Cherokee Sportswear, Inc.

CHEROKEE SPORTSWEAR, INC. Cherokee Sportswear, Inc. and Local 444, and International Ladies' Garment Workers' Union, AFL-CIO, Charging Party-Union, and William P. Hutcheson, Attorney, Employees, Intervenor- Petitioner. Cases 10-CA-6939 and 10-RD-342 August 27, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On March 26, 1969, Trial Examiner Frederick U. Reel issued a Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom, as set forth in the attached Trial Examiner's Decision. He further recommended that the election of April 7, 1967, be set aside. Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein: 1. The record shows, and we find, that on the Friday before the election Respondent, through its agent Larry Perla, approached employee Mildred Stakley and stated that, while he was not going to tell Stakley how to vote, he knew that she would vote for the Union. The record further shows, and we find, that on the day of, but prior to, the election, Perla approached employee Glenda Davis and stated that he knew how she and her mother were going to vote. Contrary to the Trial Examiner, we do not find that the above statements were made merely in a context to reassure the employees as to their future with the Respondent. Rather, we find that these remarks to employees Stakley and Davis conveyed the impression of surveillance and constituted unfair labor practices within the meaning of Section 8(a)(1) of the Act.' We find further that said remarks, occurring within the critical period prior to the election, constitute objectionable conduct and therefore provide additional grounds for setting aside the election. 233 2. We conclude, in agreement with the Trial Examiner, that Respondent's refusal to allow incumbent Union Representative MaCoy to visit the plant shortly before the election constituted an unfair labor practice within the meaning of Section 8(a)(1) of the Act. We view this act, coming at a time when antiunion employees were being allowed to circulate freely throughout the plant soliciting support, as motivated by Respondent's antiunion animus and not by any legitimate concern, and as comprising an additional example of Respondent's unlawful disparate treatment of union supporters. 3. The Trial Examiner expressly refused to recommend that the usual "Notice" be posted on the ground that in view of the long period which has elapsed since the occurrence of the unlawful acts, any posting of notices would serve only to stir up old animosities and would not further the statutory goal of industrial peace. However, we find merit in the General Counsel's exception to the Trial Examiner's failure to recommend a notice, for such a notice,even if long-delayed, has salutary prospective effects. Consequently, we shall order the usual posting of notices. 4. We shall remand the representation case to the Regional Director for the purpose of counting the ballots of employees Bert Mincey, Carl Lichlyter, Bill Lichlyter, Glenn Rodgers, John Newman, and Howell Pressley. If the Union receives, on the revised tally of ballots, a majority of the valid votes cast, then the Regional Director shall certify it as the representative of the employees in the appropriate unit. However, if the Union does not receive such a majority the Regional Director shall set the election aside, and we direct that, in that case, the Regional Director shall conduct a second election at such time as he deems appropriate but not later than 6 months from the date of this Decision, Order, and Direction of Second Election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Cherokee Sportswear, Inc., Madisonville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Permitting employees in violation of plant rules to circulate antiunion petitions among the employees in the plant on company time. (b) Promising employees benefits for having signed an antiunion petition. (c) Stimulating employees to withdraw their membership in, or support of, a labor organization. (d) Coercively interrogating employees, or commenting to employees, as to how they would vote or have voted in a Board election. 'Queen City Coach Company . 160 NLRB 216. 178 NLRB No. 40 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Refusing for unlawful reasons to let union representatives visit the plant. (f) In any like 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 which we find necessary to effectuate the policies of the Act. (a) Post at its plant at Madisonville, Tennessee, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms to be provided by the Regional Director for Region 10, shall, after being duly signed by the Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith IT IS FURTHER ORDERED that Case 10-RD-342 be, and it hereby is, remanded to the Regional Director for Region 10, and said Regional Director shall, within 10 days from the date of this Order, open and count the ballots of Bert Mincey, Carl Lichlyter, Bill Lichlyter, Glenn Rodgers, John Newman, and Howell Pressley. Thereafter, the Regional Director shall prepare and cause to be served upon the parties a revised tally of ballots. If the Union receives a majority of valid votes cast, the Regional Director shall certify it as the representative of the employees in the appropriate unit. If the Union does not receive a majority of the valid votes, the Regional Director shall set the election aside and proceed to hold a second election as provided above in paragraph 4 of our Decision. [Direction of Second Election' omitted from publication.] 'In the event the Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 10 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. WE WILL NOT permit employees in violation of plant rules to circulate antiunion petitions among the employees in the plant on company time. WE WILL NOT promise employees benefits for having signed an antiunion petition. WE WILL NOT stimulate employees to withdraw their membership in, or support of, a labor organization. WE WILL NOT interrogate employees, or comment to employees, as how they would vote or voted in a Board election WE WILL NOT refuse for unlawful reasons to let union representatives visit the plant WE WILL NOT in any like manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. Dated CHEROKEE SPORTSWEAR, INC. (Employer) By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 730 Peachtree Street, NE, Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDRICK U. REEL, Trial Examiner' These cases, consolidated by the Acting Regional Director,' and heard at Madisonville, Tennessee, on February 4, 5 and 6, 1969,2 present questions arising out of the efforts of a group of employees to unseat their certified bargaining representative. At issue in both the complaint and representation cases is whether the Employer rendered such assistance to the antiunion group as to infringe the statutory prohibition against interference, restraint, and coercion, and to prevent the holding of a fair election. The caption of the proceeding reflects the consolidation and the granting at the hearing of Mr Hutcheson's motion to intervene in the CA case 'The complaint case arose pursuant to a charge filed April 28, 1967, and a complaint issued December 9, 1968 The representation proceeding originated with a decertification petition filed February 28, 1967, followed by a stipulation entered into on March 24 , 1967, for a consent election which was held on April 7, 1967 The Union on April 14, 1967, filed objections to conduct affecting the election , and the Regional Director issued his report on April 22, 1968, recommending that the objections be overruled The Union thereupon filed exceptions to his report The National Labor Relations Board on December 27, 1968, issued its order directing hearing in the decertification proceeding, noting that the Union had raised "substantial and material issues which can best be resolved by a hearing " The unusual delay between the filing of the charge and the issuance of the complaint (nearly 20 months) is apparently traceable in substantial part to the fact that the Regional Director dismissed the charge on October 31, CHEROKEE SPORTSWEAR , INC. 235 Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Intervenor,' I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY, AND THE LABOR ORGANIZATION INVOLVED Respondent, herein called the Company, a Tennessee corporation engaged at Madisonville in the manufacture of wearing apparel, annually ships goods valued in excess of $50,000 to points outside the State, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act Intervenor (petitioner in the representation proceeding) is an attorney representing a group of antiunion employees, herein called the Committee There is no allegation that the Committee is a labor organization A contention to that effect, advanced by Charging Party at the end of the hearing, appears to have been abandoned by Charging Party's adoption of General Counsel's brief In any event I find no evidence that the Committee is a labor organization within the meaning of the Act. Cf. N L.R B v. Cleveland Trust Co , 214 F 2d 95, 100 (C A. 6), approving in this respect 102 NLRB 1497, 1501, fn 5 II. THE UNFAIR LABOR PRACTICES A Background and Chronology Late in 1965 the Union, despite company opposition, won a Board election and was certified as the bargaining representative of the Company's production and maintenance employees On May 2, 1966, the Company and the Union executed a collective-bargaining agreement which was due to expire May 2, 1967 Early in 1967' a number of employees commenced circulating an antiunion petition in the plant At some date not shown in the record these employees retained counsel, who on February 28 filed a decertification petition with the Board's Regional Office, and this culminated, as noted above, in an election on April 7. The instant litigation turns on whether the Company rendered such assistance to the antiunion movement as to constitute unlawful interference with employees in the exercise of their Section 7 rights and as to require setting aside the election. In the April 7 election the Union received 96 votes, while 95 votes were cast against the Union, and 6 ballots were challenged The Regional Director in the course of overruling objections to the election also overruled the six challenges, and the Union in obtaining Board review of his action abandoned four of its challenges. The eligibility of the voters who cast the remaining two challenged ballots is therefore also before me in this litigation, pursuant to the Board's order directing a hearing in the decertification proceeding. Immediately following the election the Union called a strike, which was attended by some violence and which shut down the plant. On April 17 the Union and the Company executed a strike settlement agreement in which they referred to the strike (allegedly caused by the Company's alleged unfair labor practices) and to the pending objections to the election, and agreed that the strike would end, the employees would be reinstated, the election would be set aside, and the Union and the Company would resume negotiations for a renewal of the contract due to expire May 2. The antiunion group and its counsel were not parties to this agreement. On May 1 the Union and the Company executed a new 3-year contract, to run from May 2, 1967, to May 2, 1970. Meanwhile, on April 25 counsel for the antiunion group filed a charge alleging that the Company violated Section 8(a)(1) and (2) of the Act by recognizing and negotiating with the Union at a time when its status as bargaining representative was under challenge in the decertification case. This charge still rests in the Board's Regional Office, apparently awaiting disposition of the instant proceeding. 1967, and the General Counsel, on appeal from that ruling , first sustained the dismissal on August 13, 1968, and then , after timely application for reconsideration, partially reversed his ruling on October 15 , 1968, and directed issuance of the complaint The time-consuming procedures , described above, most certainly do not redound to the credit of the administrative agency, but my attention has not been directed to any deviation from prescribed rules and regulations which would warrant my not reaching the merits of the controversy "The law's delay," complained of by writers as separated in time as Shakespeare and Dickens, is occasionally still with us, and this agency bears its share of the guilt On some occasions even the Federal circuit courts of appeals have allowed over a year to elapse between argument and decision I can only recommend that if any further steps are taken in this case, every effort should be made to expedite it 'Charging Party adopted the brief of General Counsel as its own, and Respondent filed no brief Intervenor asks that I "discredit " the statements in General Counsel's brief because they are inconsistent with the opinions "he" expressed in "his" "Report on Objections " Even assuming that counsel was the author of the Regional Director 's report, I would not for that reason "discredit" his brief to me The scheme of the statute requires General Counsel himself, to say nothing of his subordinates , occasionally to take inconsistent positions For example in this very case, if the Board should dismiss and the Charging Party seek review, General Counsel and his subordinates would argue in support of the Board order of dismissal, and would urge that General Counsel was either wrong as a matter of law, or failed to carry his burden of proof, in his presentation to me Certainly the reviewing court would not "discredit " such arguments because they are contrary to arguments advanced by General Counsel at an earlier stage of the proceeding B. Company Assistance to the Antiunion Group As just noted, shortly after the election and while objections thereto were pending, the Company negotiated a strike settlement agreement and a new contract with the Union, recognizing the Union as the statutory bargaining representative of the employees. Both Company President Sayah and union negotiator MaCoy had been advised by counsel that company recognition of the Union at that time would be in violation of the Act unless the apparently pending "question concerning representation" were first disposed of, and this could apparently be brought about only if the decertification petition could be nullified as the product of company assistance. Indeed, MaCoy testified that Sayah admitted to such assistance, although Sayah and his local counsel, one Burnstein, deny having made such admissions. Both Sayah and Burnstein point out, moreover, that Sayah was immediately concerned with ending the strike, resuming operations, and avoiding further violence. Whether or not Sayah in so many words admitted unlawfully assisting the antiunion movement seems unnecessary to decide His admission 'Except where otherwise indicated , all events subsequently referred to herein occurred in the year 1967 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would at the most be supporting evidence, not conclusive evidence, of the ultimate fact to be proved. Furthermore, while his conduct in signing the agreements with knowledge that he could do so legally only if he had earlier violated the law furnishes support for MaCoy's testimony that Sayah admitted the violations, the question would still remain what weight to give the "confession" in the light of the somewhat coercive circumstances surrounding it. I see no need to grasp these nettles at this time, for as detailed below, I find unlawful assistance established by direct testimony concerning the events in question, and that suffices to dispose of the issues before me. The complaint alleges and the answer admits that the Company at all times material herein, maintained, inter alia, the following rules: I Do not leave your station or routine during working hours unless for personal reasons. 2. Do not carry on a conversation with your neighbors during working hours- a few words now and then are permissible. This rule was apparently normally observed and enforced, with exceptions for special collections; the record establishes that the supervisors stopped conversations between employees But in the weeks preceding the election the leading supporters of the antiunion movement roamed widely and at will through the plant, talking to employees about the antiunion petition. These patent infringements of the Company's rules were conducted in full view of the supervisors who made no effort to prevent them. Witness after witness testified to this practice, establishing its widespread character, its relation to the antiunion movement, and its timing, for it began a few weeks before the election and stopped immediately thereafter. Company President Sayah testified that he twice warned leaders of the antiunion group not to circulate their petition on working time. These warnings were allegedly given in February, but the testimony of numerous witnesses establishes that if given they were ignored, as the antiunion group continued its widespread and open flouting of the rule (and of the "warnings") throughout March Sayah also made a public announcement on February 22 prohibiting solicitation, this was, of course, likewise flouted. But some explanation as to why Sayah's public strictures were so ineffectual may also be found in Sayah's testimony, for he admitted telling his supervisors that they should tolerate "things going on that normally shouldn't." Intervenor, admitting that "the Employer, through its supervisors, tolerated anti-union activity on its premises, and in some cases on company time," argues that Sayah did not enforce the no-solicitation rule against "Union people." As noted above, there is evidence that the rule was normally enforced, except for collections for "good causes," and indeed Sayah publicly referred to it early in the preelection period. Moreover, as Sayah himself pointed out on the witness stand , the existing contract expressly prohibited union activity by any employee on company time. Intervenor also points out that the Union by contract had a bulletin board, a facility not available to antiunion employees. But this situation falls far short of justifying the widespread antiunion activity which the Company through its supervisors openly tolerated on company time. A far different question, and one on which I intimate no opinion, would have been presented had the Company merely permitted the antiunion faction to use a bulletin board I find that the action of the Company, through its supervisors, in knowingly permitting widespread antiunion activity on company time and property in violation of company rules constituted unlawful interference with employee rights guaranteed in Section 7 of the Act, and prevented the holding of a fair election As the foregoing finding necessitates the issuance of an appropriate order and the setting aside of the election, it is unnecessary to dwell at length on other violations alleged in the complaint and urged as additional grounds for setting the election aside. The evidence establishes that Company Supervisors Romita and Rosenberg, together with one Texter, a labor relations consultant retained by the Company, collaborated in the preparation of antiunion posters displayed at the plant on the morning of the election. The posters were plainly designed to assist the antiunion movement. One read "If the Union wins, you might lose," and the other read: "The Union representative was here yesterday and threatened to strike our plant; is this what you want?" There is no evidence as to the truth or falsity of the latter statement The first is probably within the orbit of "free speech" under Section 8(c) of the Act; it seems to be more of an "opinion" and less of a "threat" than the familiar "serious harm" language On the day before the election and on election day itself, the Company selected "guards" from among its regular employees to patrol the parking lot for the avowed purpose of preventing sabotage. Although the only damage theretofore inflicted had been to the car of a union supporter, the men selected as guards belonged to the antiunion faction, and used this opportunity to place antiunion literature in the cars The record does not, however, conclusively establish that they were selected for that purpose or that the supervisor of their guard duties was aware they were spreading propaganda. Clear violations of the Act, however, are established by the undenied testimony of employee Strickland that Production Manager Perla, unsolicited by her, obtained for her the Union's address for the purpose of submitting her resignation from the Union, and that Sewing Room Supervisor Pack, upon learning that Strickland had signed the antiunion petition, told her, "Well, if you signed it, I will see that you get regular work " General Counsel urges still other conduct as establishing violations of the Act. Uncontradicted testimony establishes that Perla asked one employee how she had voted and told several others, individually, that he knew how each would vote The direct interrogation infringed the employee's rights. The other comments complained of, taken in context, were not evidence of surveillance or other interference, but were designed to reassure the employees as to their future with the Company There is also some evidence that in a preelection speech to the employees Sayah referred to, but did not dispel, rumors of the plant's moving. Sayah's prepared text, which was strongly antiunion but stayed within permissible limits, did not deal with this matter. He testified that in addition he denied rumors that the plant might close. I credit his testimony in this regard. I do not believe that if he referred at all to rumors of moving, he left the matter "in the air," as the employees testified, and therefore make no adverse finding The Company admittedly refused to let Union Representative MaCoy visit the plant shortly before the election This appears to have been in breach of the collective-bargaining agreement, which expressly provided a right of access to the plant subject only to the condition CHEROKEE SPORTSWEAR , INC. 237 of noninterference with production The Company's ostensible grounds for the refusal were that it feared MaCoy's presence so shortly before the election might disturb the employees and that his purpose was "strictly electioneering," reasons which throw in high relief the antiunion solicitation freely permitted in the plant. As MaCoy's efforts to visit the plant were within the contractual rights won by the Union, and as the Section 7 right to be represented by a union extends to the right to have such representation made effective by carrying out visitation rights under a contract, I find the refusal to let MaCoy visit the plant violated Section 8(a)(1) Finally, I am directed to pass on the challenged ballots of Bert Mincey and Carl Lichlyter. This may be an academic exercise as I believe the election should be set aside I find that Lichlyter, a skilled mechanic, and Mincey, a marker in the cutting department, possessed none of the qualifications prescribed in Section 2(11) of the Act, and therefore were not supervisors within the meaning of the Act The evidence establishes that Lichlyter is a salaried employee and has a parking space next to that of President Sayah, but while this may be some evidence that the employees regarded him as an authoritative source when he expressed views on company policy, it falls far short of establishing supervisory status Cf. N L R B. v. Birmingham Publishing Co , 262 F.2d 2, 8 (C.A. 5). Mincey since the election has been given the title of assistant patternmaker, and the Company has notified the Union that he is now considered outside the bargaining unit. Apparently Mincey's job duties have not changed, and his present "exclusion" from the unit arose from the Company's desire to satisfy his personal desires to be known as a supervisor and not to be represented by the Union. The evidence in the record as to his duties discloses nothing of a supervisory character, as he marks patterns, attaches cutting orders to the marked papers, and sends them on their way. He has little or no contact with other personnel except for Supervisor Romita, the patternmaker I therefore would overrule the challenges to the ballots of Lichlyter and Mincey. CONCLUSION OF LAW The Company (a) by permitting widespread circulation of an antiunion petition in the plant during working hours, in violation of its otherwise normally enforced rules, (b) by promising benefits to an employee for signing the petition, (c) by encouraging an employee to resign from the Union, (d) by interrogating an employee as to how she voted in a Board election, and (e) by refusing to let a union representative exercise his contractual right to visit the plant engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend a cease-and-desist order embracing any interference with employee rights under Section 7. The Company appears to have been practicing "brinksmanship" (see Wausau Steel Corp v. N L.R B , 377 F.2d 369, 372 (C.A 7), and I think it unwise upon consideration of the unlawful interference shown on this record "that all of the untraveled roads to that end be left open and that only the worn one be closed " International Salt Co v. United States, 332 U.S. 392, 400. See also N.L R B. v. Bailey Co, 180 F.2d 278, 280 (C.A. 6), citing with approval N.L.R B. v. Sunbeam Electric Mfg. Co , 133 F 2d 856 (C.A. 7) I shall also recommend sustaining the objections to the election and setting it aside. I am inclined, however, not to recommend the posting of a notice. The events here are already several years behind us and should this matter be litigated further, the lapse of time between the events and the "remedy" could well be as much as 4 or 5 years Meanwhile, the Union, although the object of the unfair labor practices, has retained its status as bargaining representative and has executed a 3-year contract with the Company. While this circumstance alone would not preclude the posting of a notice, it is my sense of the situation that to post a notice here would be more likely to reopen old wounds than to give needed assurances. I am therefore not recommending such a posting If the Charging Party or the General Counsel has views differing from mine on this matter, they can so indicate in any exceptions or cross-exceptions they may file. Finally, it should be noted that although I find company assistance to the antiunion group, I do not find that the Company instigated the antiunion movement. I make no finding, and I imply none, as to whether the Company acted lawfully in making a new contract with the Union while the decertification petition was pending (for my holding that the election was tainted does not require dismissal of that petition), or as to what remedy might be appropriate if the execution of the contract was not proper. I also consider it outside my province to make any recommendation with respect to future action on the decertification petition. [Recommended Order omitted from publication.]