Jacksonville Industries, Inc.

JACKSONVILLE INDUSTRIES, INC 347 Jacksonville Industries, Inc. and Independent Workers Union, Inc. Cases 12-CA-5191 and 12-RC-3872 June 8, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO On January 21, 1972, Trial Examiner Lloyd Buchanan issued the attached Decision in this consolidated proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Jacksonville Industries, Inc., Jack- sonville, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the election held in Case 12-RC-3872 on July 29, 1971, be, and it hereby is, set aside, and that the case be remanded to the Regional Director for Region 12 for the purpose of conducting a new election in the appropriate unit at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election2 omitted from publication.] i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3) We have carefully examined the record and find no basis for reversing his findings Nor do we find ment in Respondent's contention that because the Trial Examiner generally discredited Respondent's witnesses and credited the General Counsel's witnesses, his credibility resolutions are erroneous or attended by bias or prejudice N LR B v. Pittsburgh Steamship Co, 337 U S 656 2 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 Co, 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 12 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 TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued July 12, 1971; charge filed May 17, 1971), as amended, alleges that the company has violated Section 8(a)(1) of the National Labor Relations Act, as amended, 73 Stat. 519, by threatening to discharge employees, to close the plant, to impose more onerous working condi- tions, and to make things more difficult for employees if they selected a labor organization to represent them; threatening employees with surveillance of their union activity and telling them that the Union would require dues payments for a year even if it did not represent them and that the Company would not negotiate for greater benefits; and further telling employees that the Company had moved to the South to avoid unionization and would not permit a labor organization in the plant, and that the Union would not be able to negotiate greater benefits for them. Admitting some, the answer, as amended, denies other allegations of unfair labor practices. Consolidated with the trial of the above issues was a hearing with respect to certain allegations of objections to election. The Regional Director in his September 10, 1971, Supplemental Decision on Objections and Order Consoli- dating Cases for Hearing referred for hearing, ruling, and issuance of a Trial Examiner's Decision three allegations of objection to conduct affecting results of election in Case 12-RC-3872, conducted on July 29. The first of these three allegations refers to May 21, between the filing of the petition and the election, and had already been alleged in Case 12-CA-5191. The other two allege objectionable conduct on July 26 and 28, after issuance of the complaint and immediately prior to the election. As noted by the Regional Director, the objections or allegations based on his postelection investigation are not limited to the objections filed by the Union. It was early agreed that the proof in support of the objections to election would be limited to the May 21 allegations in the complaint and election proceedings and the other two allegations in the Regional Director's Supplemental Deci- sion, the Union presenting proof with respect to the latter two allegations and adopting the General Counsel's proof as to the earlier. The case was tried before me at Jacksonville, Florida, on October 18 and 19, 1971. The General Counsel was heard in brief oral argument at the conclusion of the trial. Pursuant to permission granted to all parties, and the time to do so having been extended, briefs have been filed by the Union and the Company, the latter's thorough and worthy of a stronger position. Upon the entire record in the case and from my observation of the witnesses, I make the following: 197 NLRB No. 55 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Florida corporation, the nature and extent of its business in the manufacture of textile products, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO ELECTION At the opening of the trial, the Company admitted the complaint allegations that on or about May 12 Plant Manager Mora threatened employees that, if they selected a union as their collective-bargaining representative, she would discharge them for failing to make production quotas, the Company would close the plant, more onerous working conditions would be imposed, and she would make things difficult for them. I find and conclude that each of these threats violated Section 8(a)(1) of the Act. It is not claimed that in a speech 2 days later, noted below, the Company's "owner" disavowed Mora's remarks. Nor is there adequate basis for finding that they were "effectively neutralized." Continuing with Mora, we now consider the second election proceeding allegation or objection, with respect to statements which she allegedly made on July 26, 3 days before the election. Mora entered the lunch area and approached the place where Waltzer, president of the Company, was speaking with five employees. Mora's picture of the atmosphere and of what occurred as she walked in reflected that of employee Stalvey, who testified that all immediately stopped talking: In Mora's words, "they all shut up, they went, they didn't talk any more." I do not credit Waltzer's version as he attempted to minimize the situation by declaring that they were "just about finished and almost getting up." Mora testified that she did not remember saying that she would not have a union in the factory and then that she gave her personal opinion only. With full understanding of her reasons and even sympathy for her attitude based on her experiences in Cuba, I find that, if a mere "personal opinion" could be innocuous under the circumstances, her statement conveyed far more. A mild expression of personal opinion would not be in keeping with Mora's indicated feelings or her earlier threats as admitted and her dominant personality. I find that in response to a question she declared that she would fight as hard against any other union and that she would not have a union in the factory. I conclude that these remarks on July 21 constituted conduct which affected the results of the election, and recommend that this objection be sustained. Were there any doubt concerning the threatening nature of Mora's reply and the indicated futility in voting for the Union in the then 1 Although Mora is ably bilingual, it may be in order to explain to all concerned that "objectionable" is here used in the literal sense that what she imminent election, what she said on July 21 is of a piece with and to be considered in the context of her admitted threats on May 12. Waltzer's attempt to avoid or lessen the element of threat and objectionable' conduct by Mora reflects on his credibility as he otherwise sought, as we shall see, to describe his own remarks to employees as strictly limited and mere lawful expressions of opinion without any aspect of violation or interference with the conduct of the election. We come now to the allegation of interference by Waltzer on May 21, this allegation repeated in the objections. At times himself uncertain, Waltzer testified that he spoke on that day to one of three or four groups of approximately half a dozen employees. He admitted that he was several times interrupted by questions, but maintained that he "stuck to" a prepared typewritten speech which does not include the remarks alleged and that there was no discussion and no comments or questions by employees. Employee Nolan testified for the Company that there were some discussions; she did not recall questions. Passing over the fact that he did ask questions as called for in the prepared copy and elicited replies from employees, and bearing in mind that some witnesses recalled more than others, that some went beyond the allegations before us, and that it was not always clear whether some of the statements charged to Waltzer were read from the paper, the testimony reliably indicates and I find that Waltzer did not limit himself to the prepared speech, whether or not he read all of it: He joined in discussion, which of course was not included in the prepared speech. He said, among other things, that the Company had come to the South because it was too smart to have a union. Whether he said that the Company was too smart or that the people in the South are too smart, he was understood to be referring to the Company. He also told the group that the Company did not want and would not have the Union and that the employees would not obtain greater benefits in negotiations. I find and conclude that these statements violated Section 8(a)(1) of the Act and constituted objectionable conduct affecting the results of the election, the objection to be sustained. Whether other remarks, not alleged in the complaint or the objections but which Waltzer allegedly made, including some in his prepared statement (the General Counsel disclaimed violation in these), were violative or objectiona- ble and were in fact litigated need not be determined. Findings with respect to such remarks, if they were made, would not add to the conclusions, recommendations, or remedy. The third objection allegation is that on the day before the election Waltzer asked an employee how she was going to vote. Employee Elizabeth Johnson testified that Waltzer asked her whether she was going to vote for the Union and, when she replied that she didn't know, said that he wanted her to vote "No" and to ask her daughter, also a company employee, to do the same. Waltzer denied that he asked her how she was going to vote. Johnson further told us that she said is the subject of an election objection which has been here sustained JACKSONVILLE INDUSTRIES, INC. had been prompted to open the conversation by a feeling that she had been slighted: She asked Waltzer why he had not called and spoken with her as he had the other girls. Both Johnson and Waltzer testified that he had replied that he felt that he would be wasting his breath, the former adding that Waltzer said also that he was sure she was for the Union but despite that asked the allegedly objectiona- ble question. It is unlikely that, addressing an employee who had broached the subject and soliciting her assistance, Waltzer questioned her concerning her sympathies when, as she testified that he told her, he had not spoken to her as he had to other employees because he felt that he would be wasting his breath in talking to her. I recommend that the third objection allegation be dismissed. With respect to the allegations of violative remarks on May 14 by Cohen, identified as the Company's "owner," the issue is whether he confined himself to a previously prepared statement or whether he made other remarks attributed to him by three employees. It is not claimed that the statement from which he read, received in evidence, is violative. Cohen testified that he read the statement and said no more. Employees Norris and Kilchrist testified that Cohen said that he was reading so that he would not be misquoted and appeared to be reading throughout his talk. Employee Jacobs declared similarly in a pretrial affidavit that Cohen appeared to be sticking to the prepared speech. While Jacobs first testified that Cohen did not read all of what he said, and then attempted to reconcile that testimony with her affidavit by explaining that he read only in part and then spoke without reading from the paper, I find on the basis of her affidavit and the testimony of both Norris and Kilchrist that Cohen confined himself to the typewritten statement. I find and conclude that these allegations have not been sustained. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent, Jacksonville Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge employees, to close the plant, to impose more onerous working conditions, and to make things more difficult for them if they select a labor organization to represent them; and telling employees that the Company had moved to the South to avoid unioniza- tion and would not permit a labor organization in the plant and that the Union would not be able to negotiate greater benefits for them. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessarylto effectuate the policies of'the Act: (a) Post at its place of business in Jacksonville, Florida, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director 349 for Region 12, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.4 I further recommend that the allegations of objections to conduct affecting the results of the election be sustained and, severed pursuant to the Regional Director's Supple- mental Decision of September 10, 1971, Case 12-RC-3872 be transferred and continued before the Board. 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 4 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 12, in wntmg, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF TILE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discharge employees, to close the plant, to impose more onerous working conditions, or to make things more difficult for our employees if they select a labor organization to represent them. WE WILL NOT tell employees that we have moved to the South to avoid unionization and will not permit a labor organization in the plant, or that Independent Workers Union, Inc., will not be able to negotiate greater benefits for them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Independent Workers Union, Inc., or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. JACKSONVILLE INDUSTRIES, INC. (Employer) 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By from the date of posting and must not be altered, defaced, (Representative) (Title) or covered by any other material. Any questions concerning this notice or compliance with This is an official notice and must not be defaced by its provisions may be directed to the Board's Office, Room anyone. 706, Federal Office Building, 500 Zack Street, Tampa, This notice must remain posted for 60 consecutive days Florida 33602, Telephone 813-228-7711.