Vernon Manufacturing Co.

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vernon Manufacturing Company and Spencer Indus- tries and Southern Regional Joint Board , Amalga- mated Clothing Workers of America and Amalga- mated Clothing Workers of America, AFL-CIO Caledonia Manufacturing Company and Spencer In- dustries and Southern Regional Joint Board, Amal- gamated Clothing Workers of America, AFL-CIO and Amalgamated Clothing Workers of America, AFL-CIO. Cases 10-CA-9938, 10-CA-10251, 10- CA-10247 (Formerly 26-CA-4604), and 10-CA- 10268 (Formerly 26-CA-4785) July 28, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY , AND PENELLO On October 25, 1975, the National Labor Rela- tions Board issued its Decision and Order' in the above-entitled proceeding finding that Respondent Caledonia Manufacturing Company violated Section 8(a)(5) of the National Labor Relations Act, as amended, and that Respondent Vernon Manufactur- ing Company violated Section 8(a)(1) by engaging in various unlawful conduct. The Board also found that Respondent Vernon Manufacturing Company did not foster decertification authorizations in violation of Section 8(a)(1) and that it did not withdraw recog- nition from and refuse to bargain with the incumbent Union in violation of Section 8(a)(5). Thereafter, on May 5, 1975, the Board decided, sua sponte, to reopen and reconsider its decision and ad- vised all parties that they could submit supplemental briefs. The General Counsel, the Charging Parties, and Respondents have each filed such supplemental briefs. 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 entire record, in- cluding the supplemental briefs, and reaffirms its original findings 2 and Order for the reasons stated below.3 Findings not specifically discussed herein are '214 NLRB No. 23. 2 In the initial decision , we noted that the representation case involving the decertification petition at Vernon, in issue herein, was held in abeyance by the Regional Director for Region 10 and that we understood the petition was still pending. We have been advised that the decertification petition was in fact dismissed by the Regional Director on August 29, 1973. In view of our finding in the initial decision and herein that a real question concerning representation exists, the decertification petition is subject to reinstatement by the petitioner. 3 The fact that our reconsideration of the instant case follows notification reaffirmed for the reasons set forth in the initial deci- sion. 1. The Administrative Law Judge found, and we agreed, that Supervisor Hazel Smith's interrogation of, and threats to, Vernon employee Margie Lee Madden if that employee did not sign a decertifica- tion authorization violated Section 8(a)(1); but we found further that her single instance of interroga- tion and threat was not sufficient to taint the entire solicitation of decertification authorizations or to re- quire finding that the authorizations were coerced. The Administrative Law Judge found additionally that Respondent Vernon, through Smith, violated Section 8(a)(1) because she suffered and encouraged employees to sign decertification authorizations. We do not agree. Employee Bobby Rogers testified that he observed six or eight girls on Smith's assembly line reading decertification authorizations in the presence of Supervisor Smith; the authorizations were passed up the line to Smith by the employees; and she placed them in a notebook. Rogers worked on the line next to that of Smith. Although Smith denied collecting cards from any employees, the Ad- ministrative Law Judge found that where her testi- mony conflicts with that of other credited witnesses it is not credited. Yet, 15 other witnesses, who were employees on Smith's line, all unequivocally testified that they never saw Smith with any decertification papers, never saw her handing them out, and never saw any papers being passed up or down the line to her. Even Madden, the subject of the threat by Smith, who also was working on Smith's line at the time and who appeared as a witness on behalf of the General Counsel, did not testify that she saw any papers being passed up the line to Smith. Employees Dixie Gail Black and Billy Jean Harrington testified that they were handed decertification papers while they were on the line (there is no evidence that this occurred during working time) by a fellow employee on the line, but they also testified that the papers were returned to that employee and were not passed to Smith. In spite of the Administrative Law Judge's finding regarding Roger's testimony and Smith's de- nial of the incident, we find that the overwhelming weight of all the relevant evidence warrants a con- trary conclusion. The General Counsel has not proved a violation based on a preponderance of the evidence. Accordingly, we adhere to our original po- sition of not adopting the Administrative Law Judge's finding that Smith unlawfully suffered and of Respondents by the Regional Director for Region 10 that they had com- plied with the Board's Decision and Order and that the case was thereby closed might have raised procedural questions. However, since the reaffirm- ance of our initial Decision and Order causes no prejudice to the parties, we need not reach the issue of the propriety of reconsidering the instant case at this time 219 NLRB No. 125 VERNON MANUFACTURING COMPANY 623 encouraged employees to sign decertification author- izations. 2. Around December 7 or 8, 1972, Vernon em- ployee Marion Ann Rogers Shirey was instructed by management representatives of Respondent to re- move her decertification revocation forms from the plant. The decertification authorizations appeared at Respondent Vernon's plant on or about November 30, 1972. In the initial decision , we found that the prohibition against the solicitation of decertification revocations, while unlawful because of its disparate nature, had not been shown to have had an impact on the employees' opportunity to make a choice, such as might have occurred if there had been similar disparate action while simultaneous solicitations for or against the Union were in progress . We reaffirm that finding. The record is unclear as to whether employees were still signing decertification authorizations when Shirey was instructed to remove her decertification revocation papers from the plant . Although several witnesses testified that the decertification authoriza- tions were being signed around December 7 and 8, they stated that they did not know the exact date, but recalled that the signing occurred in late November or early December . On December 4, 1972, Respon- dent Vernon received a letter from Hal McClanahan stating that he had been retained by more than half of its employees to maintain a decertification against the Union and that he would forward the necessary papers to the Board's Regional Office along with proof of his authority by December 5. Thus, we are unable to determine whether the decertification and revocation solicitations were occurring simulta- neously. As the record is equivocal as to the dates of the various solicitations , it was incumbent on the General Counsel, as part of his burden of proof, to show that there was an overlap between the decertifi- cation -authorization solicitation and the effort to se- cure revocations . Not having done so , it has not been established, and there is no basis for assuming or finding, that there was an overlap . There is also no evidence that the employees knew that there would be an imminent effort by Shirey to revoke the decer- tification authorizations. Consequently, there has been no showing that the unlawful conduct of Re- spondent Vernon interfered with employee decisions regarding decertification. 3. Having found that 8(a)(1) violations did not taint the decertification campaign , we reaffirm our previous finding that the filing of the decertification petition with respect to the unit at Vernon raised a question concerning representation, and that Re- spondent Vernon's subsequent refusal to bargain with the Union and any unilateral changes affected by it did not run afoul of Section 8(a)(5). ORDER In view of the foregoing, and on the basis of the record as a whole, the National Labor Relations Board reaffirms its Decision and Order of October 25, 1974, in this proceeding. MEMBER JENKINS, dissenting: In our initial determination of these cases, I dis- cussed at some length my disagreement with my col- leagues' finding that Respondent Vernon was legally justified in withdrawing recognition from the Union. No purpose would be served in repeating those argu- ments here. It should suffice to say that I am no more impressed with the majority's rationale on reconsid- eration than I was originally . Accordingly, I adhere to the view previously expressed in my dissenting opinion in these cases.