Jimmy-Richard Co. Inc.

National Labor Relations Board - Board Decisions

May 22, 1974

210 N.L.R.B. 802 (N.L.R.B. 1974)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jimmy-Richard Co. Inc . and Amalgamated Clothing
Workers of America, AFL-CIO. Cases
10-CA-10376 and 10-RC-9582
May 22, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On February 11, 1974, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, the Respondent and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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, findings,
and conclusions 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 the Respondent, Jimmy-Richard
Co. Inc., Hawkinsville, Georgia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that the petition in Case
10-RC-9582 be, and it hereby is, dismissed.
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Administrative Law Judge: The
hearing in these consolidated cases was held before me in
Hawkinsville, Georgia, on December 4, 5, and 6, 1973.
Case 10-RC-9582 began with a Petition for Certification
of Representatives filed by Amalgamated Clothing Work-
ers of America, AFL-CIO, herein Union or Petitioner, on
April 16, 1973. Pursuant to a Stipulation for Certification
Upon Consent Election executed by the parties and
approved by the Regional Director for Region 10 of the
National Labor Relations Board on May 9, 1973, an
election by secret ballot was conducted on June 1, 1973.
The Union lost the election by a vote of 50 to 42, and, on
June 8, 1973, filed objections to the election. The Regional
Director investigated the objections and issued a report on
objections in which he concluded that substantial and
material issues of fact had been raised which could best be
resolved by a hearing. On September 17, 1973, the Board
adopted the Regional Director's recommendations as
contained in his report.
The unfair labor practice case began with a charge filed
by the Union on September 11, 1973, against Jimmy-
Richard Co. Inc., herein Respondent or Employer, on
which the Regional Director issued a complaint on
November 14, 1973, alleging that Respondent had violated
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended, herein called the Act. Since some of the
issues raised by the objections parallel those raised by the
allegations of the complaint , the Regional Director
consolidated the cases for hearing.
All parties were represented at the hearing . Subsequent
to the hearing , General Counsel and Respondent filed
briefs which have been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Georgia corporation with a place of
business located in Hawkinsville , Georgia , where it is
engaged in the manufacture of men's and boys' garments.
During the calendar year preceding the issuance of the
complaint, Respondent sold and shipped from its Haw-
kinsville plant finished products valued in excess of
$50,000 directly to customers located outside the State of
Georgia.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Independent Violation of Section 8(a)(1) of the
Act
1. Solicitation of withdrawals from the Union
The Union has made two prior attempts to organize
Respondent's employees. An election held in 1968 was set
aside by agreement of the parties after the Union filed
objections to its conduct. The Union also lost the 1969
election, but it filed no objections. In late 1972 and early
1973, the Union again solicited and obtained employee
signatures to cards designating the Union as the signer's
bargaining representative, and the complaint alleges that
Respondent, "on or about May 15, 1973," in violation of
the Act, "solicited individual employees to sign letters
withdrawing their support of the Union."
At the hearing, at the request of Respondent's counsel,
General Counsel produced 12 letters signed by employees
of Respondent stating that the signer had signed a union
card and wanted it returned. The language of the letters is
identical. The letters had been received by the Union and
had been turned over to the Board during the investigation
of these cases.
210 NLRB No. 134
JIMMY-RICHARD CO.
Durwood Dominy, Respondent's plant manager, testi-
fied that the letters had been typed by a secretary in
Respondent's office, but he also stated that in each case the
employee came to him of her own accord, or sent word to
him through another employee, and told him that she had
signed a union card, but had changed her mind, wanted to
get out of the Union, and needed advice on how to do it.
Dominy testified that he advised each employee that he
had a form which the employee could sign and deliver to
the person who had obtained the employee's signature to a
union card. He said that the employees asked that he have
the letters prepared, and he did. He denied asking any
employee in these cases whether they had signed union
cards. He had no recollection of having copies made of the
letters , but he said he had searched for copies and found
none in the Company's files.
Employee Austin signed a union card on April 6, 1973.
She testified that she became "nervous" after she signed
the card and wanted to get it back. Having heard other
employees talking about a letter which they had signed, she
spoke to Dominy and asked him about the letter. She also
testified that Dominy asked her if she had signed a union
card and agreed to send a letter for her signature when she
said she had. He never did.
Austin was somewhat confused in her testimony. She
indicated at one point that Dominy raised the subject of
signing a letter to the Union when he appeared at her
station but at another she said she did. It is clear from the
whole of her testimony that she solicited Dominy's
assistance . I also find that Dominy did not ask her if she
had signed a union card and in any case, if he did, it would
have been a natural and innocent reaction to her inquiry
about signing a letter to the Union.
Employee Snell signed a union card on February 6, 1973.
She testified that Dominy, without being invited by her,
twice came to her machine and asked her if she wanted to
sign a paper withdrawing from the Union. She also said
that he asked her if she had signed a union card before he
presented her with a form letter to the Union, and she
added that she kept the letter without signing it and did not
show it to anyone. There is nothing in the affidavit Snell
gave an investigator for the Board about Dominy asking
her to sign a letter. I credit Dominy's testimony that he
approached employees only if they had indicated to him
directly or through another employee that they wanted to
have their union cards returned to them. I find further that
if Dominy did talk with Snell in this regard it was in the
circumstances he described.'
Whether an employer violates Section 8(a)(1) of the Act
by involving itself in employee revocations of their union
authorizations depends upon the extent of the employer's
participation in the process. Where, as here, employees
initiate the requests to withdraw and the employer returns
i Some corroboration of Dommy's testimony about the way he operated
in this area is found in the testimony of some of General Counsel's
witnesses . Gail Lemmon testified that she signed a letter withdrawing her
union card after she asked an employee to tell Dominy that she wanted to
see him. She asked Dominy to "explain the union" to her when he appeared,
she said, and when he asked her if she wanted to get out of it, she replied
that she did because she did not understand it Juanita Dellemar testified
that an employee told her that if she did not want the Union she could sign
a paper and get her card back Someone told Dominy that she wanted to
talk with him, and when he came to her machine she told him that she did
803
the letters to the employees, so that they can deliver them
to the Union, and does not keep copies for its files, the fact
that the resignations were prepared or typed by the
employer does not make its actions illegal . I find that
Respondent did not interfere with, restrain, or coerce
employees in the exercise of their rights under the Act by
Dominy's actions in connection with the withdrawal
requests.2
2. Interrogation
The complaint alleges that Respondent, by Plant
Manager Dominy, illegally interrogated employees about
their union membership and activities, but the only
evidence in the record to support his allegation is found in
the testimony of employees who testified about Dominy's
help in preparing their union withdrawal letters. I have
credited Dominy's testimony that he asked no employee
whether she had signed a union card when he talked with
her about getting her card back from the Union, and I
have also indicated earlier that, even if he did, it had to be
in response to the employee's request for assistance in
having the card returned to her. In such circumstances, the
inquiry, if made, could not have interfered with the
employee's Section 7 rights. I find that Respondent did not
violate the Act in this respect, as alleged.
3. Threats of reprisal
The complaint alleges that on various dates in May 1973,
Respondent , by Dominy, threatened employees that "if the
Union were designated as the employees ' collective
bargaining representative and requested too much money,
Respondent would close the plant ." The questions here are
whether these statements were made and, if so, whether
they constituted a violation of the Act.
Fifteen employees testified that during a period of
approximately 2 weeks prior to the June 1 election,
Dominy made statements to them about Respondent
closing down and leaving Hawkinsville if the Union won
the election . Dominy conceded that he spoke with
approximately 60 employees before the election and told
them that Respondent would close the plant under certain
conditions , but there is a dispute about the precise words
he used in describing those conditions to the employees.
Some of the employee witnesses testified that Dominy
told them that the plant would close if the Union won the
election and "demanded too much ." For example, Eliza-
beth Brown testified that Dominy told her almost exactly
that, and she said she told Dominy that she did not think
that the Union would demand "too much ." She denied
that Dominy had included the words "could not afford" in
his remarks about the Union's demands. Employees
not "understand the union " She said she asked him if he could not "give
[me] some papers to sign" in order to get her union card back Dominy
replied that he could, if she desired it She said she did, and he brought her
the letter and left it with her Lois Taylor identified her letter of withdrawal,
but in no way indicated that Dominy had solicited it
2 Continental Nut Co , 195 NLRB 158 ; Kay Electronics, Inc, 167 NLRB
1104, cf Hatteras Yachts, AMF Incorporated, 207 NLRB No 156, Jai Lai
Cafe, Inc, 198 NLRB No 108, Cumberland Shoe Company, 160 NLRB
1256, 1259
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams, Asbury, Austin, and Yansom testified to the
same effect as Brown. Respondent would close and move
back to St. Louis if the Union won the election and
"demanded too much money," and they denied that
Dominy had included the signing of a union contract that
Respondent could not afford as a factor in Respondent's
conditional plans to move.
Most of the employees who testified, however, agreed
that Dominy stated that the plant would be closed if
Respondent could not "meet" or "afford" the Union's
demands. Anderson, for example, said he told her that if
the Union won and made "unnecessary" demands which
the Company "couldn't meet," then it would close down.
Employees Bray, Lemmon, Lindsey, Owens, Twiggs, and
Carter also remembered Dominy describing the Union's
demands that would cause a plant closing as demands that
Respondent could not "meet" or "afford." None of the
employees recalled Dominy saying anything about Re-
spondent being forced to sign a contract when he spoke to
them about what Respondent would do if the Union made
demands which Respondent could not "afford."3
Dominy testified that in talking to employees before the
election he took pains to use the same language with each
person. He said he told them that "if the Union were voted
in and we were forced to sign a contract that we could not
meet, caused us to have excessive costs, that we would have
to close down." He said he had discussed this subject with
Respondent's president, Lieberman, and with counsel
before he spoke with employees, and that he decided to use
the words "forced to sign a contract" as one of the
conditions which would cause Respondent to close its
plant because counsel had advised that this was a legally
permissible choice of expressions.4
I do not credit Dominy's testimony that he carefully used
the same language in talking to each of the 60 employees
he spoke with and included in his remarks the words
"forced to sign a contract." First of all, I was impressed by
the testimony of those employee witnesses who denied on
cross-examination that Dominy had mentioned signing a
contract when he talked with them, although they readily
conceded that he used, or could have used, the words
"meet" or "afford." On the other hand, Dominy's
explanation that he chose that language as a possible legal
alternative on the advice of counsel was not at all
impressive, and it seems extremely doubtful to me that
Respondent would take a narrower, more conservative and
legalistic approach in its individual contacts with employ-
ees during its preelection campaign than it did in its
prepared speeches and letters. As indicated above, there is
nothing in President Lieberman's speech to em_ loyees
before the election about union contracts being forced on
Respondent, thereby causing it to close down, although
3 In answer to a proper but leading question on cross-examination, Leila
Owens answered "yes" to the proposition that Dominy said if the Company
"had to enter a contract in which there were expenses that they could not
afford that they'd have to leave and you might lose your machine " On
redirect she repeated her earlier testimony, and she added that she did not
recall Dominy saying anything about a contract. I recall the witness well,
and I find that she was confused when she replied to Respondent's counsel's
question and that she actually had no recollection of "contract" being
mentioned by Dommy
4 Lieberman did not testify In a speech he gave to employees before the
election he stated that "If the Union should come into our plant, and force
"unreasonable demands" and harmful strikes and unpleas-
ant picket lines are skillfully woven into the speech.
Dominy also wrote a letter to the employees before the
election which, like Lieberman's text, advises them that the
plant will close "if the union comes in and forces upon us
expenses that we cannot afford" but which contains
nothing about signing a contract.
Supervisor Gillis also talked to employees about the
Union's efforts to organize the employees and about the
coming election. She said that she told "8 or 9" employees
that if the Union were to win the election and "demanded
more than the company could meet then it might have to
close." It is extremely unlikely that she would have
assumed the responsibility for taking a course inconsistent
with Dominy's by failing to use the words "forced to sign a
contract," which Dominy said he was so careful to use with
each employee, and this is another reason for not accepting
Dominy's version of what he said.
As indicated, I find that Dominy did not carefully stay
with a prepared script in his approaches to employees. I
find further that in some cases he said the plant would
close if the Union won the election and made "unreasona-
ble demands," in others that it would if it demanded "too
much money" and in other cases he added language about
the company's ability to "afford" or "meet" the Union's
demands. In no case did he mention being "forced to sign
a contract." 5
The question of the property of Dominy's statements to
employees about plant closure must be decided in the light
of the principles stated in N.L.R.B. v. Gissel Packing Co.,
395 U.S. 575 (1969). There the Court established certain
standards for determining whether an employer's state-
ments about the effects of unionization are permissible.
The Court stated that any evaluation of employer's
statements "must take into account the economic depend-
ence of the employees on their employers, and the
necessary tendency of the former, because of that
relationship, to pick up intended implications of the latter
that might be more readily dismissed by a more disinterest-
ed ear."6 Accordingly, the Court continued:
. .. an employer is free to communicate to employ-
ees any of his general views about unionization or any
of his specific views about a particular union so long as
the communications do not contain a `threat of reprisal
or promise of benefit.' He may even make a prediction
as to the precise effects he believes unionization will
have on his company. In such a case, however, the
prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his con-
trol or to convey a management decision already
upon us expenses which we cannot afford and that will destroy our ability to
be competitive, we obviously will have no choice but to go out of business
and leave Hawkmsville " At another point in the text from which he read,
Lieberman repeated "if the Union forces us to incur costs that we cannot
afford, we would have no choice but to close down "
5 It is not even claimed that he or any other company representative
indicated in their remarks, letters, or speeches to employees that Respon-
dent intended to bargain with the Union in good faith if it did win the
election.
6 NLRB v Gissel, supra, 395 U S at616
JIMMY-RICHARD CO. 805
arrived at to close the plant in case of unionization
[citation omitted]. If there is any implication that an
employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and
coercion and as such without the protection of the First
Amendment.7
demands for conditions that the Union has not been able
to obtain from employers under contract with the
Union-was a misrepresentation designed to deceive the
employees, not a carefully phrased prediction based on
objective facts of how unionization would result in plant
closure.
I conclude that Respondent, by Dominy' s statements
about closing the plant, violated Section 8(a)(1) of the
Act.9
Judged by these standards, Dominy's statements to
employees that Respondent would close the plant if the
Union won the election and made "unreasonable" de-
mands or demands that Respondent could not "afford"
were, in my opinion, unlawful. First, there was no support
for Respondent's "basic assumption that the Union, which
had not yet presented any demands ..." would present
demands that were unreasonable or which Respondent
could not meet.8 Indeed, Respondent presented no facts in
regard to what kind of a wage or other demand it
considered reasonable or as to what economic concessions
it could afford to make. We do not know whether
Respondent's business is extremely profitable or in poor
financial condition. Respondent clearly created the impres-
sion that it would make a judgment unilaterally on the
"reasonableness" of the Union's demands on the basis of
undisclosed criteria, and, having so decided, closing would
inevitably follow.
Second, the statements did not convey a management
decision already arrived at to close the plant in the event of
unionization, but contained threats to make that decision
after the employees had voted in the election and even
before collective bargaining ever got started.
Third, the statements are not careful and honest
predictions based on known facts, for they are inconsistent
with other statements made by Respondent in the
campaign. In his letter to employees, Dominy claimed that
the benefits which Respondent was supplying at the time
were "equal to or superior to the plants in our area, union
or non-union." Lieberman, in his speech to employees
before the election, stated that Respondent provided such
cost items as wages, insurance, vacations, and holidays, "as
good as, and, in many cases, superior to" comparable
companies, union and nonunion. Supervisor Gillis testified
that she told employees that she thought the Union would
not do them any good because they "were getting as much
or more than the (unionized Opelika) plant down the
street." Respondent's inconsistency in telling employees at
one time and place that they were as well off or better off
than employees in union plants, and at other times and
places, that the Union will make "unreasonable" demands
on Respondent which it cannot afford-that is to say,
7 Id at 618
8 Ibid
9 N L R B v Gissel, supra, Marathon LeTourneau Company, 208 NLRB
No 39, James Hoomain d/b/a Chicago Master Mattress and Furniture
Company, 196 NLRB 579. Texas Industries Inc, v N L R B, 336 F.2d 128
(C A 5, 1964) and cases cited therein, relied upon by Respondent, were
decided before Gissel, but in any case, for the reasons already stated, I do
not consider Dommy's statements in this case to fall within the area found
protected by the court in Texas Industries See for example, N L R B v.
Birdsall Construction Company, 487 F 2d 288 (C A 5, 1973). For another
court of appeals case decided since Gissel, see N L R B v Lenkurt Electric
4. Promises of benefits
Prior to July 1973, employees with 6 months' service
received a I-week vacation with pay in the summer and 2
weeks at Christmas time. Memorial Day has never been a
paid holiday. The complaint alleges that Supervisor Gillis,
in May 1973, promised employees a 2-week summer
vacation and a paid Memorial Day holiday if the Union
were not designated in the coming Board election.
Eight employees testified on this subject as follows:
Stanley: Just before the election Gillis, first asking her if
she had "heard the good news," told her that the
employees would get 2 weeks' vacation in July and 1 week
in December.
Hinson: Shortly before the election, Gillis told her that
she had been directed to tell her that if the Union were
defeated, the employees would receive a 2-week vacation
and Memorial Day as a holiday.
Floyd: She had two conversations with Gillis about it. In
the first, Gillis told her about the paid vacation and extra
holiday if the Union were voted down. Later, other
employees asked Gillis about the matter, but Gillis did not
answer them. Floyd then called Gillis to her machine and
asked her to repeat what she had told her earlier, which
Gillis did. Floyd asked Gillis why she had not given the
same information to the other employees. Gillis replied
that Respondent's attorney had advised her not to tell
everyone but only those she thought were against the
Union.
Snell: Although not alleged in the complaint, Snell
testified that Dominy told her in April 1973 that he had an
understanding with President Lieberman that the employ-
ees would get an extra paid holiday and 2 weeks' vacation
if the Union lost the election.
Austin: A week or so before the election, Gillis asked her
if she had heard the "good news"; that is, if the Union lost
the election, the employees would get a 2-week vacation in
July and a paid Memorial Day holiday the following year.
Peavey: She had heard talk in the department previously
about it, but 2 weeks before the election Gillis mentioned
"good news," and then stated that if the Union did not
come in the employees would get 2 weeks' vacation in July.
Co., 438 F 2d 1102, 1106 (C A 9, 1971). There the court stated that it read
Gissel as establishing two standards by which an employer's speech may be
objectionable. It explained that an employer may not indicate in his
predictions that he will, of his own volition and for his own reasons, inflict
adverse consequences upon his employees if they choose the Union, and also
he may not, in the absence of a factual basis thereof, predict adverse
consequences arising from sources outside his volition and control.
Dominy's statements were objectionable under both standards, but more
clearly under the second Cf. N L. R.B. v. River Togs, Inc., 382 F.2d 198
(C A. 2, 1967)
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis: Gillis, on the day before the election, told her that
she had "good news" because she had been called to the
office and informed that the employees would get an extra
paid holiday on Memorial Day and 2 weeks' vacation in
July if the Union lost the election.
Lindsey: When Gillis asked her if she had heard the
"good news," she did not reply because she had already
heard other employees talking about getting a 2-week
vacation if the Union was not voted in.
Dominy testified that because of pressure from Lieber-
man, who complained to him about the need to have
sample garments ready in late December or early January,
he and Lieberman agreed, in January 1973, to shift the 2-
week Christmas vacation to July and give the employees
only I week off at Christmas time. He said he told two
supervisors about this decision but did not announce it to
employees before June 15 because some employees would
suffer because of the decision. He explained that since 6
months' employment is necessary to qualify for vacation,
approximately 25 employees, who had not that much
service in July, would get no vacation then, but would have
gotten 2 weeks instead of 1 in December if they were still
employed and if the policy had not been changed. He also
denied that he had told anyone that they would receive a 2-
week vacation in July or get Memorial Day as a paid
holiday if the Union were defeated in the election.
Gillis testified that she learned of the change in
Respondent's vacation policy from Dominy in early
March. She said she did not tell the employees about it
until about 2 weeks before the election when she spoke to a
group of 8 to 10 employees who had happened to come
together and who asked her about the Company's vacation
plans. When they did, she said she explained the change in
policy and the basis for it, describing the change as "good
news" for those who thought it was good news. She said
that some employees liked the change and others did not.
For herself, she was indifferent about the change, and she
said she had told Dormny that most of the employees
would be against it. Like Dommy, she 1so said a
substantial number would receive no vacation in July
because they had not been employed long enough. She
denied that she had told any employee that if the Union
lost the election there would be an added paid holiday.
I credit Dominy's testimony that the change in vacation
scheduling was decided on no later than January 1973, and
Gillis' testimony that she and another supervisor learned of
it in early March 1973. The testimony is uncontradicted
and there is no rational reason to discredit it. I also find on
the basis of their testimony that the new polir; was not
much of a benefit to employees, and that many employees,
who would have gotten 2 weeks' vacation in December
under the old policy, got no vacation in July 1973 and
only 1 week in December 1973 because of their hiring
dates.
On the other hand, I credit the testimony of the
employees that Gillis approached them individually and
told them about the vacation change. Although I think that
Snell was probably confusing her conversations with
Dominy with one she had with Gillis, I was impressed by
the testimony of the other employee witnesses, particularly
Hinson's and Floyd's. Floyd had two conversations with
Gillis, and she testified logically and with apparent
sincerity. Although Gillis testified generally that she had
no individual conversations with employees in this area,
she did not specifically deny Floyd's testimony about why
she (Gillis) had told only selected employees about the
rescheduling of vacations. The words "good news" also
appear in the testimony of most of the employee witnesses,
and Gillis admitted she used them. This is some indication
that their testimony was not contrived. I credit them, and I
find that Gillis, shortly before the election, informed
employees that she had "good news" for them because she
had been told to tell them that they would get 2 weeks off
in July with pay. I also find, contrary to Gillis' denial, and
on the basis of the credited testimony of the employees,
that when Gillis spread the word about vacation, she added
a promise about Memorial Day becoming another paid
holiday in 1974 if the Union did not win the election.
Since I have found that Respondent had decided to
change its vacation policy before the Union filed for an
election and because a substantial number of employees
would lose because of the change, no one can be certain
why Respondent announced its decision to employees just
before the election. The logic of the situation, however, is
that information about the change was getting to employ-
ees in the plant and that Respondent decided to use it to its
advantage in its preelection propaganda, describing it as
"good news" for the benefit of those who might prefer to
be off in July, rather than in December, and adding a paid
holiday to the package to take the sting out of the
announcement for those who were indifferent to it or lost
by it.
I find that by indicating to employees that they would
benefit from Respondent's change in policy and by
promising them an additional paid holiday, all on
condition that they vote against the Union in the election,
Respondent violated Section 8(a)(1) of the Act.
B. The Refusal To Bargain
1. The appropriate unit
The complaint alleges, Respondent admits, and I find
that all production and maintenance employees of Respon-
dent at its Hawkinsville, Georgia, plant, but excluding
office clerical employees, professional employees, technical
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
2. The demand and refusal
By letter dated April 12, 1973, the Union advised
Respondent that it represented a majority of its employees
in the unit and asked to meet to discuss a contract covering
them. On April 16, 1973, Respondent wrote the Union
stating that it refused to recognize it as bargaining agent
for the employees because it doubted that the Union
represented a majority of employees. As indicated earlier,
on April 16, 1973, the Union filed a petition for an election
with the Board.
JIMMY-RICHARD CO.
3. The Union's majority status
There were 94 persons employed in the appropriate unit
who appear on the payroll covering the period April 12 to
16. All 94 also appear on the payroll for the week ending
April 27, 1973, which was used in the June 1, 1973,
election.
During the course of the hearing, 61 signed authorization
cards were admitted into evidence.10 At the close of the
hearing it was stipulated that 2 of the 61 were for persons
who were not on the Company's payroll at any time
material to this proceeding. We start out with 59 designa-
tions, therefore, but Respondent questions the validity of
the cards on various grounds.
A certain number of employees authenticated their own
authorization cards, but the majority of the cards were
authenticated by a union representative or another
employee. These persons testified credibly that they either
saw the employee sign the card or gave it to the employee
and received it back already executed. Cards authenticated
on such a basis are valid.11
Respondent also claims that many of the cards were
obtained on the basis of a misrepresentation that if
employees signed them they would be given "free insur-
ance" and 2 weeks' vacation in the summer. I find no merit
in this contention. It is clear from the testimony of
Elizabeth Brown that, when she was talking about "free
insurance" in soliciting employees to sign a union
authorization card, she was not promising them an
immediate gift but was trying to explain what would
happen if the plant were organized and a contract were
signed. She said, for example, that she told employees that
other union plants had such benefits. Employee Yansom
testified that union representative Vanooyen told her that
"free insurance" would follow a union contract. It appears
that Respondent provides employees with free health and
hospitalization insurance for themselves but not for their
spouses or other dependents. What the Union was
engaging in, it is clear from the context in which the
remarks were made, was commonplace election propagan-
da long found by the Board and courts not to be
objectionable. 12
Respondent also contends that the employees who
signed cards were mislead because the back of the card
"indicates with definiteness" that the Union already has a
collective-bargaining contract with Respondent. On the
reverse of the card is a checkoff authorization which
authorizes dues deductions, in accord with existing law,
"for the period of one year until the termination of the
collective-bargaining agreement between my Employer
and the Union, whichever occurs sooner...." The Union
has been trying to organize Respondent's employees for 5
years or more, and it is more than difficult to believe that
any one would be mislead by such language into believing
that, somehow or other, contrary to both the Union's and
the Employer's preelection propaganda, a collective-bar-
gaining contract existed between the parties. This attack on
the cards is without foundation.
10 The cards are so-called single purpose cards , clearly authorizing the
Union to act as the signer 's collective -bargaining representative
11 N L R.B. v. Economy Food Center, 333 F 2d 468, 471 (C.A. 7, 1964),
N L R.B v. Somerset Shoe Co., 1 l 1 F 2d 681, 687 (C. A. 1); Howell Chevrolet,
807
Of the 59 card signers, 12 revoked their authorizations by
signing letters, which found their way into the Union's
files, requesting that their cards be returned to them
promptly. I have found above that Respondent did not
improperly assist the employees in revoking their authori-
zations, and I reject, therefore, General Counsel's conten-
tion that the revocations are invalid on that ground.
General Counsel also argues that since only one of the
withdrawal letters is dated Respondent has failed to
establish that the purported withdrawals were executed
and delivered prior to the demand date. Although only a
few of the persons who signed such letters testified, I find
sufficient probative evidence in the circumstances dis-
closed in the record to compel the finding that each
document was executed by the employee in the unit whose
name it bears and delivered to the Union prior to the date
on which Respondent received the Union's demand for
bargaining.
The names on the letters are the same as those on union
cards and on the payrolls in evidence. Union Organizer
Vanooyen testified that eight of the letters were handed to
her by the employee who signed them, and she said she
"imagined" that McGill, another organizer, received the
others. A ninth signer of a withdrawal, Lois Taylor,
identified her signature on the revocation. No one claims
that the signatures on the letters are not authentic or that
the signers were not employed by Respondent. Even if they
did, the circumstances described would cause me to reject
that contention.
The withdrawals were signed before April 16 because
Vanooyen testified that it was before April, probably in
"February or March," that she received them. I also note
that none of the 12 authorization cards signed by
employees who also signed withdrawal letters contains a
Board date-stamp on its back as do all the other cards
presented to the Board as a showing of interest in support
of the Union's petition for an election. The cards are date-
stamped April 16. It is a fair inference from these facts that
the Union had in its possessiun all 12 withdrawals before
April 16 and did not present the cards to the Board for that
reason.
For the reasons stated, and particularly in the absence of
any evidence to the contrary, I find that employees
Simmons, Lemmon, Dellemar, Lois Taylor, Mildred
Stanley, Blackshear, Wanda Taylor, Emily Harris, Flem-
ming, Beatrice Taylor, Liza Pitts, and Nadine Moss
executed and delivered revocations of their union authori-
zation before Respondent received the Union's demand.
Twelve revocations, plus two signers not on the appropri-
ate payroll, reduces the valid cards to 47, not a majority,
but Lois Taylor signed another authorization card on April
24, 1973. If her card and the cards of employees Jones,
dated 4-14-73, Harris, dated 4-26-73, Davis, dated
5-8-73, and Lindsey, dated 5-8-73, are valid, on the theory
that the Union's demand was a continuing one, then the
Union had majority of designations prior to the middle of
May.
204 F.2d 79, 85-86 (C.A 9), Don the Beachcomber, 163 NLRB 275.
12 N.L R B v. Gilmore Industries, Inc, 341 F.2d 240 (C.A 6, 1965); Olson
Rug Company v. N L R.B., 260 F.2d 255, 267 (C A 7, 1958), Wilson Athletic
Goods Mfg Co. v. N.L.R B, 164 F 2d 637,639-W (C.A. 7).
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When a demand for sole bargaining is or is not a
"continuing" one, is not always clear from the cases.13 It
seems to me that in a situation such as we have in this case
a realistic legal appraisal of the position of the parties after
the Union's demand for bargaining was refused and at the
time they executed an agreement for a consent election is
that the Union had temporarily suspended its request for
immediate recognition in order to resolve the question
quickly and peaceably within the framework of the Act.
Implicit in the agreement, however, was a condition that
neither party thereafter commit serious unfair labor
practices undermining to the other and precluding the
holding of a fair election. If an employer does act contrary
to the purpose and design of the agreement by engaging in
serious unfair labor practices, then it can be said with
reason that the Union's original claim is revived and, in
that sense, can be said to continue.
No unfair labor practices were committed prior to the
middle of May 1973, but after the agreement for consent
election was approved on May 9, Respondent commenced
to make threats that the plant would close if the Union
won the election, and it also promised employees benefits
if the Union did not. In those circumstances another
demand for recognition would be futile, and because the
condition on which the agreement was predicated failed,
the Union's demand was legally reactivated.
I find that Lois Taylor's card and the cards of the four
other employees who signed after the Union's first demand
for recognition and prior to the commencement of the
employer's unfair labor practices may be counted in
computing the total number of valid cards. This results in a
total of 48 valid cards, and I find, on that basis, that the
Union represented a majority of employees in the unit on
May 8, 1973.14
4. The appropriateness of a bargaining order
under the circumstances of this case
In Gissel, supra, the Court sustained the Board's remedial
authority to issue a bargaining order, in cases like this one,
where an employer rejects a valid card majority and
commits unfair labor practices "that interfere with the
election process and tend to preclude the holding of a fair
election." 15 The Court held that a bargaining order would
be appropriate in either of two situations: first, in
"exceptional" cases where there was no 8(a)(5) violation
but the unfair labor practices were so "outrageous" and
"pervasive" that "their coercive effects cannot be eliminat-
ed by the application of traditional remedies," 16 and
second, "in less extraordinary cases marked Ly less
pervasive practices which nonetheless still have the
13 See Scobell Chemical Company, Inc v N.L R h, 267 F.2d 922 (C A. 2,
1959); Essex Wire Corporation, 188 NLRB 397, 412, Hardy-Herpolsheimer
Division of Allied Stores of Michigan, Inc, 173 NLRB 1109, 1121-22.
14 Respondent placed into evidence authentic handwriting specimens of
employees Blackshear and Hursey in order to establish that they had not
actually signed the union authorizations in evidence. Although I have found
that Blackshear revoked her card, which makes it unnecessary to meet this
contention, the employees who testified about Blackshear 's execution of a
card appeared to me to be telling the truth as they remembered it, and,
although Blackshear appears to have difficulty in signing her name, it is not
clear enough to me, a nonexpert, that the signature on the union card is not
hers . In Hursey's case, I have no question on all The signatures in the
employer's files give me no reason to doubt the testimony of employee
te,idency to undermine majority strength and impede the
election processes."
Respondent contends that no bargaining order should
is',ue here because its election campaign was "mild" and
was not one that could prevent a fair election. I have
found, however, that Respondent made statements to
many employees just prior to the election threatening to
close the plant if the Union won the election, and it also
promised them benefits if it did not.17 In his dissent in
General Stencils, Inc.,18 Board Chairman Miller, in discuss-
ing the remedy problem in cases where threats of reprisal
had been made, stated that "a threat of loss of employment
for some or all unit employees [is] of the gravest
consequences. The threat of plant closing has long been
recognized as a uniquely destructive tool." He added that
"the threat of plant closure must be regarded, for Gissel
purposes, as more coercive than any other threat, and more
likely to have a lasting impact on an employee group." In
my opinion, the Board would unanimously hold that the
threats to close the plant in the instant case, with or
without the promise of benefits, would have such an
impact on employees that the "possibility of erasing" its
effects and "of ensuring a fair election (or a fair rerun) by
the use of traditional remedies, though present, is slight
and that employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order...." 19 Accordingly, I will so recommend.
5. Unilateral change in conditions of employment
On or about June 15, 1973, Respondent, unilaterally and
without prior notice to, or consultation with, the Union,
announced and granted to all eligible employees a 2-week
paid vacation from June 29, 1973, through July 16, 1973.
Since Respondent was under a duty to bargain with the
Union as the statutory representative of employees in the
unit at that time, Respondent's actions in this regard
violated Section 8(a)(1) and (5) of the Act.
IV. THE REPRESENTATION CASE
Having found that Respondent engaged in serious
violations of Section 8(a)(1) of the Act during the last 2
weeks in May 1973, by threatening employees with
economic reprisals if the Union won the election and by
promising them benefits if it did not, it follows that such
conduct interfered with the employees' free choice of a
collective-bargaining representative and that the results of
the election must be set aside on the basis of the Union's
objections.
In view of my recommendation, hereinafter set forth,
Collins, who obtained the authorization card from her.
15 395 U.S 575, 594
16 395 U.S. at 613-614.
17 In Ohn Conductors, 185 NLRB 467, relied on by Respondent, where
the Board did not issue a bargaining order, there was no threat to close the
plant
is 195 NLRB 1109, 1113
19 395 U.S at 614-615. In N L R B v General Stencil Inc., 438 F. 2d 894,
902, (C.A. 2, 1971), the court , in remanding the case to the Board for
reconsideration of its order to bargain , stated that "widespread dissemina-
tion of the threat of plant closure . . . would .. clearly support a
bargaining order. .
JIMMY-RICHARD CO. 809
that Respondent be required to recognize and bargain with
the Union, I shall recommend that the petition in Case
10-RC-9582 be dismissed, and that all proceedings in
connection therewith be vacated. Irving Air Chute, Inc., 149
NLRB 627.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act, I shall recommend that Respondent
cease and desist from engaging in such unfair labor
practices and from like or related unfair labor practices
and to take certain affirmative actions which I find will
effectuate the policies of the Act. I shall also recommend
that Respondent bargain collectively, upon request, with
the Union as the exclusive bargaining representative of the
employees in the unit found appropriate herein, and to
embody any understanding reached in a signed agreement.
Upon the basis of the foregoing findings of fact and on
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the unit
found appropriate, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Hawkinsville , Georgia , place of business,
copies of the attached notice marked "Appendix."21
Copies of said notice, on forms provided by the Regional
Director for Region 10, shall , after being duly signed by
Respondent, be posted immediately upon receipt thereof,
in conspicuous places, including all places where notices to
employees are customarily posted, and be maintained by it
for 60 consecutive days. Reasonable steps shall be taken to
insure that said notices are not altered , defaced , or covered
by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I FURTHER RECOMMEND that the election conducted in
Case 10-RC-9582 on June 1, 1973, be set aside and that
proceeding be vacated and the petition dismissed.
1. Respondent is an employer within the meaning of
the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By threatening employees with plant closure if they
selected the Union in a Board election, Respondent
violated Section 8(a)(1) of the Act.
4. By promising employees additional benefits if they
rejected the Union in the Board election, Respondent
violated Section 8(a)(1) of the Act.
5. By refusing to recognize and bargain with the Union
as the exclusive bargaining representative of employees in
the appropriate unit, Respondent violated Section 8(a)(1)
and (5) of the Act.
6. By unilaterally and without prior notice to, or
consultation with, the Union, changing terms and condi-
tions of employment, Respondent violated Section 8(a)(1)
and (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I recommend the following:
ORDER20
Respondent, Jimmy-Richard Co., Inc., its_ officers,
agents, successors and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with plant closure if they
designate the Union in a Board-conducted election.
(b) Promising employees benefits if they reject the Union
in a Board-conducted election.
(c) Refusing to recognize and bargain with the Union as
the exclusive representative of employees in the unit found
appropriate herein.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in their exercise of
the rights guaranteed in Section 7 of the Act.
20 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 , recommendations and recommended Order herein shall, as
provided in Sec 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and order , and all objections
thereto shall be deemed waived for all purposes.
Si In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to close the plant if
Amalgamated Clothing Workers of America, AFL-
CIO, is selected by you to represent you.
WE WILL NOT promise you benefits in order to get
you to reject the above-named Union.
WE WILL NOT in any like or related manner interfere
with the exercise of the rights guaranteed you by the
National Labor Relations Act.
WE WILL NOT change our vacation practices or any
other terms or conditions of your employment without
first bargaining with the Union.
WE WILL, upon request, bargain collectively with the
Union as the bargaining representative of all employees
in the bargaining unit described below with respect to
wages, hours and other terms and conditions of
employment, and, if an understanding is reached,
embody it in a signed agreement. The bargaining unit
is:
All production and maintenance employees,
excluding office clerical employees , professional
employees , technical employees , guards and
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors as defined in the National Labor This is an official notice and must not be defaced by
Relations Act. anyone.
JIMMY -RICHARD Co. INC. This notice must remain posted for 60 consecutive days
(Employer) from the date of posting and must not be altered, defaced,
or covered by any other material.
Dated By Any questions concerning this notice or compliance with
(Representative) (Title) its provisions may be directed to the Board 's Office,
Peachtree Building, Rm. 701, 730 Peachtree Street, N. E.,
Atlanta , Georgia 30308 , Telephone 404-526-5760.