Crystal Springs Shirt Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1196 (N.L.R.B. 1975)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shaw Industries, Division of Crystal Springs Shirt
Corp. and Mississippi Joint Board, Amalgamated
Clothing Workers of America , AFL-CIO. Cases
26-CA-5174,26-CA-5212, and 26-RC-4785
June 30, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND KENNEDY
On February 28, 1975, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charg-
ing Party filed exceptions and supporting briefs, and
the General Counsel filed cross-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
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Shaw Industries,
Division of Crystal Springs Shirt Corp, Shaw,
Mississippi, its officers, agents, successors, and
assigns , shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
IT IS FURTHER ORDERED that Case 26-RC-11785 be,
and it hereby is, remanded to the Regional Director
for Region 26 for the purpose of opening and
counting the challenged ballots of Annie Ruth Cail,
Jane Ella Reed, and Viola Vineyard, and thereafter
preparing and causing to be served on the parties a
revised tally of ballots. If the revised tally of ballots
shows that Petitioner, Mississippi Joint Board,
Amalgamated Clothing Workers of America, AFL-
CIO, has received a majority of the valid ballots cast
in the election, the Regional Director is ordered to
certify it as the collective-bargaining representative
of the employees in the appropriate unit.
IT IS I1URTHER ORDERED that if the revised tally of
ballots shows that a majority of the valid ballots cast
218 NLRB No. 181
in the election were not for the Petitioner the
Regional Director for Region 26 shall conduct a new
election at such time as he deems that the circum-
stances permit the free choice of a bargaining
representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
1 The Respondent and Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge 's resolu-
tions with respect to credibility, unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 In the absence of exceptions thereto , we adopt pro forma the
Administrative Law Judge's recommendation that the allegation that
Respondent violated Sec . 8(a)(l) of the Act by implementing the new base
rates be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that restrains or
coerces employees with respect to these rights.
More specifically:
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against employees for
joining or supporting Mississippi Joint Board,
Amalgamated Clothing Workers of America,
AFL-CIO, or any other union.
WE WILL NOT interrogate employees concern-
ing their union activities or the union activities of
other employees.
WE WILL NOT threaten employees that they will
lose their jobs or that we will close the plant if the
employees select a union to represent them.
WE WILL NOT withhold any benefits because
our employees have engaged in activities on
behalf of a union.
WE WILL NOT maintain any rule preventing our
employees from soliciting on behalf of any union
during their nonworking time.
SHAW INDUSTRIES 1197
WE WILL NOT maintain any rule which pre-
cludes our employees from distributing literature
on behalf of any union during nonworking time
in nonworking areas.
WE WILL offer full reinstatement to Annie Ruth
Cail and Jane Ella Reed to their former jobs or, if
those jobs no longer exist, to substantially
equivalent ones, with backpay plus 6-percent
interest.
WE WILL make employees whole for losses
sustained as a result of a delay in increasing base
rates, with 6-percent interest.
SHAW INDUSTRIES,
DIVISION OF CRYSTAL
SPRINGS SHIRT CORP.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: The
above consolidated proceeding was heard in Greenville,
Mississippi, on November 14, 15, and 16, 1974, upon a
charge filed in Case 26-CA-5174 on June 27, 1974; a
charge filed in Case 26-CA-5212 on July 22, 1974, and a
consolidated complaint issued on August 23, 1974, alleging
that Respondent independently violated Section 8(a)(1) of
the Act by coercively interrogating employees concerning
union activity, by threatening reprisals for union activity,
by maintaining an unlawfully broad no-solicitation, no-
distribution rule, and by withholding benefits and then
granting benefits to discourage union activity. The consoli-
dated complaint further alleged that Respondent violated
Section 8(a)(3) of the Act by discharging Jane Ella Reed,
Annie Ruth Cail, Emma Johnson, and Gloria Donaldson.
Respondent in a duly filed answer denied that any unfair
labor practices were committed.
The petition in Case 26-RC-4785 was filed on May 6,
1974. Thereafter, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was
conducted on July 3, 1974, among employees in the
agreed-upon collective-bargaining unit. At the conclusion
of the election, the tally of ballots showed that of
approximately 107 eligible voters, 96 ballots were cast, of
which 45 were for representation by the Petitioner, 46 were
against, and 5 ballots were challenged. The challenged
ballots were sufficient in number to affect the results of the
election. Petitioner, after the election, filed timely objec-
tions alleging misconduct by the Employer affecting the
results. Thereafter, the Regional Director for Region 26
conducted an investigation of the challenges and objec-
tions and, on August 23, 1974, issued and served on the
parties his report on objections and challenges and order
directing hearing. In his report, the Regional Director
recommended to the Board that the challenge to the ballot
of Viola Vineyard be overruled, but not opened until the
remaining challenges are resolved. He further found that
1 After close of the hearing the General Counsel filed a motion to correct
the official transcript, and, consistent with my recollection and the sense of
the challenges to the ballots of Essie Selmon, Jane Ella
Reed, Annie Ruth Cail, and Emma Johnson, together with
the Petitioner's objections, raised issues best , resolved
through record testimony, and further, that, as these issues,
except for the challenge to the ballot of Essie Selmon,
involved matters alleged as unfair labor practices in Case
26-CA-5174, he recommended consolidation of those
issues for determination in said unfair labor practice
proceeding. Thereafter, the Employer filed timely excep-
tions to the Regional Director's Report, urging that the
objections be overruled, and that the consolidated hearing
exclude all issues pertaining to the election. By order
directing hearing dated November 6, 1974, the Board
found no merit in the Employer's exceptions, and ordered
a consolidated hearing, as per the Regional Director's
recommendations.
Prior to conclusion of the hearing, all parties were
afforded the opportunity to present all available, competent
evidence, and to participate fully in the proceeding.
Subsequent thereto, the General Counsel, the Charging
Party-Petitioner, and the Respondent-Employer filed
posthearing briefs, which have been carefully considered.
Upon the entire record' in this consolidated proceeding
and from my observation of the witnesses while testifying, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Respondent-Employer is a corporation with a place
of business in Shaw, Mississippi, from which it is engaged
in the manufacture and distribution of shirts and blouses.
During the 12-month period preceding issuance of the
complaint, a representative period, Respondent-Employer
in the course of said operations purchased and received at
its Shaw, Mississippi, location, products valued in excess of
$50,000, shipped directly from points outside the State of
Mississippi, and during that same period Respondent-
Employer sold and shipped from its Shaw, Mississippi,
location, products valued in excess of $50,000 directly to
points located outside the State of Mississippi.
The consolidated complaint alleges, the answer admits,
and I fmd that Respondent is, and at all times material, has
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I fmd that
the Charging Party-Petitioner is a labor organization
within the meaning of Section 2(5) of the Act.
IH. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
As should be obvious from the foregoing, the issues in
this consolidated proceeding are not atypical of those
arising where, in an initial organization context, employers
are accused of coercing and intimidating employees to
the matters set forth therein , the transcript is hereby amended in certain
respects.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impair their freedom of choice and to restrain their activity
on behalf of a labor organization. Thus, the complaint and
the Union's objections to the election describe numerous
efforts to unlawfully thwart employee organization, includ-
ing acts of coercion by supervisors, restrictive rules
impairing union activity, coercive speeches by prominent
company officials, the manipulation of benefits to influ-
ence employee choice, and the discharge of four union
supporters. The issues presented are primarily factual and
turn upon the resolution of conflicting testimony.
Also involved are questions going to the results of the
first election, which remain in an inconclusive state due to
the existence of five unopened challenged ballots.2 Resolu-
tion of these challenges could very well shift the result
appearing on the initial tally of ballots. In addition to the
challenges, the Union's objections to the election, which
correspond with certain of the unfair labor practice
allegations, require resolution, for they will determine
whether a rerun election will be necessary, if the final result
of the first election fails to reflect that the Union has been
designated as the majority employee representative.
B. Background
Respondent acquired the production facility involved
here in January 1974. However, prior thereto, production
operations were conducted at that same location by
Respondent's predecessor for several years, and many of
Respondent's employees have an employment history at
the plant which predates Respondent's acquisition thereof.
The size of Respondent's work force appears to be of a
shifting nature, but normally is in the range of 100
employees.3 It does not appear that these employees, at
any time, before or since Respondent's acquisition of the
Shaw facility, were subject to union representation.
The organization drive began in early March 1974.4 At
that time Annie Ruth Cail, a former employee not working
because of pregnancy,5 was visited by one of the Union's
organizers, James McCormick. Cail at that time signed a
card, and agreed to contact other employees to enlist their
support of the Union. On March 6, five employees
attended a meeting at Cail's home for that purpose. The
employees in attendance included Ollie McWilliams, who
subsequently, in late April, was promoted to a supervisory
position. All employees, including McWilliams, at that
time signed union authorization cards.
McWilliams at that meeting obtained blank authoriza-
tion cards, in order that she too could assist in soliciting
additional support for the Union. In addition, that same
evening, McWilliams met with McCormick at her home.
Only one other employee, Jane Ella Reed, was present at
that meeting, and Reed at that time signed an authoriza-
tion card. Subsequently, Jane Ella Reed solicited signa-
tures to authorization cards and in late March or early'
April held an organizational meeting at her home.
2 As heretofore indicated the challenge to the ballot of Viola Vineyard is
not in dispute here. The Regional Director previously overruled the
challenge to Vineyard's ballot, but directed that it not be opened until after
resolution of the disputed challenges to the ballots of Essie Selmon, Annie
Ruth Cail, Emma Johnson, and Jane Ella Reed.
s There were approximately 107 eligible voters in the July 3, 1974,
election.
4 Unless otherwise indicated all dates refer to 1974.
On May 6, the Union filed its election petition. During
the critical preelection period the Respondent actively
campaigned against the Union. Prior to the election, which
was conducted on July 3, Jane Ella Reed and Annie Ruth
Cail were terminated on the same day, June 24. Two days
later, on June 26, Emma Johnson was discharged. On July
12, Gloria Donaldson, who on July 3 had acted as a union
observer at the election, was also discharged.
C. Interference, Restraint and Coercion
1. No-solicitation, no-distribution rule
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by maintaining the following rule: "No
soliciting or passing out of hand bills will be allowed at any
time on company property." This rule appears in a
document which includes a listing of some 22 plant rules,
and which, as a matter of routine, is shown to all
employees.
The rule as written is broad enough to restrict, and
would be understood as precluding anywhere on company
property, both union solicitation and the distribution of
union materials. Under settled authority such limitations
on union activity by employees "must be presumed to be
an unreasonable impediment to self-organization and
therefore discriminatory in the absence of evidence that
special circumstances make the rule necessary in order to
maintain production or discipline."6
Respondent, by way of defense, points to no evidence,
and, indeed, the record would hardly support an argument,
that so broad a rule could be justified by special
considerations related to the maintenance of production
and discipline. On the other hand, Respondent does argue
that, as the rule was not adopted for the purpose of
impairing legitimate union activity, and not enforced
against union activity, no illegality would inure. There is
no merit in this contention. The express terms of the rule
include all forms of solicitation and distribution, and there
is • no evidence whatever that union activity was excepted
from its ban or that employees were informed either of any
such exception or, that, in maintaining the rule, Respon-
dent had no intention of applying it to union activity. Joe
Tittle & Sons, Inc., 174 NLRB 517 (1969), relied upon by
Respondent, is distinguishable, for there, unlike the instant
case, the Board's conclusion that the rule had no intended
application to employees was predicated upon record facts.
Respondent's claim here is based solely upon argument
and there is nothing in the record having the slightest
indication that employees had any basis for believing that
Respondent would condone union solicitation or distribu-
tion conducted on the premises of the plant.
Here, as in Wagner Electric Corporation 216 NLRB No.
77 (1975), the Respondent has failed to demonstrate, by
factual proof, that employees bent on soliciting or
5 Shortly thereafter, on March 25, Cad returned to active employment
status.
6 See Peyton Packing Company, Inc., 49 NLRB 828, 843, 844 (1943). See
,Republic Aviation Corporation v. N L R B., 324 U.S. 793, 803-804, with
respect to restrictions upon the right to engage in union solicitation, and
Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962), for the standards
governing employee distribution of union literature.
SHAW INDUSTRIES 1199
distributing on behalf of the Union knew, or should have
known, that in doing so they would not be risking violation
of the published plant policy.
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act by maintaining a rule which precluded
employees from both engaging in union solicitation on
nonworking time, and union distribution on nonworking
time, in nonworking areas.?
2. Threats and interrogation
a. Preliminary statement
The General Counsel produced some nine witnesses who
testified in substantiation of allegations of coercive threats
and/or interrogation variously attributed to Respondent's
President, Paul Bernstein; head supervisor, Pauline
McClure; and supervisors, Eddie Crowe, Ola Fitts, and
Marice Peacock.8 Each of these alleged incidents occurred
prior to the election. Although at the outset of the hearing
Respondent denied that certain individuals were supervi-
sors or agents, prior to close of the hearing Respondent
amended its answer so as to eliminate all such issues.
b. By Eddie Crowe
Eddie Crowe, at times material, was a quality inspection
supervisor. In such capacity, she had regular contacts with
the various sewing operators who testified on behalf of the
complaint in this proceeding, since her duties included
spot-checking their work.
Annie Ruth Cail testified that in mid-June, Crowe, while
at Cail's machine, asked what Cail thought of the Union.
When Cail said she didn't know, Crowe asserted that Cail
should not vote for the Union because it couldn't get her a
job and could do nothing but cause a lot of trouble.
Johnnie Wesley testified that in June or July, but before
the election, she too was approached by Crowe, who asked
if Wesley knew anything about the Union. When Wesley
did not respond, Crowe repeated the question. Wesley
then, in apparent reference to speeches made by Bernstein
and/or production manager Richard Purnick, answered
that she had only heard one side, and had not heard the
Union's position. According to Wesley, Crowe then asked
if she knew the plant would close if the Union got in.
Wesley also testified that during said conversation, Crowe
asked her how she would vote, but that she declined to
answer.
Genetta Reed testified that, about 1 week before the
election, Crowe approached her at her machine and, after a
comment about walking picket lines if the Union were to
come in, asked Reed what she thought about the Union.
Reed said she thought it was necessary. Also, during this
4 The General Counsel, in his brief, argues that the violation should also
be based on enforcement of the rule in question . The complaint contains no
such allegation, and specific evidence of enforcement does not appear in the
record. Contrary to the General Counsel, f am unwilling to conclude that
vague and general testimony by Plant Manager James Bevill that all 22 rules
were enforced "to the best of my knowledge and ability" is tantamount to
an admission that the one rule in controversy here was actually enforced-
8 The complaint alleged that supervisor Doris Boyd threatened an
employee with plant closure . The record does not show that Boyd engaged
conversation, Crowe stated that the plant would close if the
Union were designated.
Bobbie Bryson testified that about a week before the
election, Crowe came to her machine and told her not to
vote for the Union, and that the factory might close if the
Union were designated. Also during this conversation,
according to Bryson, Crowe asked her how she felt about
the Umon. Bryson responded that she did not know much
about it .9
In contrast with the foregoing, Crowe denied ever asking
Cail anything about the Union, but claims that Cail asked
her whether the plant would close if the Union came in.
According to Crowe, Cail, Bryson, and Genetta Reed
frequently questioned her about the Union and as to what
consequences would follow if the Union came in. Crowe
denied ever discussing the Union with Wesley. As to
Bryson, Crowe denied that she ever inquired as to Bryson's
feelings about the Union and further denied telling Bryson
that the plant would close if the Umon came in. Crowe
could not recall whether she told Genetta Reed that the
plant would close if the Union were designated, nor could
she recall ever having a conversation with Reed, before the
election, in which the subject of the Union came up.
I credit Cail, Wesley, Bryson, and Reed. I was favorably
impressed with the demeanor of Cail and Wesley and in
addition, with respect to Bryson and Reed, I note that, as
incumbent employees at the time of the hearing, I doubt
that they would have related false testimony prejudicial to
Respondent. The testimony of all four portrayed Crowe as
having engaged in a somewhat consistent pattern of
conduct, which in contrast with Crowe's testimony has a
strong ring of plausibility. Crowe was totally unimpressive.
She did not respond to the accusations made against her
with direct, forthright denials but seemed even to grope
and evade the most leading and exculpatory of questions
put to her by Respondent's own counsel. Her effort to
mitigate the testimony of Cail, Bryson, and Reed by
claiming that they would question her about the Union
seemed improbable and contrived. None of the employees
who testified that they had some role in the union
campaign attested to a willingness to run the risks of any
overt conduct in furtherance of that effort. In this light, it is
difficult to believe that Cail, Bryson, and Reed would have
raised such matters with Crowe. That Crowe fell upon this
explanation loosely as a convenient catchall is suggested by
her first indication that she could not recall discussing the
Union with Genetta Reed, and her subsequent inclusion of
Reed in the group of employees who repeatedly asked her
questions about the Union.
Based upon the credited testimony, I find that in each of
the separate incidents related by Cail, Wesley, Reed, and
Bryson, Respondent coercively interrogated employees
thereby violating Section 8(a)(1) of the Act. I further find
in any such conduct and the allegation is dismissed insofar as it pertains to
her.
9 In its brief, Respondent claims that the testimony of Bryson and Reed
is contradictory. This assertion rests upon the assumption that Bryson and
Reed were giving separate accounts of a single conversation with Crowe,
The record indicates to the contrary, and I am satisfied that Bryson and
Reed were each testifying to separate conversations with Crowe, one of
which occurred during the morning hours and the other in the afternoon.
Accordingly, I see no contradiction in the accounts of Bryson and Reed.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent violated 8(a)(1) by Crowe's threats to
Wesley, Reed, and Bryson that the plant would close if the
Union were designated.
c. By O1a Fitts
At times material, Fitts was a line supervisor whose
authority covered several sewing operations, from the
sewing of buttons to the collaring of the clothes.
Mae Ella Davis testified that on July 2, following a
speech made by Paul Bernstein, Fitts, at Davis' machine,
asked Davis what she thought about the speech. Davis said
she didn't know. Fitts indicated that she (Fitts) needed her
job. Davis advised that she needed hers too. Fitts replied,
"Well, you know what to vote then."
Johnnie Wesley testified that on the day of, but prior to
the election, Fitts approached her at her machine, stating,
"Johnnie, I came to see how you are going to vote." Wesley
advised that she didn't know, and couldn't say. Both
laughed, and Fitts then asked if Wesley had heard
Bernstein's speech. Wesley said she had. Fitts asked if she
understood what was said and Wesley said she thought she
did. Fitts advised that if a majority of the employees voted
yes, "we won't have a job." According to Wesley, the
conversation ended with Fitts stating that if the Umon
went through, "the plant would surely close."
Genetta Reed testified that on the day before the
election , Fitts came 'to her machine and told her to vote no,
because if she voted yes "the Union will come in and the
plant will close down."
Fitts, upon initial examination by Respondent's counsel
as to whether, before the election, she discussed the Union
with any employees, responded by indicating that she
could not remember "too much what was said," and that
she didn't "remember really having a conversation with the
employees." After further efforts by said counsel to refresh
her recollection,fFitts, as to Mae Ella Davis, testified that
Davis asked'her if the factory would close if the Union got
in. -Fitts relates that she `responded to Davis by indicating
that she,did not know. Fitts eventually admitted that she
igfocmed Davis that she 4(Fitts) needed her job, and that
Davis needed her's too. Fitts denied that she told Davis
how to vote. As to Johnnie Wesley, Fitts testified that she
did have a conversation concerning the Union with
Wesley. After indicating that she could only remember
Wesley telling her that she had heard the Company's view
and wanted to hear the Union's, Fitts went on to deny that
she came over to Wesley's machine to see haw the latter
was going to vote, and further denied making the threat of
plant closure. As to Genetta Reed, Fitts denied having a
conversation on .July 3 with Reed concerning the Union or
the election.
On cross-examination , Fitts, when confronted with her
pretrial affidavit, did admit asking certain employees who
were her "friends" how they felt about the Union.
I credit Davis, Wesley, and Reed. Reed's testimony as to
the conversation she had with Fitts on July 2 was not met
by a denial on the part of the latter, since Fitts was not
examined with respect to any conversations with Reed on
that day. Insofar as Fitts denies the statements imputed to
her by the General Counsel's witnesses, her testimony is'
considered unreliable. Davis, an incumbent employee, and
Genetta Reed, also employed by Respondent at the time of
the hearing, afforded forthright and entirely credible
accounts of the alleged unfair labor practices attributed to
Fitts. The testimony of Wesley is consistent with the
pattern of conduct imputed to Fitts which was limited to
the day preceding and the day of the election. Fitts, on the
other hand, confessed to a lack of recollection which
rendered suspect the entirety of her testimony. Indeed,
even after efforts on the part of counsel for the Respondent
to refresh her recollection, Fitts responded with occasional
imprecision and contradiction, and repeated assertions of
an inability to remember. In my opinion, the conduct
attributed to Fitts by Davis, Wesley, and Reed was
sufficiently interrelated and compacted in, time to invite
direct and clearly expressed denials, if in fact the testimony
of her accusers was imagined, erroneous, or a byproduct of
misunderstanding.
Accordingly, based upon the credited testimony of
Davis, Wesley, and Reed, I find that Respondent, through
Fitts, on three separate occasions just prior to the election,
independently violated Section 8(a)(1) by coercively
interrogating employees concerning their union activity,
and by threatening reprisals if the Union were designated
in the election.
d. By Pauline McClure
At all times material Pauline McClure was the head
supervisor, and exercised authority at the level between
James Bevill, the plant manager, and all subordinate
production and training supervisors.
Annie Ruth Cail, without contradiction, testified that on
the 21st of June, McClure came to Cail's machine,
inquiring as to what Cail thought about the Umon. Call
responded that she didn't know, and was then told, by
McClure that if she had anything to discuss about the
Union, Cail should feel free to come to either McClure or
Bevill. Gloria Donaldson, over McClure's denial, testified
to the effect that she had an identical conversation with
McClure on July 2.
Jane Ella Reed testified as to a conversation between
herself and McClure which occurred prior to Jane Ella
Reed's discharge after work, at a Piggly Wiggly Super
Market, where both were shopping. McClure asked her
what she thought about the speech that "the man" gave,
and Reed responded that she did not know. McClure then
told Reed, "you girls have got to get together and vote no."
McClure was not examined as to Cail's version of their
conversation of June 21. Cail's uncontradicted testimony is
credited and, absent any showing of a legitimate basis for
the McClure's questioning of Cail, and in the context of the
other unfair labor practices found herein, I find that
Respondent thereby engaged in a further act of coercive
interrogation violative of Section 8(a)(1).10
McClure admitted to frequent conversations with Jane
Ella Reed at the Piggly Wiggly, but denied that the Union
10 In the light of the above finding, the incident reported by Donaldson Donaldson's veracity, as is more fully discussed infra, I am unwilling to base
is somewhat cumulative. But, in any event, in view of my doubts as to an unfair labor practice upon her controverted testimony.
SHAW INDUSTRIES 1201
or the election was ever discussed or that she ever told
Reed that the girls have got to get together and vote no. In
my opinion, Reed's testimony in this regard is too vague to
warrant a clear resolution of credibility. Apart from the
references to "the man's speech," Reed's testimony does
not identify when this alleged conversation occurred.
Furthermore, critical to her testimony is the question of
whether this was a reference to the Purnick or Bernstein
speech; for, if the latter, since Bernstein spoke to the
employees after the discharge of Reed, her account would
be thoroughly incredible. The confusion is compounded by
Reed's attempt to identify the speaker, since the informa-
tion she supplied, considered against other matters of
record, pointed to Bernstein, rather than Purnick. On this
state of the record, Reed's testimony requires too many
corrective inferences to form the basis for an unfair labor
practice finding.
e. By Marice Peacock
According to Bonnie Williams, Marice Peacock, an
admitted supervisor, on the morning of the day on which
the election was held told Williams that if the employees
voted "yes" the plant could close down. After this Williams
left the plant to escort her daughter to the doctor. She
returned to the plant at about 1 p.m. that day. Thereafter,
Peacock and another supervisor, Doris. Boyd, were in the
vicinity of Williams' machine. Williams asked Peacock
what would happen if the Union came in, and Peacock,
according to Williams, replied that the plant would close
down. Boyd then said that she had worked at the plant for
11 years. Peacock then said that she had found another
job.
Peacock could not recall the conversation which Wil-
liams described as having occurred on the morning of the
day of the election. She denies ever telling Williams that
the plant would be closed if the employees voted "yes. ",She
admits, however, to a conversation with Williams that
afternoon, in which Williams beckoned Peacock over to
her machine and asked Peacock how she was going to vote.
After this they exchanged views concerning Peacock's
ineligibility, as a supervisor, to participate in the election.
Boyd did not testify.
I discredit Williams, because I was not sufficiently
impressed with her demeanor to believe that after Peacock
in the morning had informed her the plant would close,
Williams would again later in the day have asked Peacock
what would happen if the Union came in. Considering the
lack of corroboration, the fact that Williams had quit
Respondent's employ prior to the hearing, and the
inherently suspicious nature of her testimony, I reject her
account and shall recommend dismissal of the 8(a)(1)
allegations based thereon.
f. By Paul Bernstein
On July 2, Bernstein, Respondent's president, who
resides in New York, was present at the Shaw plant. He, at
the time, during working hours, addressed the assembled
employees concerning the organizational campaign and the
impending election.
The General Counsel claims that Bernstein in the course
of his speech threatened to close the Shaw plant, if the
Union were designated by a majority: Respondent, on the
other hand, contends that Bernstein spoke from a prepared
text, which is in evidence, and which, according to
Respondent, is devoid of any such threat.
In support of his position, the General Counsel adduced
testimony from Johnnie Wesley, Genetta Reed, and Gloria
Donaldson. According to Wesley, Bernstein in the course
of his remarks stated that "if the Union got in the plant
that he would pack up, move out, get out' and go
somewheres else that there wasn't a Union at." Genetta
Reed testified that Bernstein said "if the Union get in the
plant the plant would ordinarily be closed down, the plant
would be ordinarily closed down and `he had other
factories that could do the same types of shirts that we
did." Finally, Gloria Donaldson testified that Bernstein
informed the employees that "if a union-calve into the
plant, the plant would be shut down because people would
rather buy a shirt from a nonunion plant, than shirts from
a' plant that has . . . a union in it."
As would be expected, the text of the prepared speech
allegedly delivered by Bernstein lacks the direct threats set
forth in the above testimony. Most closely approximating
the references attributed to Bernstein, are the following
extracts from the prepared statement:'
Some of you have made the statement that Unions
seem to work okay in some businesses and you ask why
a union would not work here.
There are many reasons that I could name but let us
talk about some of them. By its nature, the shirt
business isn't like the steel business or the automobile
business. It doesn't take a big company to put in a shirt
factory. Most shirt makers are non-union. Our compe-
tition is all non-union. In most cases, if one of our
competitor's plants is unionized; the competitor moves
his operation to some other location that isn't union
and starts again.
Some shirt makers are like us and have more than
one plant. We have four now and are looking at
another location. -Our competitors make the same kind
of shirts at each plant and if one of them goes union
and can't compete anymore, they transfer that business
to their non-union plants.
When this election is over, our non-union competi-
tors are still going to be making shirts somewhere and
so am I. We came here not to close a plant - but to
open one.
On balance, I do not believe that the testimony of
Wesley, Reed, and Donaldson represents an exact portray-
al of Bernstein's spoken words. Although each imputes a
direct threat of closedown to Bernstein , the variances in
their respective accounts, at a minimum, suggest that they
were not recanting his specific words, and lead me to
conclude, without questioning their veracity in this regard,
that all three were testifying as to their understanding of
what was said, rather than the precise content of his
statements . Based upon assessment of the testimony and
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considering the probabilities, I find that Bernstein's
remarks were limited to those appearing in Respondent's
Exhibit 6.11
However, the matter does not end there. I have
heretofore found that, Respondent through the remarks of
supervisors Crowe and Fitts, on the very day of Bernstein's
speech, unlawfully threatened several employees with plant
closure if the Union were successful. There is little doubt
that Bernstein 's speech set the stage for these independent
coercive expressions, and in the overall context, the
intended import of his message cannot be separated from
the more direct remarks made by Crowe and Fitts. But
apart from the surrounding circumstances, I am satisfied
that the" speech itself, standing alone, is sufficient_ to
substantiate the allegation that Bernstein threatened to
close the plant if the Union came in. Examination of the
entire speech, with emphasis upon the portion set forth in
the above text, reflects an effort to impress employees with
facts rather than debatable matters, counterable argument,
or prediction. Bernstein leads off by indicating why the
Union would not work at Shaw, and then proceeds to
elucidate that some competitors close and remove their
plants when organized, while others transfer operations to
their other existing facilities when that occurs. Thus,
Bernstein's admonition that the Union would not work at
Shaw, is expressed in unreserved terminology as to what
always happens upon organization of a nonunion shirt
factory, and on its face purports to convey "facts of life" in
the shirt industry, rather free of any ambiguity as to what
would occur at Shaw. In my opinion, this speech refers to
plant closure in a context of certainty, while lacking in
objectivity, as well as the flexible terminology of argumen-
tation or prediction. Whatever his true intent, employees
were squarely apprised of what Bernstein professed to do
at Shaw, if the Union were to win the election. Anyone
hearing this speech would be left with the impression that
the Shaw plant would be saved from closure, in that event,
only if Bernstein did not really mean what he was saying. I
find that Bernstein's remarks exceeded the form of free
expression protected by Section 8(c) of the Act, and
contained an unambiguous threat of closedown. I find that
Respondent thereby violated Section 8(a)(1) of the Act.
3. The base rate issue
The production operators at the Shaw plant work under
an incentive pay arrangement. Pursuant thereto , a stand-
ard, daily output quantity exists for each operation. If an
operator fails to produce at levels meeting or exceeding the
assigned standard , their compensation for that day's work
is limited to the minimum wage guaranteed by Federal law.
As for those who meet or exceed their prescribed standard,
Respondent maintains base rates which vary in amount
depending on the operation involved, and which are
intended to exceed the minimum wage . Such employees
receive the higher base rate pertaining to their operation,
rather than the minimum wage, as a reward for their
productivity.
Effective May 1, the Federally quaranteed wage was
increased by law from $1.60 to $2 hourly. At that time, the
base rates which had been in effect at Shaw were $2, $2.06
and $2.11 respectively. Obviously, after the new minimum
wage became effective, some upward revision in the base
rate schedule was necessary, if Respondent were to
preserve the incentive principle. Accordingly, in late April
or early May, about a week before the Union filed its
election petition, Bevill spoke to the employees, informing
them of the increased minimum wage and also announcing
that new and higher base rates would be announced at a
later date. According to Bevill, it was the Respondent's
"plan" to put new base rates into effect 2 weeks after May
1. However, employees were not informed as to any such
intention.
On May 6, the RC_ petition was filed by the Union.
Thereafter, Bevill made another speech to the employees,
advising them that the new base rates could not be made
effective because the Company had received the petition
from the NLRB and felt it would be an unfair labor
practice to enact the new base rates at that time.
Thereafter, Respondent's production manager, Purnick,
addressed the employees in an extemporaneous talk
concerning the organization campaign. According to
Purnick, he at that time sought to educate the employees as
to certain experiences with union organization sustained by
employees at Respondent's Hamburg, Arkansas, plant. He
informed the employees that during the 3 -year period of
negotiations at that location between the Employer and the
Union, the employees were not granted a single wage
increase or additional benefit, and that the Union upon
conclusion of those negotiations left and had not since
returned.
Also, in his July 2nd speech, Respondent's president;
Paul Bernstein, made the following observations concern-
ing the deferral of base rate revisions at the Shaw plant:
It was not the Company that filed the union election
petition the first week of May right at the time the new
minimum wage law took effect. The Union did this.
Why did the union do this? The union knew that under
the law, a company cannot make wage increases after a
union election petition is filed.
Under the law, I can't tell you what the Company
would do if the Union were voted down in the election
tomorrow. But, I can tell you that at our Hamburg
plant where there was no union election pending, we
increased the base rates when the minimum wage was
raised.
it Respondent's counsel testified that the speech in question was
prepared by him, and that he followed the text during Bernstem 's delivery
thereof on July 2. In connection with the finding that Bernstein simply
delivered his remarks from the prepared text, I have not overlooked the
observation of the General Counsel and the Charging Party that no
testimony was elicited on behalf of Respondent that Bernstein made no
departures from the prepared text. Nonetheless, I emphasize that my finding
is predicated upon the unconvincing nature of the parol evidence offered by
the General Counsel on this question.
SHAW INDUSTRIES 1203
After the election, on July 8 or 9 new base rates were
made effective at the Shaw plant, in the following
amounts: $2.15, $2.25, $2.35, and $2.40.12
The complaint alleges that both the withholding of the
new base rates as of May 13, 1974, and the implementation
thereof as of July 8 or 9, independently violated Section
8(a)(1) of the Act.13
As the Board has held, "an employer confronted with a
union organizing campaign should decide the question of
granting or withholding benefits as he would if a union
were not in the picture; if his course of action in granting
or withholding benefits is promoted by the Union's
presence, he violated the Act." The May Department Stores
Company d/b/a Famous-Barr Company, 174 NLRB 770,
771 (1969). There can be no question in the instant case as
to the basis for the delayed implementation of the new base
rates. It is conceded that the Respondent had planned to
put the new rates into effect in mid-May and failed to do
so only because of the Union's petition.
Nonetheless, Respondent argues that implementation of
the new base rates as planned would have been unlawful,14
and the withholding of the new benefits was necessary to
avoid that consequence. I do not agree. As indicated by the
principles set forth above, an increase planned pnor to the
commencement of an organization drive, which would
have been granted thereafter, may be legitimately invoked
since not related to the presence of a union.
Furthermore, this is not a case where the withholding of
benefits could be regarded as limited to a good-faith effort
to avoid unlawful action.15 Quite to the contrary, the
withholding was exploited by Respondent in a manner
which hardly could be described as indicative of an interest
on its part, of leaving the base rate issue to neutral status
during the election campaign. For, on the day before the
election, President Bernstein, in the context of other
antiunion remarks, placed the onus for the withholding of
the increased base rates upon the Union. The plain import
of his remarks were to the effect that employees already
had suffered impaired benefit levels because of their
exercise of Section 7 rights. Here, as in American Paper and
Supply Company, Container Division, 159 NLRB 1243, 1244
(1966), Bernstein "held out to the employees a benefit they
would be receiving but for the Union." By withholding the
increase in base rates because of the Union and in order to
disparage the Union in the eyes of employees, I find that
Respondent violated Section 8(a)(1) of the Act.16
As for the further allegation in the complaint that the
implementation of the new base rate, after the election, was
also violative of Section 8(a)(1), the General Counsel in his
12 Although in the past the base rates had covered only three different
operations, the addition of a fourth, more difficult operation at the Shaw
plant required installation of the additional base rate of $2.40 hourly.
13 The complaint also alleges that Respondent violated Sec. 8(a)(1) by
statements allegedly made by Punuck that the wage rates of employees at
Shaw were frozen because of the union campaign. It is noted that this is the
substance of the above quote taken from Bernstein's July 2nd speech.
Purnick denied making any such statement and also denied the testimony of
Genetta Reed, Bobbie Bryson, and Jane Ella Reed that he stated that if the
Union came in, the wages or benefits of employees at Shaw would be
frozen. Here, as was true of the testimony concerning Bernstein's July 2nd
speech, it is my impression that the parol testimony offered by the General
Counsel was unreliable since reflective of the witness' comprehension of
Purnick's remarks rather than his precise words. Indeed, if their testimony
posthearing brief expresses no theory, - argument, nor
authority in support of this proposition. It is true that the
new benefits were at that time placed in effect though the
validity or conclusiveness of the election remained in
doubt; normally, the grant of new benefits at such times
violates Section 8(a)(1) of the Act. See, e.g., Ambox,
Incorporated' 146 NLRB 1520, 1521 (1964). However, in
the particular circumstances of this case, it would be
inappropriate to bring Board remedies to bear upon this
issue. As heretofore found, the new base rates, but for the
petition, would have been made effective prior to the
election in mid-May. Indeed, as of May 1 the relationship
between the old base rates and the increased minimum
wage had compressed to the point of threatening the basic
objectives. of Respondent's incentive system. Although
Respondent unlawfully deferred its cure for the problem,
having found this to have been the case, I shall recommend
an effective remedy with respect to that phase of the
transaction. However, having committed this latter viola-
tion, Respondent ought not to be penalized by a further
unfair labor practice finding, which would rest on the
assumption that the Act precluded Respondent from
eliminating the inequity in its incentive system until the
question concerning representation were finally resolved.
On the contrary, as the new'base rates were not excessive,
and since, should a rerun election prove necessary, any
adverse consequences upon employee choice resulting
from this grant of benefits will be neutralized through other
provisions of the remedy recommended herein, I find that
it would not effectuate the policies of the Act to find this
additional violation. Accordingly, I shall dismiss the
allegation that Respondent violated Section 8(a)(1) of the
Act by putting the new base rates into effect.
D. The Alleged Discrimination
1. Annie Ruth Cail
Cail, pnor to her discharge, had an employment history
at the Shaw facility dating back to January 1968.
It will be - recalled that Cail was the employee most
responsible for the advent of the Union at the Shaw plant.
Union Organizer James McCormick made his initial
contact at the plant through Cail. She set up the first
meeting of employees for promotion of the Union,
arranged for McCormick to meet directly with other
employees, and actively solicited employee signatures to
union authorization cards. Eddie Crowe, the quality
control supervisor, named Cail as one of three employees
whom she considered as being in favor of the Union.
were accepted, a stronger and more clear-cut violation would be made out
than was spelled out by the allegation set forth in the complaint. I shall
recommend dismissal of this allegation of the complaint.
14 H. A. Kuhle Company, 205 NLRB 88 (1973), cited by Respondent as
authority for its view that the implementation of the new base rates as
planned would have been unlawful , does not support that position. In
Kuhle, the violation was predicated on the fact that the decision to give the
increase did not predate the organization campaign , but was made in
response to it
15 See e.g., N.L.R.B. v. Dorn's Transportation Company, Inc., 405 F.2d
706, 714, 715 (C.A. 2, 1969).
16 Hendel Manufacturing Company, Incorporate4 197 NLRB 1093, 1099-
1100 (1972), enfd. 483 F.2d 350 (C.A. 2, 1973).
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, June 24, at the end of the workday, Cail
was discharged. Head Supervisor McClure testified that
she recommended to Bevill that Cail be terminated after
the latter failed to show improvement following oral
warnings concerning her low production and poor quality
of work. Although McClure testified that these alleged
deficiencies were reported to her by the line supervisor, Ola
Fitts, and the quality supervisor, Eddie Crowe, neither
Fitts nor Crowe were examined as to Cail's performance.
According to Bevill, some 3 weeks before her discharge,
McClure had mentioned that Cail's production was low,
and also that she had been observed talking to her fellow
employees in violation of company policy. Bevill relates
that he at that time asked McClure to talk to Cail about
her production. Thereafter, McClure reported that the
problem was continuing and Bevill again told McClure to
talk to Cail. Subsequently, according to Bevill, he observed
Cail, away from her work station, walking across the
production floor, and told her to return to her machine.
Bevill admittedly had no knowledge as to why Cail was
away from her work station on that occasion. A few days
later, Bevill related that Cail was again observed "doing
these things" and her production was still low. According-
ly, when McClure recommended her discharge, he con-
curred.
According to Cail, she at no time received any warning,
either in writing or orally, as to any inadequacy in her work
performance. With respect to production, she testified that
two other girls who worked on the same operation, namely
Bobbie Bryson and Genetta Reed, had a daily output
exceeding her own by but 1 to 2 dozen daily. Bryson and
Reed corroborated Cail in this respect. All three testified
that in the period preceding Cail's discharge, no one made
production (45 dozen shirts daily) on the single-needle cuff
setting operation to which Cail had been assigned when
discharged. Reed and Bryson further testified that prior to
Call's discharge, they received no warnings about their low
production, which at that time was well below the
prescribed standard. No effort was made by Respondent to
offset the corroborating testimony of Reed and Bryson17
by persuasive counterproof.18
On the question of whether Cail was warned about her
work performance, I discredit McClure and Bevill. Call
was a far more impressive witness, who testified in a
forthright manner, and related facts honestly in the manner
of one not fearful of the truth. I could not say the same for
McClure, who manifested a somewhat limited capacity for
recollection and a bent towards exaggeration. As for Bevill,
my suspicion was aroused by his expressed concern for
17 Respondent in its brief points to the admission by both Reed and
Bryson that they ultimately made production on the single-needle cuff
setting operation. It is plain, however , that neither produced at standard on
this operation until after they were issued formal warnings, and given trial
periods to improve their production . All of this transpired well after the
discharge in issue here.
18 In this connection , I note that in cross-examining Cail, Genetta Reed,
and Bryson, Respondent's counsel appeared to be utilizing production
records which, from his questions , seemingly reflected the percentage of
standard made by all three at various tunes both before and after the
discharge . No such records were offered in evidence.
is I impute Crowe 's admitted suspicion of Cail's union sentiment to
management generally. I am unwilling, however, to do so with respect to the
knowledge possessed by Supervisor Ollie McWilliams . McWilliams was on
Call's alleged frequent talking and roaming away from her
work station. McClure's testimony is barren of any
reference to this form of indiscretion, as was the testimony
of Fitts, who was Cail's line supervisor.
I am persuaded that Cail's termination was based
entirely upon union considerations. Witnesses on behalf of
Respondent could not point to a single act on the part of
Call which would lend some explanation for the precipitant
action, without prior warning, of effecting her discharge at
the close of work on a Monday. Under such conditions the
termination of, perhaps, the leading employee protagonist
of the Union, whose union sentiment was suspected,19 in
the context of an antiunion campaign, marked by
numerous unfair labor practices, suffices to establish a
prima facie case of unlawful discrimination. The defense,
instead of countering, is sufficiently suspect to enforce the
existence of a proscribed motivation. Thus, witnesses for
the Respondent point to three distinct inadequacies in
Call's work; namely, low production, poor quality, and
excessive talking. However, they could get together on but
one - low production. For while Bevill makes no
reference to McClure's claim of poor quality, McClure
makes no mention of Bevill's complaint concerning Call's
alleged talking problem.20 Neither Fitts nor Crowe who
were in a position to observe such indiscretions, were
examined as to Cail's work record. Somewhat contradict-
ing was Respondent's claim that, in Call's case, low
production warranted a discharge, without formal warning
or a clearly defined opportunity to improve. This, despite
the fact that Bevill portrayed himself as a man of fairness
and understanding, who routinely extended corrective
opportunities to other employees, including Cail's cowork-
ers Genetta Reed and Bobbie Bryson. The credited,
uncontradicted testimony of Cail, Bryson, and Genetta
Reed hardly reveals that Cail's production record was
beneath comparative levels of individual output as to
justify the disparate treatment accorded her. In sum, I find
that Respondent's discharge of Cail, shortly ^ before the
scheduled Board election, was in reprisal for her known or
suspected union activity, and that the reasons assigned by
Respondent for said action were'pretextual. Accordingly, I
find that the discharge of Annie Ruth Cail violated Section
8(a)(1) and (3) of the Act.
2. Jane Ella Reed
Prior to her discharge, Reed had been employed at the
Shaw facility since May 1969. Like Annie Ruth Cail, she
too was terminated at the end of the workday on Monday,
June 24.
the ground floor of the union campaign prior to her promotion to a
supervisory position. She had full knowledge of the involvement of Call and
Jane Ella Reed in that effort . Yet, I am convinced, to a certainty,
considering the longstanding friendship between all three , as well as other
highly cogent considerations , that McWilliams truthfully testified that she at
no time informed upon either Cad or Reed. In my opinion , the presumption
which allows knowledge of a supervisor to be imputed to management has
been refuted in this instance. Cf. Goldblatt Bros., Inc., 77 NLRB 1262, 1263
(1948); William B Patton Towing Co. and Tex-Tow Inc., 180 NLRB 64
(1969).
20 Significantly, McClure did testify that she had received reports from
Line Supervisor Fitts to the effect that Jane Ella Reed was " walking around
and talking to other employees."
SHAW INDUSTRIES
Reed performed a number of operations while employed
at the plant, but was a button sewer at the time of her
discharge. Respondent does not deny that Reed always
made 100 percent of her production quota and that she
often produced well over her 62 dozen per day standard.
Reed was one of the early supporters of the Union,
having signed an authorization card the day after organizer
McCormick made his initial contact with Annie Ruth Cail.
She signed her card at the behest of Ollie McWilliams who
at the time was actively engaged in the organizational
effort. In addition, Reed herself actively solicited
signatures to authorization cards, passing them out on the
parking lot outside of the plant. Reed also conducted
union meetings at her home.
According to Reed, prior to her discharge, no supervisor
ever spoke to her about her work. However, at about 3:30
p.m. on June 24 she was summoned to Bevill's office and
informed by Bevill that he couldn't use her any more. She
asked why, and he advised that Crowe had reported that
her quality of work was bad and that she had to do a lot of
repairs. Reed denied this, claiming that she did not get
repairs. Bevill indicated that they would see about that. At
this point according to Reed, Bevill said that too many
people were standing around Reed's machine talking. Reed
advised Bevill that she did not know what he was referring
to. Bevill then said that this was all he had to say and he
then terminated her. Respondent produced five witnesses,
including Bevill and Supervisors McClure, Crowe, and
Peacock, as well as employee Mary Rose Herbison, to
testify in support of the Company's alleged reasons for the
discharge. Neither Bevill nor McClure, however, who were
in attendance at the discharge interview, contradict Reed's
fully credited account of what Bevill had said in discharg-
ing her. Nor does it appear from the testimony elicited on
behalf of Respondent, that Reed engaged in any specific
misconduct at a time immediate to her discharge. From my
observation of Respondent's witnesses and, consideration
of their testimony I am convinced that the defense was
unbelievable, and that it bore all the earmarks of an effort
to mask the true facts underlying an illicit discharge.
Thus, McClure and Bevill were the only parties to the
decision to terminate Reed. According to McClure, about
1 or 2 weeks before the discharge she received reports from
Ola Fitts, Reed's line supervisor, and Eddie Crowe, the
quality supervisor, that the quality of Reed's work was bad.
McClure, acting on such reports, claims that about a week
before the discharge she herself investigated Reed's work.
According to McClure, she checked the volume of repairs
that Reed was getting back for rework, and "asked her to
try to improve." About a week later, Fitts and Crowe
allegedly reported that she had not improved, and
McClure discussed this with Bevill, recommending that he
discharge Reed. Bevill agreed and Reed was called to his
office and then discharged. McClure could not recall
anything that was said between Bevill and Reed on that
occasion.
Fitts was not examined as to Reed's job performance.
Crowe, however, testified that Jane Ella Reed "just did
bad work." According to Crowe, Reed "was just a lousy
button sewer"; Reed would not sew buttons on and when
her work was returned to her there would be trouble. Both
1205
Crowe and McClure variously testified that Reed's poor
quality had been a continuing problem over the years, on
the one hand, and yet, on the other, they testified that it
was discovered that Reed's work was bad just 2 to 3 weeks
before her discharge.
I discredit both Crowe and McClure. Their testimony
seemed exaggerated, contradictory, and evasive. Both
seemed prone to improvise with the facts when the logic of
their accounts was put to the test. No convincing
explanation was offered as to why, if Reed's quality
problem had persisted for so long, interest in her poor
production was not aroused until shortly before the
discharge. The improbability of their testimony and its
exaggerated nature is also suggested by Respondent's
practice of requiring operators to redo their own repair
work. Under this practice, operators required to do repairs
must perform the rework during time charged against
production, and hence those with excessive quantities of
repairs would have difficulty in meeting their production
standard. No explanation was offered as to how Reed
could have consistently maintained a high level of
productivity, meeting her daily output quantity regularly,
while reworking the excessive number of repairs that
Crowe and McClure attribute to her. I credit Reed's
testimony that she had few repairs.
Bevill was the last witness called by the Respondent and,
apparently in recognition of the weaknesses that had
unfolded through the course of the testimony of McClure
and Crowe, his description of the reasons leading to the
discharge showed a shift away from the complaint that
Reed had a poor quality of work. Thus, in summarizing his
reasons, Bevill makes a vague reference to Reed's attitude
and her mixing and talking with the people on the line. He
states that the quality of her work was not a major
problem, and that he probably would have mentioned it
and "let it go" had it not been for him having called Reed
to his office on three previous occasions with respect to
other matters. In this latter connection, it does appear that
some time prior to the discharge, Reed and two of her
coworkers , Beatrice Robinson and Mary Rose Herbison,
were having difficulty getting along.
The first such incident involved a dispute growing out of
Reed's refusals to do certain repair work which she claimed
belonged to Herbison, and therefore ought to have been
assigned to Herbison for, rework. Bevill, not knowing who
was at fault, resolved the problem by dividing the work
between the two girls and by admonishing them that their
bickering would have to cease.
After this Bevill received a report from Marice Peacock,
who was then the line supervisor on Reed's operation, that
Reed, Herbison, and a third employee , Beatrice Robinson,
were "at it again." This incident related to an accusation
against Reed that she had been selecting the shirt bundles
which could be more rapidly processed. According to
Bevill he could not at that time ascertain whether Reed was
at fault, for lack of sufficient evidence, but he suspected
she was responsible. In any event, Bevill concluded the
meeting by telling the girls that their problems would have
to stop because they were a disruption to other employees,
and that, if not, and he couldn't determine who was at
fault, all three would be, discharged. Following this, there
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a third incident in which Reed was again accused of
selecting bundles. Reed went to Bevill's office, with
Peacock in attendance. Bevill indicates that he told Reed
that he felt that she was causing the problems and they had
to stop immediately, and if not she would be discharged.
From the uncontradicted credited testimony of Reed, it
is apparent that Bevill, in the discharge interview, made no
reference to these incidents, or to the prior warning
growing out of them, or to Reed's past difficulties with
Robinson and Herbison. Nor does it appear that there was
any recurrence of Reed's difficulty with her coworkers at
any time proximate to her discharge. The record also
indicates that the last of the incidents involving Herbison,
Robinson, and Reed occurred some time prior to the
discharge, perhaps even a month before. Thus, the entire
matter transpired while McClure was in the hospital and
during a period when Marice Peacock was serving as line
supervisor. According to the sense of the testimony of
McClure, Crowe, and Peacock, McClure was back on the
job 3 to 4 weeks before Reed's discharge. Peacock testified
that she was relieved of her line supervisory responsibility
and transferred back to her normal duties as a training
supervisor either in May or June. Bevill's shift to reliance
upon this part of Reed's history struck me as afterthought.
I find it difficult to believe that Reed's problems with her
coworkers was a serious consideration since not referred to
by Bevill during the discharge interview, since the last of
the incidents involved occurred at least 3 to 4 weeks prior
to the discharge, and since there was no evidence of any
recurrence in the interim.
Although I am unwilling, for the reasons already stated,
to impute the knowledge possessed by Ollie McWilliams to
Respondent, the total circumstances, including the uncon-
vincing nature of the defense, reasonably support an
inference of proscribed discrimination. Both Cail and
Reed, two principal employee organizers, were discharged
on the same day, without prior warning as to any
inadequacy in the performance of their work. The action
taken against them was precipitate, having occurred after
commencement of the workweek, and without their having
engaged in any single, specific act of misconduct which
could have been said to have triggered the action taken
against them . The similarities underlying these discharges,
their timing, Respondent's animus , and the unbelievable
and shifting explanation by Respondent's witnesses as to
the reasons for Reed's discharge adequately support the
inference that Reed was known or suspected by manage-
ment- to have been an active employee organizer. I so find,
and based upon the foregoing I find that Respondent
terminated Reed because of her union activity in violation
of Section 8(a)(3) and (1) of the Act.
21 Johnson testified that she did not previously request a change in
machines because Peacock had informed her, on one occasion, to bear with
the old machine because new ones would be coming in next week. Peacock
testified that she merely told Johnson that she could get a different machine
and denied making any statement about new machines coming in. Upon the
probabilities, I credit Peacock's denial . There is no evidence that the
Company obtained or contemplated ordering new machines prior to the
hearing, and I doubt that Peacock would have made such a representation
based upon her own imagination . Furthermore, if Peacock had made such a
3. Emma Johnson
Johnson was hired on March 25, 1974, and was
continuously classified as a trainee up to the day of her
discharge on June 26, 1974.
In April, she was given an authorization card by Jane
Ella Reed in the parking lot. She returned the signed card
to Reed the next day. Johnson indicates that thereafter she
discussed the Union with other employees, but admits that
she never told anyone whether or not she would vote for
the Union. This represents the full extent of Johnson's
participation in union activity.
Johnson admits that about a month before her termina-
tion, the training supervisor, Peacock, told her that
McClure wanted to see her. McClure, at that time,
informed Johnson that her production was no greater than
what it had been when Johnson was first hired. Johnson
did not deny this, but explained that her machine was not
functioning properly. McClure indicated that she would
have the mechanic check out Johnson's machine. Accord-
ing to Johnson, the mechanics subsequently fixed the
machine and it ran well for awhile, but then the problems
developed again.
On the day of her discharge, Johnson was summoned by
Bevill, who advised her that she would be fired for low
production. Again Johnson did not deny that her pro-
duction was low, but responded by again pointing to all the
trouble she was having with her machine. Bevill told her
she could have asked for another machine and that the
reason for her low production was that she didn't care and
wasn't trying. To this, Johnson again asked how she could
make--production "if I was having trouble with the sewing
machine." She then got up and walked out 21
Both McClure and Peacock testified that Johnson was
warned by McClure twice before the discharge, and that
on both occasions Johnson 'was told that her production
would have to improve or she would be terminated.
Peacock further testified as to two incidents in which
Johnson reflected a disposition to avoid work. Johnson
disputes Peacock's version of both. The first incident
involved a situation in which Johnson ran out of work.
According to Peacock, she advised Johnson that she would
get more work from the cutting table, whereupon Johnson
indicated that Peacock "needn't bother because I am not
going to do any more goddamned work today `anyway." In
the second incident, Johnson was also out of work, and
Peacock told her she would put her to work on repairs so
Johnson would not have to go home. Johnson, according
to Peacock, replied that she was not going to do any repairs
and that she would go home first.
Although as to other questions of credibility that have
arisen in the course of this proceeding, I have found the
testimony of McClure to be unreliable, I do believe both
McClure and Peacock as to the conflicts arising in
statement , it seems only reasonable that Johnson would have confronted
Bevill with it when the subject matter was raised during the discharge
interview.
Johnson, at the hearing, claimed that her production was also impaired
by the fact that she was required to perform a variety of different
operations, and because she occasionally did not have enough work to do. It
does not appear that Johnson called these possible explanations for her low
production to the attention of management officials.
SHAW INDUSTRIES
connection with the Johnson discharge . I was unimpressed
with Johnson's demeanor and from my observation of her,
the accounts of Peacock and McClure seemed entirely
plausible.
In any event , even if the evidence relative to the
allegation in question were limited to the testimony of
Johnson, no suspicion is aroused by the circumstances
surrounding her discharge . Johnson's union activities were
extremely limited , and there is -not the slightest basis for
inferring that any management functionary had knowledge
or a basis for suspecting that Johnson had signed a card or
was prounion . In recognition of this weakness in Johnson's
case, the Charging Party argues that the violation should
nonetheless be found on the theory that Respondent
terminated Johnson to lend an aura ' of legality to the illicit
terminations of Annie Ruth Cail and Jane Ella Reed which
had been effected 2 days earlier . The Charging Party's view
rests upon raw speculation , and is totally baseless. There is
no suggestion from any source that any of Respondent's
officials sought to cloak its actions with respect to Cail and
Reed by reference to the Johnson discharge. In sum, I find
that the termination of Johnson was not shown to relate to
union activity , and, as the record stands, merely reflects
another example of Respondent 's frequently invoked
practice of terminating marginal producers who have
demonstrated a "lack of progress ." 22 Accordingly, I shall
recommend dismissal of the allegation that Respondent
violated Section 8(a)(3) and (1) by discharging Emma
Johnson.
4. Gloria Donaldson
Donaldson was hired on March 18 , 1974, and remained
classified as a trainee until her discharge on July 12.
On March 21 , while riding home with Jane Ella Reed,
she signed a union authorization card at Reed's request.
Thereafter, Donaldson engaged in no union activity, and at
one point in her testimony she indicates that she did not
even discuss the Union with other employees, until she
attended a union meeting on June 28 . At that meeting
Donaldson volunteered to act as a union observer during
the election scheduled for July 3.
On July 12, Donaldson, following the election in which
she acted as union observer, was terminated. The General
Counsel and the Charging Party contend that her discharge
was in reprisal for Donaldson's having served as a union
observer . Respondent claims that she was discharged
because of her failure to improve her low level of
productivity, after having received two formal warnings.
It is undisputed that Donaldson, prior to her discharge,
was issued two written warnings based on her low
production and poor quality of work . Both warnings
recited that termination would be in order in the event that
improvement was not shown. The first of these warnings
bore the date of June 26 , 1974 . Before Donaldson was
confronted with this document, she had orally testified that
she had received no warnings , nor was she called to Bevill's
office until after the election. On cross-examination, when
confronted with this document, which among other , things
bears Donaldson's signature, she reiterated that she did not
1207
receive this warning until after the election . According to
Donaldson, Bevill presented the warning to her for
signature about 5 days after the election. At that time she
states that the June 26 date was not on the document, nor
were there any check marks in the blocks designating the
reasons for the disciplinary warning . According to Donald-
son, though she was somewhat curious about the request to
sign a disciplinary warning whose material portions were
left blank, she concedes that she raised no questions
concerning this alleged procedure but simply signed the
document. Bevill, McClure , and McWilliams all testified
that, apart from the signatures, the disciplinary warning in
question was in a completed state when submitted to
Donaldson for signature on June 26.
I discredit Donaldson and find that she received her
initial written warning on June 26 , well prior to the
election . I regard Donaldson as a totally unreliable witness.
Her testimony as to highly material facts was contradictory
and in certain respects was proven erroneous by accepted
fact . She showed a complete inability to recall the timing of
important events and demonstrated a propensity to place
such events at times which were favorable to her cause.
Specifically with respect to the June 26 warning, much
aside from my expressed reservations as to Donaldson's
trustworthiness , I consider it entirely improbable that said
document was executed under the conditions and at the
time described by Donaldson. Firstly, I note that Donald-
son impressed me as a highly aggressive individual who
would resist vigorously any attempt to put something
across on her. I doubt seriously that she would have signed,
without questioning, an incomplete "disciplinary warning."
Also of interest is the fact that Donaldson, who prior to the
Union meeting of June 28 , had merely signed a card,
suddenly decided at that time to expose her union
sentiment to all by acting as a union observer . Absent any
other explanation , I regard it as entirely likely that
Donaldson took this step because of the warning she had
received 2 days earlier. It is noted in this respect that
Donaldson, on being questioned as to the date of the
meeting in question, testified that she attended that
meeting about 3 weeks after she had signed a card, which
would place the meeting, which was actually held on June
28, as having occurred in April . I find it difficult to believe
that such a departure from the actual fact with respect to
so highly material an event could be attributed to an
honest lack of recollection . On the contrary , it was my
impression that Donaldson may well have placed the
meeting at a time remote from issuance of the warning so
as to deceive as to the true reason that she elected to
become an union observer. I do not rely on Donaldson's
testimony as to any factual matter which is in dispute.
The remaining credited facts relative to Donaldson's
discharge reveal that on June 26 Donaldson was called to
Bevill's office and informed by Bevill that her production
had to be increased. Donaldson responded by indicating
that her production was low because she had to do repairs
for others and because most of the time she didn't have
sufficient material to work on . Bevill then completed the
disciplinary warning referred to above and gave it to
Donaldson for signature . Donaldson upon signing the
22 See Resp . Exh. 8(a)-(m).
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
document asserted that she fully understood its import.
The document specifically provided that improvement
must be shown by July 9, 1974. After Donaldson signed,
Ollie McWilliams and Pauline McClure added their
signatures.
On July 12 Donaldson was again called to Bevill's office.
Also in attendance were McWilliams, McClure, and Bevill.
Bevill then informed Donaldson that her production rate
still had not increased. Donaldson at this time indicated
that she'could not-increase her production because of the
machine she was on. Bevill then told McWilliams to put
Donaldson on another machine. He then gave McWilliams
the second written warning, which is in evidence, which
indicated that if improvement was not shown by the end of
that day she would be terminated. The document also
contained the written inscription "FINAL WARNING."
Also of importance is the fact that the production standard
applicable to the job that Donaldson was then performing
was 45 dozen per day. Bevill, during this meeting, noted
that on the day before, Donaldson had turned out 11
dozen shirts in a half day. He advised Donaldson that her
production for that day July 12, should be 25 dozen shirts.
Donaldson objected to this indicating - that she felt that
production at that level was impossible. Bevill then
dropped the requirement to 20 dozen. He then made a
notation on the disciplinary warning as follows: "Must
produce at least 20 doz. today or get terminated." Bevil]
then turned over the disciplinary warning to Donaldson,
but she refused to sign. Before Donaldson's release for
work that morning, Bevill instructed McWilliams to have a
mechanic check Donaldson's machine.
Donaldson only produced 13 dozen shirts that day.
Bevill credibly testified that in the course of the day he
went out into the factory to observe Donaldson and found
that she was "moving, just like, you know, we've got from
now til Christmas to do this." After observing this and
getting' the results of Donaldson's production, Bevill
testified that he decided to terminate her. Before doing so
he informed Donaldson that he could not put up with her
production any longer and indicated that she was not
trying. He advised Donaldson that he observed her during
the day and she impressed him as not seeming to care. In
response, Donaldson asked to be-put on another job. Bevill
refused, stating that if she was not going to try on her
present job, she would not try on anything else either. With
this, Bevill-discharged Donaldson.
Based on the foregoing, and particularly my rejection of
Donaldson's testimony as unworthy of belief, I find that a
preponderance of the evidence fails to establish that
Respondent treated Donaldson unfairly or unreasonably
or that Respondent acted against Donaldson for reasons
other than her failure to respond favorably to previously
issued and perfectly legitimate disciplinary warnings. I find
that Respondent has- established that Donaldson was
discharged for cause, and, accordingly, I shall recommend
dismissal of the allegation that Donaldson was terminated
in violation of Section 8(a)(3) and (1) of the Act.23
IV. CASE 26-Rc-4785
A. The Challenges
With respect to the determinative challenges, I sustain
the challenge to the ballot of Emma Johnson as I have
found that her employment was permanently terminated
for dust cause prior to the election, and' hence under.
standard eligibility criteria she was 'not entitled to vote.
As I have found that Annie Ruth Cail and Jane Ella
Reed were discharged in violation in Section 8(a)(3) and
(1) of the Act, the challenges to their ballots are overruled.
The only remaining issue with respect to eligibility
concerns the challenge to the ballot of Essie Selmon.
Sehnon left her employment with the Respondent on
February -22, 1974, to have a baby. She subsequently
returned to work, but- after the payroll eligibility date.
Although she at that time was given her old position, there
is no evidence that her return to work was pursuant to any
leave of absence, or guarantees arising from practice or
understanding with the. Employer. Thus,.Selmon testified
that when she left her employment in February, she did not
talk to' any supervisors or anyone else at the, plant about
her reasons for leaving. According to Selmon she gave no
notice other than a request of her mother-in-law to tell one
of the supervisors that "I will be taking off." There is no
evidence that Respondent maintained `a practice whereby
those leaving work ,to have a baby are assured of jobs when
they `return, nor is there evidence that at the time of
Selmon's leaving her employment in February, she had any
intention of returning or that Respondent had any
intention of providing her future employment. In these
circumstances, I can only construe Selmon's action in
February 1974 as a voluntary quit. Tlle•fact that she did
return, in the circumstances, can only be attributed to
conditions existing at that time; namely, her willingness to
work and the availability of a job There is no basis for
concluding that prior to her rehire, Selmon could reason-
ably be considered as possessed of any reasonable
expectancy of reemployment. I sustain the challenge to her
ballot. -
As the Regional Director, with Board approval, has
previously overruled the challenge to the ballot of Viola
Vineyard, and as I have overruled the challenges to the
ballots of Annie Ruth Cail and Jane Ella Reed, it shall be
recommended that these determinative ballots be opened
and counted ^ by the Regional Director and that a revised,
tally be- furnished the parties. I shall further recommend
that if the -revised tally indicates that the Union has been
designated by a majority of the valid ballots cast, the
Regional Director shall issue a certification, of representa-
tive.
B. The Objections
The objections to the election are based entirely upon
matters included in the complaint and alleged to be unfair
23 At the hearing the complaint was amended to add an allegation that in such capacity At the hearing, I struck this allegation on grounds of legal
the Donaldson termination was violative of Sec. 8(a)(4). That allegation was insufficiency. While I reaffirm that ruling, for the specific reasons stated on
based on the theory that Respondent discharged Donaldson because she the record, it is noted that, in view of my finding that Donaldson was
had acted as an observer in a Board -conducted election, and upon the legal discharged for cause, it is unnecessary to reach the legal issue presented by
argument that Sec. 8 (a)(4) is broad enough to protect employees who serve the 8(a)(4) allegation.
SHAW INDUSTRIES
labor practices. I have heretofore found that during the
critical election, period between the filing of the petition
and the conduct of the election, the Employer violated
Section 8(a)(1) of the Act by coercive interrogation, threats
of reprisals, the withholding of increased base rates, and
the maintenance of an unlawfully, broad no distribution-no
solicitation rule, and violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging Annie Ruth Cail and
Jane Ella Reed. I find that the, Employer, by engaging in
the conduct described above, interfered with the election
and, accordingly, I shall recommend, in the event the
revised tally of ballots does not disclose that the Union was
designated by a majority of the valid ballots cast, that the
election conducted on July 3, 1974, be set aside and that a
rerun election be directed.
CONCLUSIONS OF LAW
1. The Employer-Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Charging Party-Petitioner is a labor organiza-
tion within the meaning of the Section 2(5) of the Act.
3. By discharging and refusing to reinstate Annie Ruth
Cail and Jane Ella Reed in order to discourage member-
ship in the Union, Respondent has violated Section 8(a)(3)
of the Act.
4. By the foregoing conduct, by coercively interrogat-
ing employees concerning union activities, by threatening
employees that the plant would be closed if they selected
the Union, by withholding increased base rates because of
union activity, and by maintaining an unlawfully broad no
solicitation-no distribution rule, Respondent has interfered
with, restrained, and coerced employees in the exercise of
their rights guaranteed by Section 7 of the act, in violation
of Section 8(a)(1) of the,Act.
5. The aforesaid unfair labor practices are unfair labor
practices effecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. By the conduct described in paragraphs 3 and 4
above, insofar as said conduct occurred during the critical
period between the filing of the petition and the election,
Respondent-Employer has engaged in preelection miscon-
duct interfering with the freedom of choice of its
employees.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily dis-
charged and refused to reinstate Annie Ruth Cail and Jane
Ella Reed in violation of Section 8(a)(3) and (1) of the Act,
I shall recommend that Respondent be ordered to offer
them reinstatement and make them whole for any loss of
pay resulting from their discharge by payment to them of a
sum of money equal to the amount they normally would
24 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.
1209
have earned as wages from the date of their discharge to
the date of reinstatement if offered, less net earnings during
that period. Backpay shall be computed on a quarterly
basis in the manner proscribed in P. W Woohvorth
Company, 90 NLRB 289 (1950), and shall include interest
at 6 percent as provided in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
Having found that Respondent violated Section 8(a)(1)
by withholding base rate increases which, but for the union
activity then in progress, would have been made effective
on May 13, 1974, 1 shall recommend that employees
adversely affected thereby be made whole by payment of a
sum representing the difference between what they would
have earned but for the Respondent's unlawful action,
together with 6 percent interest. Hendel Manufacturing
Company, Incorporated, 197 NLRB 1093, 1094 (1972).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 24
Respondent, Shaw Industries, Division of Crystal
Springs Shirt Corporation, Shaw, Mississippi, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise
discriminating against employees because they joined or
supported a labor organization or because they are
suspected of engaging in such protected activity.
(b) Interrogating employees concerning their union
activities.
(c) Threatening employees with a loss of jobs or closing
of the plant if the employees select a union to represent
them.
(d) Maintaining a rule which precludes employees from
soliciting on behalf of the Union during their nonworking
time.
(e) Maintaining a rule which precludes employees from
distributing literature on behalf of the Union in nonwork-
ing areas of the plant, during nonworking time.
(f) Withholding increased base rates or any other
benefits because employees have engaged in activity
protected by Section 7 of the Act.
(g) 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
effectuate the policies of the Act:
(a) Offer to Annie Ruth Cail and Jane Ella Reed
immediate and full reinstatement to their former jobs or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and snake them whole for their loss of
earnings in the manner set forth in the section of this
Decision entitled "The Remedy."
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.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole employees adversely affected by the
deferred grant of new base rates in the manner set forth in
the section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
(d) Post at its Shaw, Mississippi plants copies, of the
attached notice marked "Appendix." 25 Copies of the
notices , on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and 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 ensure that said notice is not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that Case 26-RC-4785 be
remanded to the Regional Director for the opening of the
ballots of Viola Vineyard, Annie Ruth Cail, and Jane Ella
Reed.' Thereafter, the Regional Director shall issue a
revised tally of ballots to the parties and, if said tally
indicates that the Petitioning Union was designated by a
majority, he shall issue a Certification of Representative.
Should the revised tally of ballots fail to disclose that the
Petitioning Union has been designated by a majority, the
election conducted on July 3, 1974, shall be set aside and
the Regional Director for Region 26 shall conduct a rerun
election at such time as he deems the circumstances permit
afree choice on the issue of representation.
25 In the event the Board's Order is enforced by a Judgment of the to a Judgment of the United States Court of Appeals Enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted Pursuant