J. P. Stevens & Co., Inc.

J. P. STEVENS & CO., INC. 513 J. P. Stevens & Co,, Inc. and Textile Workers Union of America, AFL-CIO. Cases 11-CA-5591 and 11-RC-3797 April 24, 1975 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLQ On January 29, 1975, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order.' about their union activities, and threatening them with repris- als if they selected the Union as their bargaining representa- tive. In Case 11-RC-3797, an election was conducted 'on November 20 and 21, 1973, pursuant to a Decision and Di- rection of Election issued by the Regional Director of Region 11 on October 26, 1973, which resulted in 119 votes for the Petitioner, Textile Workers Union of America, AFL-CIO, and 176 votes against the Petitioner. Thereafter, on Novem- ber 30, 1973, the Petitioner filed timely objections to the election. On September 4, 1974, the Regional Director issued a Supplemental Decision and Direction, in which he directed that a hearing be held to resolve issues raised by two of Petitioner's objections. On November 8, 1974, the Board, pursuant to Petitioner's request for review, ruled that the issues raised by an objection that had been overruled by the Regional Director should also go to hearing. Accordingly, this issue was added to those to be resolved by the Regional Director's Order Consolidating Cases, Complaint and Notice of Hearing issued September 9, 1974. A hearing was held before me in Rockingham, North Carolina, on November 26, 1974. Upon the entire record in the case, including my observa- tion of the witnesses, and upon consideration of the briefs, I make the following: FINDINGS OF FACT ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, J. P. Stevens & Co., Inc., Aberdeen, North Carolina, its officers, agents, successors, and as- signs, shall take the action set forth in the said recom- mended Order. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Textile Workers Union of America, AFL-CIO, and that said labor organiza- tion is not the exclusive representative of all the em- ployees, in the unit herein involved , within the meaning of Section 9(a) of the National Labor Relations Act, as amended. I We do not, however,' adopt the recommendation that Case I1-RC-3797 be remanded to the Regional Director for Region 11 DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: Case 11-CA-5591 is before me pursuant to charges filed January 14, 1974, and amended March 6, 1974, and a complaint issued September 9, 1974, alleging that Respondent violated Section 8(a)(1) of the Act by interrogating its employees I THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a New York Corporation, is engaged in textile manufacturing at various locations in North Carolina, in- cluding the Aberdeen plant involved herein. During the past year, the Respondent reviewed goods and materials from and shipped products to points outside the State of North Carolina valued in excess of $50,000. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Textile Work- ers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II THE UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(1) by interrogating its employees about their union ac- tivities and threatening them with reprisals if they selected the Union as their bargaining repesentative. Each of the a11e- gations involves one supervisor and one employee. And each of the alleged violations is also claimed as a basis for setting aside the election. Employee Shelly Kiser testified that Supervisor George Van Hoy, after informing him about a raise the Company was giving, told him that he "heard that I had signed a blue card for the Union," and asked if Kiser realized "what the union could do" to him. Van Hoy, according to Kiser, also told him that "if the union was to go on strike, they could put someone else in my place," and if the employees went out on a picket line, they could "shut the plant down." Van Hoy denied that he in any way questioned Kiser about his union activities. He testified that Kiser told him he had heard that if a plant called a strike, and he picketed, he could 217 NLRB No. 90 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lose his job. Van Hoy referred Kiser to a letter the Company had written on a previous date on this subject. The General Counsel and the Petitioner point to asserted discrepancies between Van Hoy's testimony on the stand, and his statement given to a Board agent 9 months earlier, and argue that these discrepancies furnish ample basis for discred- iting him. I 'do not, however, regard the discrepancies as significant.' Furthermore, Kiser's recollection of pertinent events, particularly of when they occurred, was so obviously poor, that I am constrained to credit Van Hoy's testimony over Kiser's. Accordingly, I find no violation of Section 8(a)(1) with respect to this allegation. Employee Delmar Sheffield testified that Supervisor Jen- nings-Kirk asked him about a month and a half before the election how he Was -going-to vote. When Sheffield told Kirk he did not know yet, Kirk said "What would the people do that voted for the Union - if the. plant closed down?" Kirk denied Sheffield's version of their conversation, testifying that Sheffield asked to talk to him , and told him "I want you to know that I am not having anything to do with any blue cards." With Kirk replying "Well , you know that is your free will, Tim." Sheffield impressed me as a credible witness; Kirk did not. Kirk at first denied knowing what a "blue card" was, but subsequently was forced to admit that he did know that a blue card was a union card . His own version of the conver- sation demonstrates that he knew at the time what a blue card was, for his asserted reply to Sheffield would make no sense if he had not. As Sheffield's version of the conversation, which I credit, contains a clear violation of Section 8(a)(1) of the Act, con- sisting of both interrogation and a threat , 'I find that Re- spondent violated the Act -in' this respect. III THE OBJECTIONS The election results, as noted above, show that, the Peti- tioner received 119 votes, with 176 votes against it. In the light of the substantial margin of the Union's loss, I do not regard the unfair labor practice I have found, consisting of a single interrogation and a single threat by- one supervisor to one employee, as a sufficient basis for setting aside the elec- tion, and shall recommend, that this objection be overruled. As I have concluded that Respondent did not violate Section 8(a)(1) with respect to the other allegation of the complaint, I shall also, of course, recommend that this objection be overruled. The remaining objection, which was not alleged as an un- fair labor practice, was stated by Petitioner as follows: The principal "discrepancy" adverted to is that Van Hoy,,m his affidavit, placed the conversation with Kiser about what would happen in the event of a strike as being in the same conversation in which Van Hoy told Kiser about the wage increase, a conversation mitiated by Van Hoy, while in his testimony Van Hoy stated that Kiser initiated the conversation about what might happen if the Union went out on strike As both the affidavit and Van Hoy's testimony have Kiser initiating that portion of the conversation deal- ing with a possible strike, it is of no consequence that the entire sequence began with Van Hoy approaching Kiser on another matter Indeed, even the affidavit at first seems to place the portion about the strike as a separate conversation, with Van Hoy later stating that "I believe that the conversa- tion I mentioned above with Kiser occurred when I was telling him about the- wage increase " - The Company violated the-United States Court of Ap- peals for the Second Circuit `Contempt Adjudication, Item No. 10 and Item No. 11. - a. Item No. 10: "If within the next two years, the Board schedules an election in which the Union participates at any of the five plants, then, upon request by the Union, the Company shall afford it reasonable access to each of the Company's said plants and appropriate facilities to deliver a 30-minute speech to employees on working time, the date thereof to be within 10 working days before but not within 48 hours prior to any such election." - The Company did not make available - the employees after being notified by the Union that they wanted to talk to all the eligible voters that were working: - b. Item No. 11: ". . . (in part) The Company shall make available to the Union and its representatives on each such occasion at a mutually agreeable time, similar facilities so that the Union may present its view to employees assembled on Company time for a similar period." The Company failed to-assemble-the employees in order for the Union to present their view. The Company also limited the Union to one representative entering the plant to deliver the speech even though they had all of their supervisors present during their meetings with the employees. As noted above, the Regional Director initially dismissed this objection on the ground that "whether or not the Em- ployer is in contempt of the Court's decree as alleged'by the Petitioner is beyond the scope of this proceeding and the undersigned makes no finding in this respect. As it goes to objectionable -conduct, the undersigned has carefully re- viewed the evidence adduced and viewing it in the light most favorable to the Petitioner concludes that it does not raise material and substantial issues warranting the setting aside of the election." But the Board, on review, remanded the case for the purpose of including this objection in the hearing to be held. I assume that the Board's remand carries with it the implication thatthe election should be set aside if the facts bear out Petitioner's contentions. Before fully resolving the legal question, I will discuss the evidence'and make the neces- sary factual findings. The Employer granted the Union access to the plant on November 16, 1973, pursuant to the Union's request that it be permitted to address the employees. It is undisputed that the Employer limited the Union's access to the one represen- tative who was to make the speech, and turned three other union representatives away. The Employer determined to address the employees on November 19, and the Union re- quested that it be given equal time and facilities to respond. Although the Employer at first claimed that it was not re- quired to do so, it agreed to permit the Union to come in (again with only a single representative) following a ruling by General Counsel Peter Nash that he so construed-the Second Circuit's decree. Petitioner adduced testimony from five employees, -all of them on the Company's second shift, to the general effect that J. P. STEVENS & CO., INC. 515 their supervisors told them to shut down their machines, but not that there was going to be a union speech , on the occasion of the two union speeches, on November 16 and 19, but that these same supervisors, on the occasion of the Company speech on November 19, told them the purpose of the shut- down was for the company speech. Employee Kiser testified as to what Van Hoy said; employee Sheffield testified as to what Kirk said; and the other three employees, Stanback, Mitchell, and Sineath, testified as to what their supervisor, Harvey Williams, said. The Employer adduced testimony from three employees, Spivey, Carpenter, and John Carter, Jr., to the general effect that their supervisors, Van Hoy in the case of Spivey and Carpenter and Williams in the case of Carter, told them when shutting down the machines on each of the three occasions the purpose of the shutdown. In addi- tion, Van Hoy, Kirk, and Williams all testified to the same effect. Sheffield, Mitchell, and Stanback testified that they did not see any notice on the Company's bulletin boards concerning the November 16 union speeches. Company Executive Vice President Marvin Crow, Plant Superintendent Ralph Harris, and Personnel Director Bobby Morton, however, testified credibly to the posting of the notices in question, and that they remained posted, and Petitioner's witnesses Kiser and Sineath both testified that they did see the notice on the bulletin board.' Marvin Crow testified that at each of the three speeches (one at each shift) he made on November ' 19 he told the employees present that it had been ruled that the Union would be entitled to come in and make another speech, which would be in the latter part of each shift, adding, "We do not feel that it is right in that we are speaking to you one time, and they are speaking with you twice. However, this is what has been ruled, and we are so abiding, and so a representative of the union will be back in at the end of this shift to talk with you." Although some of Petitioner's witnesses were vague with respect to what Crow said about a subsequent union speech, on November 19, most seemed to confirm the essen- tials, as Crow testified. The discrepancy remaining to be resolved, therefore, is what was said to the employees prior to the two union speeches. Based on all the testimony, and the inherent probabilities of the situation, I am constrained to conclude that the supervisors in question did indicate the purpose of 2 The notice read as follows- We have received notification from the Union that it wishes to send a representative of the Union into this plant today, to make a talk to each shift regarding the election which is to be held here next week. We are legally required to permit this We will therefore make ar- rangement in the Yarn Storage area for the Union representative to come there and make his talk today:-at 7 30 A.M. on the 3rd shift-at 3.30 P M. on the lit shift-and at 11 30 P.M. on the 2nd shift At those periods, work will be shut down in the plant, and you will be free to attend the speech by the Union representative. There, will be no loss of pay during the time the jobs are shut down. Similarly, if next week any speech is made by the Company prior to the election, work will be shut down without loss of pay, and everybody will be then likewise free to attend such speech by Management In each such case, attendance would be invited but not required. All who attend either of such speeches would, however, be expected to conduct themselves in an orderly manner at all times. each of the three shutdowns on the second shift as they testified. To use Harvey Williams' testimony as the example, he testified that on November 16 he told the employees that there would be a union meeting in the yarn storage area at 11:30, that the machines should be shut down at 11:25, and that if they did not attend the speech, they should go to the canteen, rather than roam about the plant. He testified that with respect to the company and union speeches of November 19, he told the employees approximately the same thing as he had on November 16, even putting the instructions- in the form of "the same thing applied to that meeting" as for the previous meetings. John Carter, Jr., fully confirmed Wil- liams' testimony. The three employees who testified that Williams told them to "shut down" without telling them the purpose, prior to each of the union speeches, testified that on the occasion of the company speech Williams told them the purpose, and told them they "had the same right as ... with the previous meeting," they "could either go or not go." Not only does this confirm Williams' testimony, the very way it was said strongly suggests that Williams must have told them the "ground rules" at the previous occasion, the first union speech. Had Williams said "shut down your machines" and nothing more prior to the November 16 meeting, there would be no such ground rules to which he could refer. It is also highly unlikely that a supervisor, indeed, all the supervisors on the shift, would shut down machines without telling em- ployees the purpose of the shutdown, or being asked the purpose. All three witnesses who testified that Williams did not tell the purpose of the shutdowns for the two union speeches during the second shift, of course, did not need to ask the purpose, for they were on the Union's in-plant organ- izing committee and knew the Union was to make a speech on each occasion. Perhaps because they already knew the purpose of the shutdown, they did not pay particular atten- tion to Williams' explanation of the purpose. Finally, in view of the convincing evidence that the notice of the Union's November 16 speeches was posted on the bulletin board, and the virtually uncontradicted evidence that Crow told the employees on each shift that he addressed on November 19 that the Union was to make a speech later in that shift, it is likely that all employees would have known the purpose of the shutdowns even without their supervisor ex- pressly telling them so. I deem it significant that no employee testified that he did not know the purpose of shutting down the machinery at either time. It is also of some significance that no employee on any other shift was called to testify. I must presume from that, and the lack of any contention by Petitioner that there was anything amiss in the Company's handling of the situation with respect to the Union's speeches on the other shifts, that everything was handled there in accordance with the instructions given the supervisors, as testified to by Marvin Crow. As I indicated at the outset of this discussion, I assume that the Board, by reversing the Regional Director's determina- tion that any possible violation of the Second Circuit's decree was not a ground upon which the election could be set aside, was ruling that a failure to comply with the decree by the Company would be a sufficient basis for setting the election 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aside.3 If, for ample, the Company had refused to permit the Union to make any speeches at all, there is no question but that the election should on that account alone be set aside. Petitioner argues that even though it was permitted to make the November 16 speech, and to reply to the Company's November 19 speech, the Company did not "assemble" the employees, i.e., it did not require attendance at the union speeches, that it did not properly notify the employees of the union speeches, and that any notification it did give was grudgingly given, and far less than the notification of the company's speech. Finally, Petitioner claims that the failure to permit other union representatives than the speaker to attend the Union's meetings, when contrasted with the fact that the Company had their supervisors present during its speeches, constituted a violation of the court's ruling. I have already concluded that the notification to the em- ployees of the Union's speeches was adequate, and was sub- stantially the same as the notification of the Company's speeches. And, as employees were told that they could attend or not with respect to both the company and the union speeches, there was no disparity in that respect. Short of an explicit statement in the court's contempt adjudication that the Company must require attendance at the Union's speeches held pursuant to that adjudication, I cannot con- clude that the notifications were inadequate. Nor do I read the court's mandate as requiring the Com- pany to permit other union representatives than the speaker to attend the in-plant meetings. The fact that the Company's supervisors attended the Company's speeches does not affect that conclusion; they, of course, are already on the Com- pany's premises. I am not unmindful of this Employer's track record, of, as the Second Circuit put it, a "pattern of fla- grantly contemptuous conduct," (464 F.2d 1326, 1329). And viewed against that pattern, conduct that would normally not be sufficient to set aside an election would, and should, be assessed much more stringently than in an ordinary case. I do not find on this record, however, that the Company's conduct in connection with the speeches of November 16 and 19 constitutes a basis for setting aside the election. Although my conclusion as to this objection would be the same even if the election had been closer, I believe that the margin of the Union's loss reinforces my determination that whatever very minor deviations there may have been should not be a basis for setting aside this election. I note further that the election was conducted in November 1973, so there is no impediment, vis-a-vis the statutory prohibition against hold- ing two valid elections within 1 year, to the holding of another election at this point. For all the above reasons, I conclude that the objections to the election should be overruled. Upon the basis of the foregoing findings of fact and the entire record, I make the following: gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 2. Respondent has not violated the Act in any other re- spect, nor has it engaged in any conduct warranting the set- ting aside of the election conducted November 21, 1973. THE REMEDY Although normally the single violation found herein might be said to be de minimis, and insufficient to require any remedial order, in my view of the background of this Re- spondent adverted to above, I shall recommend that Re- spondent cease and desist from its unfair labor practices and take certain affirmative action designed to effectuate the poli- cies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 Respondent, J. P. Stevens & Co., Inc., Rockingham, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities and membership. (b) Threatening employees with plant closure because of their concerted activities. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise -of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Post at its Rockingham, North Carolina, plant copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Re- gion 11, shall be signed by an authorized representative of the Company and posted immediately upon receipt thereof and maintained for 60 consecutive days thereafter, in conspicuous places, including all locations where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that the notices are not altered, defaced or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. IT IS FURTHER ORDERED that the objections to the election in Case 11-RC-3797 be overruled, and the case remanded to the Regional Director for appropriate action. CONCLUSIONS OF LAW 1. Respondent, by interrogating and threatening an em- ployee with respect to union or concerted activities, has en- 3 Despite the fact that normally an employer is not required to give a union any right of access to the plant to make a speech, or to reply to a company speech. Petitioner is correct, in my view, that the standards for this election include the requirements set forth by the court of appeals, as well as all normal standards applicable to elections generally 4 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 5 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." J. P. STEVENS & CO., INC. 517 APPENDIX WE WILL NOT threaten employees with plant closure because of their concerted activities. NOTICE To EMPLOYEES POSTED BY ORDER OF THE WE WILL NOT in any like or related manner interfere NATIONAL LABOR RELATIONS BOARD with, restrain, or coerce our employees in the exercise of An Agency of the United States Government their rights under Section 7 of the Act. WE WILL NOT interrogate our employees about their union membership or activities. J. P. STEVENS & CO, INC