Wex-Tex of Headland

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 t 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. 4t, 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