 It is further recommended that the second amended consolidated complaint in Cases Nos. 11-CA-1886 and 11-CA-1922 be dismissed in all respects other than the above. It is further recommended that the election held in Case No. 11-RC-1611 on May 3, 1962, be set aside, and that a new election be conducted at such time as the Regional Director deems that circumstances permit the employees' free choice of a bargaining representative; and, in connection with the holding of any such new election, that the Regional Director post , alongside each notice of said election, a signed copy of the attached notice marked "Appendix B." 611f this Recommended Order Is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order." "If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Eleventh Region, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT ask our employees about .their membership, activities, or in- terest in Textile Workers Union of America, AFL-CIO-CLC, or any other labor organization. WE WILL NOT threaten to close down our Winston-Salem plant if our em- ployees select a labor organization as their bargaining agent. WE WILL NOT threaten employees with discharge to discourage activities on behalf of a labor organization. WE WILL NOT threaten employees that we shall inform other prospective employers about their union activities. WE WILL NOT ask for employees' assistance in influencing others to vote against a labor organization in a representation election. WE WILL NOT seek to influence employees not to testify at hearings before the National Labor Relations Board. WE WILL NOT, in any like or related manner, interfere with , restrain, or coerce employees in the exercise of their right to organize; to form, join, or assist a labor organization ; to bargain collectively through a bargaining agent chosen by themselves ; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ; or to refrain from any such activities. THE DUPLAN CORPORATION (FORSYTH DIVISION), Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone Number, Park 4-8356, if they have any question concerning this notice or com- pliance with its provisions. APPENDIX B NOTICE TO ALL VOTERS The representation election conducted on May 3, 1962, was set aside because certain conduct of the employer, through its supervisors , rendered impossible a free expression of the choice of its employees on that date . The conduct included asking employees about their union membership , activities, and desires; threatening a shutdown if a union was voted in; threats of discharge for union activities; threats of ,informing other prospective employers of employees' union activities; and asking employees' assistance in influencing others to vote against a union. Now, as will be noted in the accompanying notice of election , a new election will be held. Eligible employees are assured of their right to cast their ballots as they see fit, free from coercive interference by any of the parties. ---------------------------- (Regional Director, 11th Region, National Labor Relations Board) Maxam Buffalo, Inc., d/b/a Maxam and Local 212, Retail Clerks International Association, AFL-CIO and Maxam Niagara, Inc., d/b/a Maxam and Local 212, Retail Clerks International Asso- ciation, AFL-CIO. Cases Nos. 3-CA-1809 and 3-CA-1809-2. November 19, 1962 DECISION AND ORDER On August 9, 1962, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- 139 NLRB No. 85.