Naomi Knitting Plant

National Labor Relations Board - Board Decisions

Aug 30, 1999

328 N.L.R.B. 1279 (N.L.R.B. 1999)

NAOMI KNITTING PLANT 1279
Naomi Knitting Plant, A Division of Andrex Indus-
tries Corporation and International Ladies’
Garment Workers’ Union, AFL–CIO1 Cases 11–
CA–15720, 11–CA–15771, 11–CA–16376, and
11–RC–5954
August 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
BRAME
On January 25, 1996, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs and the Respondent filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions
only to the extent consistent with this Decision and Or-
der.4
Background
The Respondent operates a knitting plant with ap-
proximately 100 employees working three shifts. The
Union waged an unsuccessful organizing campaign at the
facility, culminating in an election on October 20 and 21,
1993.5

1 Subsequent to the filing of the charges herein, the Union merged
with the Amalgamated Clothing and Textile Workers’ Union to form
the Union of Needletrades, International and Textile Employees, AFL–
CIO, CLC (UNITE).
2 As we agree with the judge that the General Counsel failed to meet
his burden of proof regarding the complaint’s allegation that former
Comptroller Steven Fowler threatened employees with a loss of bene-
fits if they were to select the Union, we find it unnecessary to pass on
the judge’s admission into evidence of an affidavit given by Fowler,
who had died before the hearing.
3 The Charging Party and the General Counsel have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
4 We shall modify the judge’s recommended Order in accord with
the Board’s decision in Indian Hills Care Center, 321 NLRB 144
(1996), as modified by Excel Container, Inc., 325 NLRB 17 (1997).
5 The vote was 55 against and 47 for the Union with 1 challenged
ballot. The Charging Party filed objections to the election. The judge
recommended that Objections 2, 3, and 7, concerning the threat of a
loss of benefits, the granting of benefits, and a threat to withhold bene-
fits be sustained and that a new election be held. In the absence of
exceptions, we adopt these recommendations, pro forma, and, as dis-
cussed below, find merit in additional complaint allegations, which are
coextensive with other objections filed by the Charging Party.
The petitioned-for bargaining unit includes all production and main-
tenance employees, including hourly and mechanics, janitors, quality
control and warehouse employees employed by the Employer at its
Zebulon, North Carolina facility; excluding all office clerical employ-
ees, professional employees, salaried mechanics, salaried warehouse
employee, guards and supervisors as defined in the Act.
Between mid-November and December 1994, a union
organizer met with interested employees, and had them
circulate a prounion petition in the plant to gauge contin-
ued employee support for the Union. At all times rele-
vant, Stephen Gottdiener was the Respondent’s president
and CEO; Frank Carter its labor consultant and agent;
James Hartman its plant manager; Barbara Alston its
human resources director; and William Batts and Renate
Hord its knitting supervisors.
The judge found that the Respondent violated Section
8(a)(1) by granting benefits to employees to discourage
union support, by threatening to withhold scheduled pay
raises to discourage employees from union activity, and
by threatening employees with a loss of benefits if they
selected the Union, engaged in union activity, or filed
charges with the Board. The judge also found that the
Respondent violated Section 8(a)(2) and (1) by dominat-
ing or interfering with the formation or operation of a
labor organization called the Design Team and that a
Gissel bargaining order is not appropriate in this case.6
No exceptions were filed to the finding of these viola-
tions or the denial of a Gissel bargaining order. The
judge dismissed the complaint’s other alleged violations
of Section 8(a)(1) and dismissed the allegation that the
Respondent violated Section 8(a)(3) and (1) by discharg-
ing employee Mary K. Harris. We reverse the judge with
respect to the dismissals discussed below.
The interrogations
The judge dismissed the allegations that the Respon-
dent violated Section 8(a)(1) through Frank Carter’s and
Barbara Alston’s interrogation of employee Deborah
Baines and Carter’s interrogation of members of the De-
sign Team. The General Counsel and the Charging Party
except, and we find merit in their exceptions.7
A. The Interrogation of Baines by Alston and Carter
In October or November 1994, Alston called employee
Baines to a meeting in Alston’s office with Carter and
asked her what was going on with the Union. Baines
replied “[n]othing I know of.” Carter told Baines that the
Respondent had heard that the Union was trying to come
back in and, in response, Baines said she was unaware of
it. The conversation then ended.
The judge concluded that the Respondent’s “double-
team” questioning of Baines was not coercive and did
not violate Section 8(a)(1), relying upon his finding that
the “generalized” nature of Alston and Carter’s questions
did not suggest that they sought information that would
result in the Respondent’s taking adverse action against
employees. The judge also noted that Alston and Carter

6 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
7 We need not pass on the allegation that the Respondent violated
Sec. 8(a)(1) through Alston’s interrogation of employee Annie White as
such a finding would be cumulative and would not affect the remedy.
328 NLRB No. 180
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
did not ask followup questions or request that Baines
report renewed activity, and that Baines’ apparent height
and robust health would have prevented her from feeling
coerced by the questioning. The judge further concluded
that Baines’ service as a union observer in the election
rendered her an open union supporter, so that the ques-
tioning was not coercive, citing Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985).
Contrary to the judge, we find that, under all the cir-
cumstances, Alston and Carter’s conversation with
Baines violated Section 8(a)(1). As an initial matter, we
disagree with the judge that the questions were of such a
“generalized” nature as to render them noncoercive.
Indeed, Alston directly asked about the status of union
activity in the plant, and Carter, in an apparent attempt to
prompt a response different from Baines’ initial negative
reply, stated that they had heard the Union was trying to
come back in.8 Moreover, Alston called Baines into a
meeting with the Respondent’s labor consultant in a su-
pervisor’s office, so that the location and “double-
teaming” of the colloquy would have amplified the ques-
tioning’s impact.
The Respondent’s assigning Baines to an employee in-
volvement team called the “Design Team” does not insu-
late its interrogation of her from a finding of unlawful-
ness. After the election and on the advice of a consult-
ant, the Respondent formed the Design Team, composed
of employees, to address a wide range of employment
and production issues. The judge found that the Respon-
dent violated Section 8(a)(2) and (1) of the Act by domi-
nating the formation and operation of the Design Team.
We find that, as the Design Team was an unlawful tool to
interfere with employee free choice, and the Respon-
dent’s choosing the employee members contributed to its
interference with Section 7 rights, Baines’ involvement
with management personnel on the Design Committee
does not render the Respondent’s interrogation lawful.
Finally, in view of all the other circumstances, the evi-
dence of Baines’ limited union activity does not negate
the questioning’s coercive nature. See Stoody Co., 320
NLRB 18 (1995) (employer coercively interrogated
open, ardent union supporter).
B. Carter’s Interrogation of Design Team Members
The General Counsel excepts to the judge’s dismissal
of the allegation that in November 1994, Carter unlaw-
fully interrogated about 10 employees during a meeting
with members of the Design Team. At the meeting,
Carter stated that the team needed to talk about commu-
nications, that there were rumors that the Union would
come in if employees signed a piece of paper, and that
such a result could not occur under the law. Carter asked

8 We do not rely on the judge’s comments concerning Baines’ ap-
parent height and robust health, as such considerations are irrelevant to
the determination of whether the Respondent’s questioning of Baines
constitute unlawful interrogation.
the employees whether anyone had heard anything about
the Union. Several or perhaps all of the employee mem-
bers replied that they had not. Although the minutes of
the meeting included the statement that a memorandum
would be posted informing employees that their signing a
paper would not confer rights on the Union, both Alston
and an employee member testified that the Design Team
did not agree to that statement.
The judge found that Carter’s statement was not coer-
cive and therefore did not violate Section 8(a)(1). He
noted that Carter did not single out any individual, that
he asked no followup questions, that no “coercive motive
was indicated,” and that it appeared that the purpose of
the question was to determine if the Respondent needed
to post a notice for the employees’ “educational benefit.”
Contrary to the judge, we find that Carter’s conduct
violated Section 8(a)(1). A finding that an employer has
interfered with, restrained, or coerced employees in their
exercise of statutory rights does not depend on the re-
spondent’s motive or the success or failure of the coer-
cion, but depends instead on whether the respondent en-
gaged in conduct that may reasonably tend to interfere
with the free exercise of rights under the Act. William-
house of California, Inc., 317 NLRB 699, 713 (1995).
We find that, under the circumstances, Carter’s ques-
tioning of the employees would reasonably tend to inter-
fere with their rights. Carter’s direction of the question
to 10 employees rather than to an individual does not
remove the coercive impact of the question and in fact
may enhance it, as the questions thus put every employee
on the spot. Moreover, the fact that employees re-
sponded to the Respondent’s questions does not indicate
that the questions were noncoercive. Finally, as dis-
cussed, above, the Respondent’s use of an unlawful em-
ployee involvement committee, the Design Team, to
communicate with employees about the Union does not
mitigate the coercive nature of the questioning.
The solicitation of grievances
The Charging Party excepts to the judge’s finding that
the Respondent did not violate Section 8(a)(1) through
Supervisor Renate Hord’s alleged solicitation of griev-
ances from employees. Based on the credited testimony
of employee Annie White, the judge found that, on Sep-
tember 22, 1993, White was brought by a supervisor to
another supervisor’s office to meet with Hord. Hord told
White that she wanted to educate her about the Union
and its constitution. During the discussion, Hord asked
White what problem had caused the employees to want
to bring in the Union. White said that there were race
problems because none of the supervisors were black,
that she had asked the plant manager about this issue and
that, although he said he would get back to her with an
answer, he did not do so. White added that the Respon-
dent offered its janitors, most of whom were male, posi-
tions as fixers before it offered them to more senior em-
NAOMI KNITTING PLANT 1281
ployees. Hord replied that, as a woman, she could un-
derstand the problem, and that she would get an answer
for White. Hord did not follow up with White. The
judge found that Hord’s conduct did not violate Section
8(a)(1), noting that Hord never returned with an answer
or corrected the problems and that getting an “answer”
implies the possibility that circumstances would not
change.
Contrary to the judge, we find that Hord’s conduct vio-
lated Section 8(a)(1). The Board has long held that the
solicitation of grievances from employees during union
campaigns, in the absence of evidence establishing
grievance meetings were held in the past, raises the in-
ference that the employer is making an implied promise
to remedy the grievances. Logo 7, Inc., 284 NLRB 204,
205–206 (1987). In this case, Hord explicitly solicited
the grievances that had motivated the organizing effort,
expressed her sympathy with White and her concerns,
and promised that she would take action on White’s be-
half, i.e., get her an answer. Under these circumstances,
we find that Hord’s solicitation contained an implied
promise to consider seriously the concerns of White and
the other employees and to remedy them.9 See Foamex,
315 NLRB 858, 859 (1994) (asking employees about
their problems and for possible solutions contains im-
plied promise to resolve problems). The Respondent has
advanced no evidence to rebut the inference that its con-
duct was unlawful. Finally, Hord’s failure to remedy the
grievances, taken alone, does not serve to rebut the infer-
ence. See New Life Bakery, 301 NLRB 421, 427 (1991),
enfd. 980 F.2d 738 (9th Cir. 1992).10
The discharge of Mary K. Harris
We also find merit in the exceptions of the General
Counsel and the Charging Party to the judge’s finding
that the Respondent did not violate Section 8(a)(3) and
(1) in its discharge of employee Mary K. Harris.11 As
established by the Board in Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), to set forth a violation
under Section 8(a)(3), the General Counsel is required to
show by a preponderance of the evidence that animus
against protected conduct was a motivating factor in the
employer’s conduct. Once this showing has been made,

9 Moreover, we note that, although the plant manager had a practice
of inquiring about problems and provided a suggestion box, there is no
evidence that the supervisors did so, and in this case, Hord specifically
inquired about grievances that motivated the organizing effort. Thus,
there is insufficient evidence to conclude that the Respondent had law-
ful reasons for the solicitation of grievances.
10 We need not pass on the allegation that the Respondent violated
Sec. 8(a)(1) through Gottdiener’s solicitation of grievances, as such a
finding would be cumulative.
11 As there is sufficient evidence to conclude that the Respondent
violated Sec. 8(a)(3) and (1) by discharging Harris, we find it unneces-
sary to pass on the judge’s ruling that a tape recording and transcript of
a state unemployment compensation hearing involving Harris’s dis-
charge were inadmissible and not relevant.
the burden shifts to the employer to demonstrate that the
same action would have taken place even in the absence
of the protected conduct. To sustain his initial burden,
the General Counsel must show

(1) that the employee was engaged in protected activ-
ity, (2) that the employer was aware of the activity, and
(3) that the activity was a substantial or motivating rea-
son for the employer’s action. Motive may be demon-
strated by circumstantial evidence as well as direct evi-
dence and is a factual issue which the expertise of the
Board is peculiarly suited to determine.

FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir.
1995), enfg. 314 NLRB 1169 (1994) (citations omitted).
The judge concluded that the General Counsel failed to
establish a prima facie case that the Respondent dis-
charged Harris for engaging in protected union activity.
The Respondent contends that it discharged Harris on
about December 8, 1994, for her conduct at a safety
meeting held at the plant 2 days earlier. We find, con-
trary to the judge, that the General Counsel has met his
initial burden and that the Respondent has failed to rebut
it.
The facts, based on the credited testimony or undis-
puted in the record, follow. Harris began work for the
Respondent in May 1988 and consistently received posi-
tive performance evaluations. Prior to her discharge,
Harris had never been disciplined or warned. Moreover,
although the Respondent had long experienced poor at-
tendance and high turnover problems with its work force,
Harris had no unexcused absences during her entire em-
ployment and had the distinction of maintaining a nearly
perfect attendance record, having missed only 3 days
(due to a miscarriage) in over 6 years. Indeed, Plant
Manager Hartman testified that, in his 23 years’ experi-
ence in the textile industry, Harris’ attendance was so
unusual that he could think of no other employee with a
similar record. The Respondent’s absenteeism problem
was so significant that, in the fall of 1994, the Respon-
dent threatened to downsize the plant if attendance did
not improve. Thus, the record shows that Harris was a
reliable and more than satisfactory employee.
Harris actively and openly supported the Union and
served as a Union observer at the October 1993 election.
She continued to wear a union T-shirt to work about once
a month until about May 1994. The judge found that,
despite its assertions to the contrary, the Respondent was
well aware of her union activity and knew her to be one
of the employees who continued to support the Union
and was most likely to be involved in the November and
December 1994 resurgent union activity, of which the
Respondent was also aware.
On December 6, the Respondent held a mandatory
safety training meeting for Harris and about 60 other
employees on a day Harris was scheduled to be off.
Human Resources Director Alston had invited Guy
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
Farmer, an instructor from the state community college
system, to conduct the training and had arranged for em-
ployees to receive further training through a community
college located in Raleigh, North Carolina, if they chose
to do so. At the beginning of the meeting, Alston intro-
duced Farmer, explained the safety program, and began
to distribute a continuing education preregistration form
supplied by the college. Alston explained that the pur-
pose of the form was to allow the college to enter the
employees’ names into its computer so the ones who
wished to enroll at the college would be registered in the
college’s system. Alston also told employees that the
form would verify their attendance at the safety meet-
ing.12
Harris was seated at a table with six other employees,
including her mother, Mary Moore. After the forms
were distributed, an employee asked why the employees
had to fill out the forms. Alston replied that they had to
do so to show the school that the attendees had taken the
course for a certain number of hours. Harris then re-
marked, while facing others at her table, “I’m not going
to fill out this form, I don’t want to be here anyway.”13
Harris then turned, raised her hand, and in a loud voice14
asked Alston, who was near the end of the table, “Bar-
bara, do we have to fill out these forms?” Alston replied
“No,” went to her office, and returned with a piece of
paper, which she slapped onto the table in front of Harris.
Alston informed the employees that those who did not
wish to fill out the college’s form should sign the blank
piece of paper to be paid for attending the meeting.15
The judge found that Harris and two other employees at
her table signed the paper. Neither Harris nor Moore
filled out the college form. Harris then stayed until the
end of the meeting and participated in the training pro-
gram.
After the safety meeting, Alston reported Harris’
statements to Plant Manager Hartman, who the judge
found decided to have Harris discharged for insubordina-
tion “on the spot.” Both Alston and Hartman spoke to
Supervisor Batts, who agreed that Harris should be ter-
minated. On December 8, Alston told Batts that the ter-
mination slip should indicate that the grounds for dis-

12 Harris understood Alston as stating that the purpose of the form
was to register employees in the event they wanted to take classes at
Wake Tech, which is about 40 miles from her home.
13 The judge characterized Harris’ tone as loud, angry and “rude”
and carefully considered the issue of the individuals to whom Harris
addressed the remark. We accept the judge’s ultimate findings about
Harris’ tone of voice. Farmer testified that he thought that Harris was
speaking to him and he responded that it was her choice whether to
attend. He testified that he did not consider her tone to be abusive or a
personal affront. However, as the judge observed, Farmer may have
been testifying about a discussion he had with different employee.
Harris denied that Farmer ever came to her table.
14 As asserted by the Respondent, admitted by Harris, and noted by
the judge, Harris generally speaks in a loud voice.
15 At the end of the meeting, Alston gave Farmer a list with the name
and social security number of each attendee.
charge were insubordination and failure to participate in
the safety program.16
After being told by Batts on the morning of December
8 that she was being discharged, Harris asked Alston for
the reason. Crediting Harris and Moore, the judge found
that Alston reached into her desk and pulled out a com-
munity college form and said that Harris had refused to
sign one. Harris replied that she had not refused to sign
the form and that Alston had told the employees that
those who did not want to sign the form could sign a
blank piece of paper to get paid. Alston reiterated that
Harris had refused to sign. Harris responded that she
could prove that others at her table did not sign the form
as well, but Alston answered that she was sure that Har-
ris was the only one who had not. Harris stated that
Moore had not signed it. Moore was summoned and she
verified that she too had not signed it. Alston said she
was sure that Moore had signed it and that she would ask
the college to return the form so Moore could identify it.
In response to Moore’s query as to the whereabouts of
the blank piece of paper that she had signed, Alston re-
plied that she threw it away because the employees had
signed their timecards. Harris told Alston that she would
have signed the college form if she had known it had
anything to do with her job. After meeting with Hartman
and Alston on December 8, the Respondent’s president,
Gottdiener approved the discharge. Alston conceded at
the hearing that she had never investigated whether
Moore or any other employee failed to sign the college
forms.17
As noted above, we find that the General Counsel has
met his initial burden of showing that the Respondent
discharged Harris because of her union activity in viola-
tion of Section 8(a)(3) and (1). As the judge found, Har-
ris had been an open and active union supporter and the
Respondent was well aware of her activity. Further, the
record contains ample evidence of the Respondent’s an-
tiunion animus, which exceeded a lawful position that it
did not wish the employees to vote for union representa-
tion. This animus is illustrated by the Respondent’s
various violations of the Act. Moreover, the Respondent
discharged Harris relatively soon after her union activity
and on the heels of a resurgent union movement. Thus,
the timing of the discharge also supports an inference of
discriminatory motivation.18 Harris’s length of employ-
16 The termination slip listed the reason for action as “Terminated,
Insubordination” and stated under supervisory comments “Failure to
Participate in Safety Training Program. . . . Decline[d] to complete
paper work (1) form all employees [were] asked to fill out.”
17 Alston, whom the judge did not credit with regard to this conver-
sation, testified that she told Harris that her conduct had been insubor-
dinate, “which warrants termination, and that was it.” The judge found
that Alston shifted her reasons for the termination during her testimony.
18 Contrary to the judge, we do not find that the timing factor neces-
sarily favors a respondent whenever the discipline is imposed, as in this
case, immediately following the alleged infraction. An employer might
wait for a pretextual opportunity to discipline an employee for engaging
NAOMI KNITTING PLANT 1283
ment, her good employment record, her attendance re-
cord, which the Respondent admitted was remarkable,
and the absence of any previous discipline during the
entire tenure of her employment also support the General
Counsel’s showing.
In response, the Respondent asserts that it discharged
Harris for her insubordinate conduct at the safety training
meeting, which was reflected in the loud and “rude” na-
ture of her comments. In contrast to this asserted reason,
the termination slip stated that Harris was insubordinate
because she failed to participate in the safety program
and declined to complete the paperwork. These latter
grounds are consistent with the reasons Alston stated to
Harris on December 8.
In fact, however, Harris fully participated in the safety
program and, after asking Alston if it was necessary to
sign the form and receiving a negative response, signed
the blank piece of paper instead of the college form, as
Alston told her she could. At least two other employees
failed to sign the college form and were not disciplined
in any way. Harris explained these facts to Alston on
December 8, and Alston chose not to investigate. Thus,
Harris, until that time a reliable employee with an un-
blemished employment record, was discharged for an
asserted rationale that bears no relation to her actual con-
duct, and for which other employees in the same position
were not disciplined. Such is a classic case of disparate
treatment.19
Shifting its justification for Harris’ discharge, the Re-
spondent asserted at the hearing and to the Board that
Harris was insubordinate because of the manner of her
speech. Thus, contrary to its statements to Harris upon
her discharge, the Respondent no longer contends that
Harris failed to follow instructions. With regard to the
volume of her speech, the evidence reflects that Harris
has a loud voice and had never received discipline for it
prior to her discharge. We find the remaining evidence
concerning the manner of Harris’ expression, including
her “rudeness,” insufficient to rebut the General Coun-
sel’s strong showing of discrimination.20 Moreover, the
Board has long held that shifting reasons constitute evi-

in protected activity. In addition, we do not agree with the judge’s
implication that an employer’s failure to engage in a campaign of har-
assment against a particular employee demonstrates that the employer
did not maintain animus toward that employee for union activities.
19 Thus, we do not agree with the judge that Harris’ refusal to sign
the college form was “carved in stone” as soon as she exclaimed that
she was not going to fill out the form and that she did not want to be
there, as she immediately checked with Alston directly concerning
whether she was required to sign the form and Alston told her that she
did not have to do so.
20 Other than her tone, Harris’ “rudeness” apparently consisted in
commenting that she did not want to be there on her day off and was
not going to fill out the form, and asking why she had to fill out forms
for the convenience of a community college. While we do not second-
guess an employer’s discipline, we find that this conduct, under the
circumstances of this case, is insufficient to outweigh the evidence
supporting a finding that her discharge was for pretextual reasons.
dence of discriminatory motivation, and we so find
here.21 See Mastercraft Casket Co., 289 NLRB 1414,
1420 (1988), enfd. 881 F.2d 542 (8th Cir. 1989). Ac-
cordingly, we find that all of the Respondent’s asserted
reasons for the discharge are pretextual, and the Respon-
dent has not shown that Harris would have been dis-
charged in the absence of her union activity and support.
See Limestone Apparel Corp., 255 NLRB 722 (1981)
(having concluded that the reasons advance were pretex-
tual, the analytical objectives of Wright Line are met).
CONCLUSIONS OF LAW
1. The Respondent, Naomi Knitting Plant, a Division
of Andrex Industries Corporation, is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. From October 1993 through November 9, 1993, the
Respondent violated Section 8(a)(1) of the Act by grant-
ing employees benefits and by threatening to withhold
scheduled pay raises, both to discourage employees from
engaging in union activity, and by threatening employees
with a loss of benefits if they chose the Union to repre-
sent them.
4. On September 22, 1993, the Respondent violated
Section 8(a)(1) of the Act by soliciting and impliedly
promising to remedy an employee’s grievance in order to
discourage her from union activities.
5. In October or November 1994, and again in No-
vember 1994, the Respondent violated Section 8(a)(1) of
the Act by interrogating employees concerning their un-
ion activities and sympathies.
Beginning about December 1994, and continuing
thereafter, the Respondent violated Section 8(a)(2) and
21 The General Counsel and the Charging Party argue that a finding
of discriminatory motivation was supported by the discrepancies be-
tween Alston’s testimony respecting the safety meeting and Harris’
discharge and other record evidence, as well as the shift in the Respon-
dent’s asserted reasons for discharging Harris. The judge acknowl-
edged the discrepancies and shifting reasons but rejected the General
Counsel’s and Charging Party’s arguments which he characterized as
relying on an assumption that the Respondent wanted to rid itself of
Harris and her union sentiments. The judge found that assumption
unsupported by the Respondent’s conduct. We disagree with the
judge’s characterization of the Charging Party’s and General Counsel’s
reasoning. They contend that the Respondent’s stated motive for dis-
charging Harris is not its real motive. When it is alleged that a respon-
dent’s stated reasons for discharging an employee are a pretext for
underlying discriminatory motivation, the analysis of the respondent’s
case begins, not with an assumption that the respondent had an unlaw-
ful motivation for discharging an employee, but with an examination of
the stated reasons for the discharge. If those reasons are consistent with
the facts and with the respondent’s actions at the time the employee
was discharged, then the respondent will have established a strong case
that it had a nondiscriminatory motive for discharging the employee.
If, as here, the Respondent alters its stated grounds for discharging an
employee as the matter proceeds, or its stated reasons for discharging
the employee are inconsistent with its conduct, then the respondent, as
in this case, leaves itself open to the inference that its asserted reasons
for discharging the employee are not its actual reasons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
(1) of the Act by initiating, forming, assisting, and domi-
nating the Design Team.
7. On or about December 8, 1994, the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Mary K. Harris for engaging in protected activity.
8. The aforesaid violations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
9. The allegations raised in the Charging Party’s Ob-
jections 2, 3, and 7 to the election held in Case 11–RC–
5954, and other objections coextensive with the addi-
tional unfair labor practices found above, are sufficient to
warrant a finding that the Respondent interfered with the
conduct of the election and that a second election should
be held.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(3) and (1) of the Act, we shall order the Respondent
to cease and desist from engaging in such conduct and to
take certain affirmative action. The Respondent shall be
ordered to offer Mary K. Harris immediate and full rein-
statement to her former or substantially equivalent posi-
tion, without prejudice to her seniority and other rights
and privileges previously enjoyed, and to make her
whole for any loss of earnings she may have suffered
from the dates of her discharge to the date of the Re-
spondent’s offer of reinstatement, with interest, in accor-
dance with F.W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent also
shall be ordered to remove from its files any references
to the discharge of Harris, and to notify her, in writing,
that this has been done and that no evidence of this
unlawful discharge shall be used as a basis for future
personnel actions against her.
ORDER
The National Labor Relations Board orders that the
Respondent, Naomi Knitting Plant, A Division of An-
drex Industries Corporation, Zebulon, North Carolina, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Granting employees benefits and threatening to
withhold from them scheduled pay raises in order to dis-
courage them from engaging in union activity and threat-
ening employees with a loss of benefits if they select the
International Ladies’ Garment Workers’ Union, AFL–
CIO or any other labor organization as their collective-
bargaining representative.
(b) Soliciting and impliedly promising to remedy
grievances from any employee to discourage union sup-
port or union activities.
(c) Coercively interrogating any employee about union
support or union activities.
(d) Dominating or interfering with the formation or
administration of any statutory labor organization.
(e) Discharging or otherwise discriminating against
employees for supporting the International Ladies’ Gar-
ment Workers’ Union, AFL–CIO or any other labor or-
ganization.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Immediately disestablish and cease giving assis-
tance or any other support to the Design Team.
(b) Within 14 days from the date of this Order, offer
Mary K. Harris full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(c) Make Mary K. Harris whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner provided in the
remedy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not
be used against her in any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary or useful in
analyzing the amount of backpay due under the terms of
this Order.
(f) Within 14 days after service by the Region, post at
its facility in Zebulon, North Carolina, copies of the at-
tached notice marked “Appendix.”22 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

NAOMI KNITTING PLANT 1285
ployed by the Respondent at any time since September
22, 1993.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that Case 11–RC–5954 is sev-
ered from Cases 11–CA–15720, 11–CA–15771, and 11–
CA–16376, and that it is remanded to the Regional Di-
rector for Region 11 for action consistent with the Direc-
tion below.
[Direction of Second Election omitted from publica-
tion.]
MEMBER BRAME, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(3) and (1) by discharging Mary K.
Harris, violated Section 8(a)(2) and (1) by forming and
dominating the Design Team, and violated Section
8(a)(1) by soliciting and impliedly promising to remedy
grievances.1 In agreement with the judge, however, I
would not find that the Respondent violated Section
8(a)(1) by Supervisor Barbara Alston’s conversation with
employee Annie White; by the conversation between
Alston and the Respondent’s labor consultant Frank
Carter and employee Deborah Baines; and by Carter’s
discussion with employee members of the Respondent’s
“Design Team.”2 In my view, the judge correctly found
that the interactions between the Respondent’s agents
and these employees would not reasonably tend to inter-
fere with the employees’ exercise of their Section 7
rights.
The facts are as follows. In June or July 1994,3 Alston
approached White on the work floor and, in an apparent
reference to the election in 1993, which the Union had
lost, asked her what had happened about the Union.
White, who acknowledged that she had openly supported
the Union, replied that the employees would have been
better off if the Union had come in.
In October or November, Alston and Carter spoke to
Deborah Baines, who had served as one of the Union’s
election observers, in Alston’s office.4 Alston asked
Baines what was going on with the Union and Baines
replied “[n]othing I know of.” Carter stated that he had
heard that the Union was trying to come back in and
Baines replied that she was unaware of it. The conversa-
tion ended without any additional questions. As the
judge noted, Baines, as a member of the Design Team,

1 I also agree with my colleagues that the Respondent did not unlaw-
fully threaten employees with a loss of benefits or with bargaining from
scratch.
2 I agree with my colleagues that the Board need not pass on the al-
legation that the Respondent unlawfully solicited grievances through
statements made by the Respondent’s president and CEO, Stephen
Gottdiener, as it is cumulative.
3 Unless otherwise noted, all dates are in 1994.
4 I agree that Carter was an agent of the Respondent.
regularly interacted with Alston, Carter, and other man-
agement representatives.5
Finally, in a discussion of the need for better commu-
nication between management and employees during a
meeting of the Design Team on November 30, Carter
commented that he had heard rumors that the Union
would come in if the employees “signed a paper,” and
stated that such an event could not occur under the law.
Carter asked if anyone had heard anything about the Un-
ion and the employees responded that they had heard
nothing. Alston testified that employees at the meeting
expressed concern about the rumor and wanted an expla-
nation.
It is difficult to conceive of queries more general than
those posed to Baines, White, and the Design Team
committee employees, or exchanges more devoid of ex-
press or implied threats or promises than those recounted
above. My colleagues have overreached in finding the
questions above coercive, and their holding is in conflict
with the Board’s announced rules of law. The Board has
held that an employer’s interrogation of employees re-
specting union activity does not violate Section 8(a)(1)
unless “under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with
rights guaranteed by the Act.”6 In Rossmore House, the
Board referred with approval to test set out in Bourne v.
NLRB7 and announced:

Our duty is to determine in each case whether, under
the dictates of Sec[tion] 8(a)(1), such interrogations
violate the Act. Some factors which may be considered
in analyzing alleged interrogations are: (1) the back-
ground; (2) the nature of the information sought; (3) the
identity of the questioner; and (4) the place and method
of interrogation.8

In each of the instances of questioning at issue here,
weighing the factors militates against a finding of a vio-
lation of Section 8(a)(1). The 8(a)(1) violations found by
the judge do not support a finding that the comments
discussed above are unlawful, as they are unrelated and
occurred at a substantially earlier time. In October 1993,
the Respondent unlawfully granted benefits to employees
to discourage union support and threatened to withhold
5 The Design Team was a committee of employees, organized by the
Respondent in the aftermath of the Union’s previous unsuccessful
organizing drive, with the stated purpose of improving communications
with employees and addressing employment and production issues.
The judge found that the Respondent violated Sec. 8(a)(2) and (1) of
the Act by dominating the formation and operation of the Design Team
and no exceptions were filed to this finding.
6 Rossmore House, 269 NLRB 1176, 1177 (1984), affd. sub nom.
Hotel Employees Union, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985) (emphasis added). See also Sunnyvale Medical Clinic, 277
NLRB 1217 (1985) (Board extends Rossmore standards to questioning
of employees who are not open union supporters).
7 332 F.2d 47 (2d Cir. 1964).
8 Rossmore House, 269 NLRB at 1178 fn. 20.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
scheduled pay raises to discourage employees from un-
ion activity, and, in November 1993, threatened employ-
ees with a loss of benefits if they selected the Union,
engaged in union activity, or filed charges with the
Board. The comments at issue in these allegations were
made in June or July and October or November 1994,
some 7 to 8 months later, and others a year later, than the
other violations of Section 8(a)(1). Thus, although the
Respondent’s plant was not completely free of unfair
labor practices during the period relevant to the com-
plaint, the innocuous remarks at issue here do not take on
coercive impact because of a general atmosphere of co-
ercion.
Further, Alston’s discussion with White, who was an
outspoken supporter of the Union, took place on the
work floor, involved a low-level supervisor’s single
question about the aftermath of the representation elec-
tion, elicited an unhesitating reply favoring union repre-
sentation, and ended after one question.9 I find that the
exchange contained no hint of coercion. 10 See NLRB v.
Acme Casting Corp., 728 F.2d 959, 962–963 (7th Cir.
1984) (supervisor’s question to employee regarding what
was going on with union was not coercive). Likewise,
Alston and Carter’s questioning of open union adherent
Baines involved nothing more than two generalized in-
quiries regarding the Union’s activities. Although the
discussion took place in Alston’s office, Baines was ac-
customed to dealing on a face-to-face basis with both
Carter and Alston, and again, the inquiry was general in
nature, called for no information about Baines’ own ac-
tivities, did not ask her to name other employees or dis-
cuss their conduct or attitudes, and ended when Baines
stated that she did not know about the Union.
I also find, in agreement with the judge, that Carter’s
questioning of the Design Team did not constitute unlaw-
ful interrogation. As the judge found, Carter directed a
single question to the group as a whole, did not single out
any employee, and asked no followup questions about
any employee’s actions or attitudes. His question was
reasonably related to a determination of the need for a
notice to inform employees regarding the law and to the
employees’ express desire for information. See NLRB v.
Village IX, Inc., 723 F.2d 1360, 1365–13969 (7th Cir.

9 As the court in Graham Architectural Products v. NLRB, 697 F.2d
537, 541 (3d Cir. 1983), rehearing and rehearing in banc denied 706
F.2d 441 (1983), modified 113 LRRM 3111 (1983), observed in over-
turning several Board interrogation findings:
Because production supervisors and employees often work
closely together, one can expect that during the course of the
workday they will discuss a range of subjects of mutual inter-
est, including ongoing unionization efforts. To hold that any
instance of casual questioning concerning union sympathies
violates the Act ignores the realities of the workplace. This
passage was cited with approval by the Board itself in Ross-
more House, supra, 769 NLRB at 1177.
10 In so finding, I do not rely on the judge’s comment that, because
of her height and robust health, White would not have been easily in-
timidated.
1983) (court acknowledged employer’s legitimate inter-
est in finding out whether union has talked to employees,
and does not violate Sec. 8(a)(1) if it merely asks without
pressing inquiry contrary to employee wishes or utters
coercive statement). Thus, all of the questions were gen-
eral and nonthreatening in nature. The employer speech
in each of these instances falls outside the ambit of Sec-
tion 8(a)(1)’s proscription of interference, restraint, and
coercion.11
The Board has found that similar interchanges have
not violated Section 8(a)(1). See, e.g., Farr Co., 304
NLRB 203, 216–217 (1991) (effort by supervisor to as-
certain support for a second union campaign not unlaw-
ful, as the supervisor worked closely with the employees,
the purpose of the questions was self-evident, and the
employees answered truthfully); and Emery Worldwide,
309 NLRB 185, 186–187 (1992) (no violation where
supervisor asked employee how she felt about the union,
but asked no followup questions and, inter alia, the con-
versation was “casual and amicable” and unaccompanied
by coercive statements). Accordingly, I find that the
Respondent did not violate Section 8(a)(1) through any
of these discussions.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT grant you benefits in order to discourage
you from supporting International Ladies’ Garment
Workers’ Union, AFL–CIO or any other labor organiza-
tion, threaten to withhold your scheduled pay raises in
order to discourage you from engaging in union activity,
or threaten you with loss of benefits if you select the Un-
ion, or any other labor organization, as your collective
bargaining representative.
WE WILL NOT coercively question you about your union
support or activities.
11 See Midwest Stock Exchange v. NLRB, 635 F.2d 1255 (7th Cir.
1980): “[t]o fall within the ambit of Sec. 8(a)(1), the words themselves
or the context in which they are used must suggest an element of coer-
cion or interference.”
NAOMI KNITTING PLANT 1287
WE WILL NOT solicit or impliedly promise to remedy
your grievances in order to discourage your union activi-
ties.
WE WILL NOT dominate or interfere with the formation
or administration of any labor organization.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the International La-
dies’ Garment Workers’ Union, AFL–CIO or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL immediately disestablish and cease giving as-
sistance or any other support to the Design Team.
WE WILL, within 14 days from the date of the Board’s
Order, offer Mary K. Harris full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed,
and WE WILL make her whole, with interest, for any loss
of pay she may have suffered as a result of her discharge.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Mary K. Harris, and WE WILL, within 3
days thereafter, notify her in writing that we have done
so and that we will not use the discharge against her in
any way.
NAOMI KNITTING PLANT, A DIVISION OF
ANDREX INDUSTRIES CORPORATION

Jane P. North, Esq., for the General Counsel.
Weyman T. Johnson Jr., Esq., Leslie A. Dent, Esq., and Kim-
berly M. Zywicki, Esq. (Paul, Hastings, Janofsky &
Walker), of Atlanta, Georgia, for Naomi Knitting.
James R. Goldberg, Esq., of Atlanta, Georgia, for the Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. To a major
extent, this is a discharge case (Mary K. Harris fired December
8, 1994). Naomi’s knowledge of Harris’ union sentiments (she
was one of the Union’s observers at the October 1993 election)
is at issue. When employee interest resurged in November
1994, Naomi’s top management, I find, directed local manage-
ment to (figuratively), in the words of “Capitaine Renault:”1
Round up the usual suspects.
Arising from the Union’s organizing campaign (the Union
lost the October 20–21, 1993 election by a vote of 55 to 47),
this case involves allegations of Section 8(a)(1) coercion (and
related objections filed by the Union to alleged election conduct
by Naomi), Section 8(a)(2) assistance to and domination of
certain employee/management committees (the principal com-
mittee being the Design Team), Section 8(a)(3) discharge
(Mary K. Harris was fired December 8, 1994), Section 8(a)(5)

1 Claude Rains, as the French police chief in the finale, when Hum-
phrey Bogart shoots the Gestapo major who is about to prevent the
escape of Ingrid Bergman and Paul Henreid to America. (Casablanca,
1942).
refusal to recognize and bargain with the Union since August
26, 1993 (the date of a disputed visit to the plant by union rep-
resentatives and the date the Union filed its election petition),
and the Government’s request for an order requiring Naomi to
recognize and bargain with the Union.2
Although finding merit to three of the 8(a)(1) allegations,
and also to the 8(a)(2) allegation, I dismiss the balance of the
complaint, including the 8(a)(3) allegation (respecting the dis-
charge of Mary K. Harris), and the 8(a)(5) allegation. I deny the
General Counsel’s request for a bargaining order. Based on the
violations found, and on certain of the Union’s objections to the
election conduct by Naomi, I recommend that the Board set
aside the October 20–21, 1993 election and direct that a second
election be conducted.
I presided at this 7-day trial in Raleigh, North Carolina, be-
ginning March 13, 1995, and closing May 23, 1995. Trial was
pursuant to the February 23, 1995, third order consolidating
cases, and consolidated complaint, and notice of hearing (com-
plaint), as amended during trial, issued by the General Counsel
of the National Labor Relations Board through the Regional
Director for Region 11 of the Board.
The complaint is based on charges filed in the captioned
cases by the International Ladies’ Garment Workers’ Union,
AFL–CIO (the Union or ILGWU) against Naomi Knitting
Plant, a Division of Andrex Industries Corporation (Naomi). In
the lead case, Case 11–CA–15720, the Union filed its charge on
November 1, 1993 (the charge was served that date on Naomi),
and amended it on December 8. The Union filed the second
charge, Case 11–CA–15771, on December 6, 1993, and the
third charge, Case 11–CA–16376, on January 17, 1995. The
latter two charges also were served on Naomi the same day
they were filed.
The pleadings establish that the Board has both statutory and
discretionary jurisdiction over Naomi, and that the ILGWU is a
labor organization within the meaning of Section 2(5) of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs3
filed by the General Counsel (who attached a proposed order
and notice to the Government’s brief), the Union, and Naomi, I
make these:
FINDINGS OF FACT
I. BACKGROUND
A. Naomi
Although complaint paragraph 2 (admitted) makes a global
reference to “Respondent’’ as being a New York corporation, it
clearly is Andrex Industries Corporation (Andrex) which is the
New York corporation, with Naomi Knitting Plant being, at
most, a division of Andrex. Naomi Knitting Plant is the name
of an Andrex knitting plant located at Zebulon, North Carolina
(7:1453) where, Stephen Gottdiener testified (7:1455), it pro-
duces double knit fabrics for men, women, and children.4
2 Except as otherwise indicated, all dates are for 1993.
3 The parties submitted briefs which were very helpful by substitut-
ing the volume number of the transcript for “Tr.,” and by anchoring
their transcript references to the volume number, page number, and
name of the witness.
4 References to the seven-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Counsel’s,
CPX for the Charging Party ILGWU’s, and RX for those of Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
Gottdiener is president and chief executive officer (CEO) of
Andrex. (7:1453.) As the Zebulon plant is the only Andrex
facility directly involved here, I refer to the company as Naomi.
There are record references to an Andrex plant at Asheville,
North Carolina. Whereas the Zebulon plant is Andrex’s major
knitting plant, the Asheville plant, Gottdiener testified, serves
as a research and design center and finishing plant. (7:1454–
1455.) Greg Lundblad, vice president of manufacturing for
Andrex, is in charge of both the Zebulon and Asheville plants.
(7:1618.) Unless the context indicates otherwise, all references
to the plant are to the facility at Zebulon.
The Zebulon plant is housed in one building and employs
slightly over 100 employees working on three shifts. (7:1455.)
The first shift has about 45 employees (including those in the
office, 4:973), and the second and third shifts about 30 employ-
ees each. (4:932.) James Miller was plant manager from
March 1993 to mid-February 1994. (4:852, 867, 923.) Miller
was succeeded by James Hartman, who had been serving as the
production control manager since being hired on September 6,
1993. (7:1336–1377.) Barbara Alston was the plant’s first
human resources manager, with her term of employment at the
plant beginning about April 1, 1994, and ending about mid-
March 1995. (6:1094–1095, 1256.) On the first shift, William
Batts was, and is, the knitting room supervisor (7:1542), and
Renate (Renee) Hord was the second-shift knitting supervisor
(1:65–66; 7:1456).
[Although Naomi’s counsel represent (Br. 6) that Renee
Hord no longer works at the plant, they cite no record support
for their representation. Hord did not testify, and presumably
the representation is submitted to mean (1) Hord had left
Naomi before the trial and (2) that is why Hord did not testify.]
B. The Organizing Campaign
Donna Burnett, currently a business agent for the ILGWU,
and David Skinner, currently an assistant organizing director
for the Union, were ILGWU organizers in the summer of 1993.
Beginning August 4, they met after work several times with
interested employees at a city park near the plant. By August
26, the two organizers rather quickly obtained signed one-
purpose authorization cards from a large majority of the em-
ployees. At trial the General Counsel offered, through sponsor-
ing witnesses, 80 authorization cards (signed as of August 26).
Naomi objected to only 23. Commendably, Naomi’s counsel,
agreeing that the evidence establishes a card majority, concede
the point and suggest that “the ALJ need not resolve the authen-
ticity of the twenty-three cards to which Respondent objected at
trial.’’ (Br. 90–91.) I concur with Naomi’s suggestion.5
On August 26 Burnett and Skinner went to the plant and at-
tempted to speak with Plant Manager James Miller, but Miller
was out. Overhearing an employee say that Controller Steven
Fowler was present, Burnett asked to see Fowler, advising the
receptionist that she and Skinner were with the Union, that the
Union represented a majority of the plant’s employees, and that
she and Skinner were there to ask for recognition. Burnett gave

dent Naomi. Apparently because the testimony of days four and seven
each exceeded 300 pages, the court reporting service split each of these
days into 2 volumes. I have restrung them into single volumes so that
each day of testimony constitutes a single volume of the transcript.
5 Counsel apparently (and unfortunately) did not alert the General
Counsel that Naomi intended to concede the point, for the General
Counsel, on brief, went through the tedious process of compiling the
record references establishing the validity of the Union’s card majority.
the receptionist one of her business cards. In circumstances
indicating that the receptionist went to notify Fowler, the recep-
tionist returned shortly and reported that Fowler did not wish to
see them.
That same day, Vice President Lumblad called CEO Gottdi-
ener and informed him, based on a report from Plant Manager
Miller, that union representatives had come to the plant and
presented a “petition’’ announcing that the Union had signed
enough employees to have an “election.’’ (7:1456, 1479–1481.)
Miller confirms that he reported the visit to Lumblad. (4:855,
976.)
Leaving the plant that August 26, Burnett and Skinner went
directly to the NLRB Region 11 office in Winston-Salem where
they filed the Union’s petition (GCX 32), docketed as Case 11–
RC–5954, for an election to represent, basically, Naomi’s pro-
duction and maintenance employees. (3:646, 658.) On Septem-
ber 20 the Regional Director approved a stipulated election
agreement by which the Union and Naomi agreed to an October
20–21 (one voting period each day) election in the following
bargaining unit (CPX 1):

All production and maintenance employees, including hourly
mechanics, janitors, quality control and warehouse employees
employed by the Employer at its Zebulon, North Carolina fa-
cility; excluding all office clerical employees, professional
employees, salaried mechanics, salaried warehouse employee,
guards and supervisors as defined in the Act.

Before the election, Naomi officials mailed letters to em-
ployees, gave speeches, and met with employees in both small
and large groups, to express the Company’s position on the
election issues. This effort apparently began with the Septem-
ber 7 letter (RX 13) from Plant Manager Miller (4:873) in
which Miller informed employees of the Union’s election peti-
tion, enclosed a copy of the petition (4:874), notified them there
would be an NLRB-conducted election in 4 to 6 weeks, and
advised that supervisors and managers would be providing
employees with “a great deal of information about the union
and the upcoming election.” The employees were urged to
examine all the facts before voting. As I discuss in a moment,
unfair labor practice and interference allegations are directed
toward some of the communications.
Of the 106 employees eligible to vote in the October 20–21,
1993 election (GCX 1g at 1; GCX 61), 55 voted No, 47 voted
Yes, and only 1 cast a challenged ballot. (GCX 1g.) The Union
had lost the election. On October 26 the Union filed eight num-
bered objections to conduct affecting the election, but later
withdrew objection 6. (GCX 1g at 2–3.) For the most part, the
objections parallel the complaint allegations. On December 15
the Regional Director issued his Report on Objections (GCX
1g) in which, after discussing the objections, he directed a hear-
ing on the Union’s remaining objections (1–5, 7–8), and con-
solidated the representation case with the unfair labor practice
case for hearing.
In mid-November 1994 David Skinner, one of the Union’s
organizers, returned to the area, met with interested employees,
and directed employees in the circulation of a prounion petition
in the plant for the purpose of gauging continued employee
interest in the Union. (3:647, 662, 667; 4:710, 712, 736, 761.)
Burnett also returned for a few days in early December 1994.
(3:646–648.) Whatever the results of the Union’s November–
December 1994 gauging of continued employee interest, the
NAOMI KNITTING PLANT 1289
Union apparently decided to pursue the instant allegations
rather than to file a petition in a new case.
The actual relevance, to this case, of the Union’s late 1994
appearance on the scene, as argued by counsel at trial (3:648)
and on brief (the General Counsel at 35; Union at 7), is that the
renewed union activity so alarmed Naomi that it (on pretextual
grounds) fired Mary K. Harris on December 8 in order to cast a
deep chill over any resurgent union activity. Naomi counters
that Harris was fired solely for insubordinate conduct 2 days
earlier, on December 6. (Thus, if the alleged misconduct oc-
curred as described by Naomi, and unless unlawful motivation
is otherwise shown, the General Counsel’s “timing” argument
is misapplied because the sequence of events is natural, not the
unnatural pattern of a stale event followed by union activity
followed by discipline imposed for the stale conduct.)
C. Naomi Waives Motion to Dismiss
When the General Counsel and the Union rested their cases
in chief (7:1418, 1427), Naomi moved to dismiss the 8(a)(1),
(3), and (5) portions of the complaint. (7:1429–1451.) I denied
the motion (7:1451–1452), and Naomi proceeded with its case
in chief. On brief Naomi, in addressing these allegations, reur-
ges its motion to dismiss. I do not consider Naomi’s renewal of
its motion to dismiss because, by proceeding with its case in
chief rather than resting on its motion to dismiss, Naomi
waived its motion to dismiss. Alexandria Manor, 317 NLRB 2,
4 fn. 3 (1995); AutoZone, 315 NLRB 115, 118 (1994). Accord-
ingly, I have considered the entire record in reaching my deci-
sion in this case.
II. ALLEGED VIOLATIONS OF SECTION 8(a)(1)
A. Threat of Discharge—August 13, 1993—Johnny Wayne
Holder
Complaint paragraph 9(f) alleges, in part, that Supervisor
Holder threatened employees with discharge for engaging in
union activity. Naomi denies the allegation and also the allega-
tion that Holder, during the relevant time, was a statutory su-
pervisor and also Naomi’s agent. Naomi contends that Holder,
a salaried mechanic, was merely a supervisor trainee, without
statutory authority, who resumed his mechanic position on
August 16 when Naomi decided that Holder’s performance as a
trainee did not justify his promotion to supervisor status.
At trial I granted Naomi a running objection to all statements
attributed to Holder, ruling that “whether he’s a supervisor, or
agent, will simply depend upon what the record shows.” (1:39;
2:284.) Thereafter, the parties adduced evidence in support of
their respective positions. I do not need to decide whether
Holder was a statutory supervisor, for it is sufficient if the evi-
dence shows that he was Naomi’s statutory agent. United
States Service Industries, 319 NLRB 231 fn. 2 (1995); Kidd
Electric Co., 313 NLRB 1178, 1180 (1994). I would find it
sufficient here to show agency, but I need not describe the evi-
dence of agency because of my findings on the merits, a matter
I address now.
Knitter Ruth Evans testified that, on August 13, Holder came
and told her that everyone needed a job, that Plant Manager
Miller had said if he found “a union list that—signed, we would
be fired.’’ Evans did not reply, and testified that there was no
such list and that she did not know what Holder was talking
about. (2:290, 297.) Evans remembers that the date was Au-
gust 13 (a Friday) because she wrote it down, but threw away
the note when she arrived home after work. However, she does
not recall the time of day that Holder told her this. (2:289–290,
295–296.) During the objections portion of her testimony, in
describing an event in which Holder drove by the public park
where the employees were meeting with union representatives,
Evans was unable to recall whether the drive-by incident was
before or after the August 13 statement to her by Holder.
(2:301.) In her pretrial affidavit (RX 6), however, Evans places
Holder’s drive-by on September 22. (2:306.) Oddly, Evans was
not asked to date Holder’s statement to her in relation to the
August 5 date that she signed her authorization card. (GCX 9.)
By contrast with her inability to recall the time when Holder
made his statement to her, Evans recalls that she was on her
break and outside the building when she signed the union card.
(2:296.)
Holder denies speaking to any employee about a union peti-
tion, although he did tell some employees in the plant, in rela-
tion to a rumored petition to remove Miller as plant manager,
that employees were not to be signing any petition when they
were supposed to be working. (7:1522–1523.) On this point,
Holder testified persuasively, but Evans did not inspire confi-
dence in her account. Crediting Holder, I shall dismiss com-
plaint paragraph 9(f) as to Johnny Wayne Holder.
B. Solicitation of Grievances—September 22, 1993—Renate
Hord
Complaint paragraph 9(a) alleges that Naomi, by Supervisor
Renate (Renee) Hord on September 22 (and, as discussed later,
by CEO Gottdiener on October 13), “Solicited and promised to
remedy its employees’ grievances in order to discourage their
support for the Union.” In support of this allegation, the Gen-
eral Counsel, as to Supervisor Hord, called first-shift knitter
Annie Ruth Hicks White. As mentioned earlier, Hord did not
testify.
On September 22, White testified, Supervisor Batts directed
White to go to the supervisor’s office for a conference with
Supervisor Hord. In the supervisor’s office, Hord told White
that she wanted to educate White about the Union and its con-
stitution. Presumably Hord began with some comments about
the Union and its constitution, but those comments are not de-
scribed. At some point, apparently after any presentation by
Hord about the Union, Hord asked White what was the problem
that would cause the employees to want to bring in the Union.
White said there were race problems, because none of the su-
pervisors was black. White said she had asked Plant Manager
Miller about this (no date specified), that he had said he would
get back to her with an answer, but that he had not done so.
Moreover, White added, Naomi would offer the janitors promo-
tions to fixer positions before the company made the offer to
more senior employees. Hord said that, as a woman, she could
understand the problem, and that she would get an answer for
White, “but she didn’t.’’ (1:63–64, 67, 119, 130–133, 138,
163–164.)
Hord’s reference to being a woman suggest that she under-
stood White’s second complaint to be one of gender, that pro-
motions to fixers were being offered to low seniority janitors
who, apparently, were all men rather than to higher seniority
knitters who, apparently, were mostly women.
White testified persuasively enough on this, and, as Hord did
not testify, I credit White respecting this incident. As I describe
below, there is evidence that, in the past, Plant Manager Miller
had a practice of inquiring about problems and providing a
suggestion box for employees to use. There is no evidence,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
however, that individual supervisors were ever part of any such
past practice.
Citing Blue Grass Industries, 287 NLRB 274 fn. 4 (1987),
the General Counsel argues that White’s testimony establishes
an 8(a)(1) violation, because it shows that Hord solicited griev-
ances with an implied promise to remedy those grievances.
Naomi counters with citations to support its argument that no
implied promise is shown. Indeed, Naomi argues, White was
complaining that Hord never returned with a response to the
concerns she had expressed.
Although the solicitation or grievances at preelection meet-
ings creates the presumption of an implied promise to correct
the problems, Blue Grass, id., that presumption “is rebuttable
by the employer.’’ Blue Grass Industries, 287 NLRB 274 fn. 4
(1987). White’s account includes the rebuttal in that Supervi-
sor Hord is shown as doing more than soliciting grievances—
she promised White that she would return to her with “an an-
swer.” An “answer” implies the possibility, among other equal
possibilities, that nothing would be changed. Indeed, Hord
never returned with an answer, much less an answer announc-
ing changes favorable to the black employees and to the female
employees. Accordingly, I shall dismiss complaint paragraph
9(a) as to Supervisor Hord.
C. Threat of Discharge—September 24–25, 1993—James
Miller
The balance of complaint paragraph 9(f) (the first part is the
Holder August 13 allegation which I dismissed) alleges that
Plant Manager James Miller, on September 24 and 25, 1993,
threatened employees with discharge for engaging in union
activity. Knitters Doris Jean Hayman and Debra Richardson
testified in support of the allegation.
Hayman, who worked on the second shift, was an open sup-
porter of the Union during the campaign, wearing union insig-
nia and union T-shirts, hats, and banners. (1:183.) Although
Hayman did not so specify, apparently she did not begin wear-
ing the union insignia and such until after the Union filed the
representation petition on August 26. She also attended union
meetings and solicited employees to attend union meetings and
to sign union cards in the restroom and during breaks. Accord-
ing to Hayman (1:197), she did no campaigning on “Company
Time.’’ Plant Manager Miller testified that Supervisor Hord
had reported to him that Hayman was away from her job and
work area campaigning and interfering with employees who
were trying to work. Hord asked Miller to speak to Hayman.
(4:901–904.)
First-shift knitter Debra Richardson’s duties required her to
remain by her machines except when she went to the restroom.
(2:359–360.) After signing a union card, Richardson testified,
she did nothing more on behalf of the Union. (2:339.) Although
she did wear a union pin (2:359). Supervisor Batts testified that
he observed Richardson leaving her work area more than once
to talk with employees in other areas, and on one of these occa-
sions her machines stopped running. Batts told her not to leave
her job. When she continued, he reported the matter to Plant
Manager Miller. (7:1545–1547.)
On September 24 Hayman was called to a meeting with
Miller and Hord. On this matter, I generally credit Miller, who
testified persuasively, although Hayman’s version is consistent
with Miller’s. Miller told Hayman that he understood she had
been out of her work area several times, interfering with others
who were trying to work, that she needed to stop, that if she
wanted to campaign it would have to be on her time, not com-
panytime, and that if she continued, she would no longer work
at Naomi. When Hayman responded that she had not been
campaigning, Miller said, “Listen to me. If I hear it again, you
will no longer work for this Company.” Miller made no refer-
ence to the Union. (1:196, 218–219, Hayman; 4:904–905,
Miller.) Before this meeting, Miller had told employees that,
while they could express their opinions during the campaign,
they had to do it on their time, not Naomi’s time. (4:907, 960.)
Plant Manager Miller, in the presence of Supervisor Batts,
held an essentially similar counseling with Debra Richardson
about the same date. (Richardson dates it as September 25, but
that date was a Saturday.) Following Miller’s counseling ses-
sion with Richardson, Batts had no further problem with
Richardson’s leaving her work area and interfering with others.
(2:340, 360, Richardson; 4:905–907, Miller; 7:1547–1549,
1574–1575, Batts.)
Finding no unlawful threat of discharge in Plant Manager
Miller’s counselings of knitters Doris Hayman and Debra
Richardson (and having earlier dismissed the Holder portion of
complaint par. 9(f)), I now shall dismiss complaint paragraph
9(f) in its entirety.
D. Loss of Benefits Threats—Steven Fowler and James Miller
1. Introduction
As two allegations are closely related, I consider them to-
gether. The complaint alleges that Comptroller Steven Fowler
(on September 30 and on October 1) and Plant Manager James
Miller (on October 6, by letter) threatened employees that, if
they selected the Union as their bargaining representative, bar-
gaining “would start from scratch’’ (par. 9c), and (par. 9d)
threatened employees “with loss of benefits’’ if they selected
the Union.
Miller’s one-page letter of October 6 to employees is in evi-
dence. (GCX 12.) The bracketed portion in the H. K. Porter Co.
quote appears in the letter, and I have not corrected minor
modifications of the quoted Supreme Court’s language, 397
U.S. 99 (1970), about “it hoped’’ [“hopefully’’ in the original]
or “MUTUAL’’ [lower case in the original]. Miller’s letter
states (GCX 12):

In the discussions we recently had about the collective bar-
gaining process, it was explained that a result could be that
your wages/benefits could go up, remain the same or go
down. Also, we discussed that in this bargaining process,
your wages/benefits to be NEGOTIATED, starts at ZERO
and your current wages/benefits can be frozen until the bar-
gaining process is complete. THERE ARE NO
GUARANTEES.

There is one other significant factor about collective bargain-
ing we feel is important for you to know. Although, the com-
pany will bargain in good faith to reach agreement on
“MANDATORY SUBJECTS” of bargaining, there can be no
contract until we reach agreement. The company can say
“NO’’ to any substantive proposals made by the Union.

In the H. K. PORTER CO. case, the Supreme Court of the
United States made the following point very clear:

“The basic theme of the [NATIONAL LABOR
RELATIONS] Act was that through collective bargaining, the
passions, arguments, and struggles of prior years would be
channeled into constructive, open discussions leading, it
NAOMI KNITTING PLANT 1291
hoped, to MUTUAL agreement. But it was recognized from
the beginning that agreement might in some cases be impos-
sible, and it was never intended that the Government would in
such cases step in, become a party to the negotiations and im-
pose its own view of a desirable settlement.”

In other words, the company has the right to say “NO’’ and
the only way that any proposals become reality is if the com-
pany agrees.

Further, it should be pointed out that a study done several
years ago indicated that 41% of first contracts were never
reached.

Think about how much easier your work life will be if you
VOTE “NO’’ on October 20th and 21st.
2. Steven Fowler—September 30—October 1, 1993
Miller’s October 6 letter begins with a reference to the “dis-
cussions we recently had . . .’’ Annie Hicks White (1:68–69,
76, 81, 138), Doris Hayman (1:197–198, 219–220), and Robin
Hayman (2:255, 269–270), described, in a very limited fashion,
remarks which Comptroller Fowler made to them in small
group meetings (around five or six employees) during Septem-
ber 30–October 1, 1993. Their description is that Fowler used
key words found in the October 6 letter.
Thus, White asserts Fowler said that at bargaining, every-
thing would be “frozen” and bargaining would “start from
zero.” White identified a reported case which Fowler distrib-
uted at the meeting. The copy (GCX 4) is of Automation Divi-
sion v. NLRB, 400 F.2d 141 (6th Cir. 1968). White testified that
Fowler could have distributed a two-page memo (RX 1), dated
September 30, to all employees from Plant Manager Miller.
White received the memo at some point, but she is not sure
whether it was at that meeting.
Doris Hayman states that Fowler said bargaining would start
at zero, “and we might get more than what we was making, or
we might get less,’’ and that nothing was guaranteed. Robin
Hayman claims that Fowler said, in the only statement she can
recall, that “if the Union came in that we would go back to
zero.’’
There is no dispute that Comptroller Fowler died before the
trial. Attorneys Dent and Johnson represented that the date was
in early December 1994. (4:900; 7:1410.) As no party disputes
that representation, I accept it as fact. During NLRB Region
11’s investigation of the charges in the case, Naomi submitted a
three-page affidavit (the oath administered by a notary public
on January 20, 1994) of six numbered paragraphs. Over objec-
tion, I received Fowler’s affidavit in evidence. As Fowler was
dead, and as no other management person attended the two
meetings which Fowler held with employees, Naomi would be
unfairly prejudiced without the admission of the affidavit. See
Weco Cleaning Specialists, 308 NLRB 310, 311 fn. 7, 314–315
(1992); Doral Building Services, 266 NLRB 1215, 1217–1218
(1983); and FRE 804(b)(5). After stating that he has been the
comptroller of Naomi for 19 years, Fowler, in his affidavit,
reports (RX 18):

2. In my position as Comptroller, I held a number of
small group meetings with some of Naomi Knitting’s em-
ployees during the Union’s pre-election campaign. On
September 30 and October 1, 1993, I met with approxi-
mately 6 to 7 employees, once in Naomi Knitting’s labora-
tory and the other time in the canteen.
3. At both meetings, I talked about what the law re-
quired of the Union and the Company during the campaign
period. I also described the collective bargaining process,
which would control in the event the Union won the elec-
tion. In particular, I told the employees that during collec-
tive bargaining everything is negotiable. I said there were
no guarantees in the collective bargaining process, and
employee benefits resulting from the negotiations could go
up, could go down or could remain the same. I never told
the employees that their pay or benefits would necessarily
go down if the Union won the election.
4. I spoke about the lack of guarantees in the process
because I and other management employees learned that
Naomi Knitting’s employees had been told by Union rep-
resentatives that, if the Union won the election, all em-
ployees would receive significant pay raises. I wanted to
convey to the employees that no one could guarantee that
Naomi Knitting would give them higher wages or that
anyone could predict the outcome of benefits negotiations.
5. The talk I gave to employees mirrored the state-
ments made by James Miller, Naomi Knitting’s Plant
Manager (“Mr. Miller”), in a letter he wrote to Naomi
Knitting employees. See letter from Jim Miller, dated
September 30, attached hereto. This letter and my discus-
sions centered on the rights and obligations of both the
Union and management during the collective bargaining
process and made specific reference to the case law. I
specifically saw to it that I confined by statements to what
the law allows.
6. These meetings lasted approximately 20 to 30 min-
utes. At the end of each meeting, I asked the employees
whether they had any questions about what we discussed. I
cannot recall what questions were asked, but I attempted
to answer them as best I could, still keeping my comments
within the boundaries of the law.

In considering Fowler’s affidavit, I have weighed the fact
that it probably was drafted with the assistance of someone
representing Naomi, that it contains some generalities and con-
clusory statements, and that it generally favors Fowler’s self
interest as well as Naomi’s interest. However, at points Fow-
ler’s affidavit is specific, including the dates and length of his
meetings, the number of attendees, and the topics covered.
Respecting topics, Fowler cites Miller’s letter of September 30.
Although a copy of the letter is recited as being attached to the
affidavit that was submitted to NLRB Region 11, no copy of
the letter is attached to RX 18. Even so, as the only September
30 letter in evidence is that of Miller (RX 1), I find that Fow-
ler’s reference is to what eventually became RX 1. And that
leads to the next question.
In his affidavit, Fowler asserts that his remarks to employees
“mirrored” the statements Miller made in his September 30
letter. Thus, Miller’s letter, or memo, states that, in bargaining,
Naomi does not have to agree to anything, that there are no
guarantees, that collective bargaining is a “give and take proc-
ess” (asking employees what employee benefits or wages
would the Union give up in order to get a dues-checkoff
clause), and “In other words, as a result of the collective bar-
gaining process, you could get more . . . you could stay the
same . . . or you could get less” (RX 1 at 1.) This last quotation
is nearly an exact quote from the testimony of Doris Hayman.
(1:198.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
There is nothing in Miller’s September 30 letter about “fro-
zen” or starting from “zero,” although there is in his letter of
October 6. What happened, I find, is that two of the General
Counsel’s witnesses (White and Robin Hayman), forgetting
what Fowler said, inadvertently substituted Miller’s October 6
comments. Accordingly, I find that Fowler’s affidavit is a
more reliable report of what he said at the two meetings he held
than the reports of Annie White and Robin Hayman. Having so
found, I further find that Fowler’s remarks were not unlawful. I
shall dismiss complaint paragraphs 9(c) and 9(d) as to Steven
Fowler.
3. James Miller—October 6, 1993 (letter)
Return now to Miller’s letter of October 6 (RX 1). Although
they cite different cases, the General Counsel (Br. 11) and
Naomi (Br. 23) generally agree that employer statements about
bargaining from “scratch,” or “zero,” and that current wages
and benefits can be “frozen,” in the context in which made, are
lawful if they merely characterize the realities of industrial life
and the give and take of collective bargaining, as in La-Z-Boy,
281 NLRB 338 (1986) (“start from scratch’’; “there’s no guar-
antee’’), and Mantrose-Haeuser Co., 306 NLRB 377 (1992)
(“typically remain frozen’’) [Mantrose followed in Flexsteel
Industries, 311 NLRB 257 (1993)]. They are unlawful if they
reasonably can be read to threaten that employees would lose
wages and benefits, by voting in a union, because the employer
would reduce all wages and benefits to zero (or at least to any
statutory minimum) when it approached the bargaining table, as
in Capitol EMI Music, 311 NLRB 997, 1008–1010 (1993), and
Teksid Aluminum Foundry, 311 NLRB 711 fn. 2, 717 (1993).
Here, Miller’s October 6 letter (GCX 12) falls in the pro-
tected first group, not in the prohibited second category. In the
critical paragraph, Miller first emphasizes that, in the bargain-
ing process, wages and benefits could go up, remain the same,
or go down, and that wages and benefits to be negotiated (that
is, future levels) start at zero in the collective-bargaining proc-
ess. In the same bargaining process, current wages and benefits
“can be frozen” until bargaining is complete. Finally, “THERE
ARE NO GUARANTEES.” The noncontroversial balance of
the letter is consistent with a lawful context. Like the preelec-
tion videotape the Board found lawful in Mediplex of Connecti-
cut, 319 NLRB 281 (1995), Miller’s October 6 letter is pro-
tected by Section 8(c) of the Act, 29 U.S.C. § 8(c).
Having dismissed the first part of complaint paragraphs 9(c)
and 9(d) (pertaining to Steven Fowler), and finding Miller’s
October 6 letter entirely lawful, I now shall dismiss complaint
paragraphs 9(c) and 9(d) in their entirety.
E. Remedying Grievances—Stephen Gottdiener and James
Miller
1. Introduction
Two related allegations are considered here together. As ear-
lier noted, complaint paragraph 9(a) alleges that, on October
13, 1993, CEO Gottdiener solicited and promised to remedy
grievances of Naomi’s employees in order to discourage their
support for the Union. Complaint paragraph 9(b) alleges that
Gottdiener remedied employee grievances and granted addi-
tional benefits on October 7 and 14. However, the General
Counsel’s evidence, and brief, focus on Plant Manager Miller
as the person who did any such remedying. At trial the General
Counsel moved (7:1404) to add Miller to complaint paragraph
9(b), although counsel, apparently through inadvertence, failed
to move that Gottdiener’s name be deleted. Reserving ruling on
the motion (7:1407), I now grant the motion as the matter was
fully litigated. Moreover, as the motion should have been to
substitute Miller’s name for that of Gottdiener, I now dismiss
complaint paragraph 9(b) as to CEO Gottdiener. That leaves the
issues of soliciting and promising as to Gottdiener on October
13 (complaint par. 9a), and granting benefits on October 7 and
14 as to Miller (complaint paragraph 9(b)).
2. Past practice respecting employee suggestions
Shortly after becoming Naomi’s plant manager in March
1993 (4:852, 923), James Miller continued Naomi’s open door
policy and, until mid-May, held small group meetings with
employees to hear and address any problems. He planned to do
this on a 6-month schedule thereafter. Following the small
group meetings, Miller held similar meetings with entire shifts,
plus scattered meetings with other groups of employees outside
his planned schedule. (4:853–854, 923–925.) Moreover, Miller
continued the preexisting practice of a suggestion box for em-
ployees. (4:853–854, 857, 923–925, 989.) These open commu-
nication procedures generated several prepetition requests for
improvements, such as fans, a tampon machine, and a micro-
wave oven. Miller provided these requested items by July 1993.
(4:857, 934–935.) Annie White reports that, in the past, super-
visors and managers occasionally would hold shift meetings
with employees, and that CEO Gottdiener has attended. In-
deed, at a 1992 shift meeting, White testified without contradic-
tion, Patricia Sutton asked Gottdiener about furnishing picnic
tables for employees to use at breaks and lunch, but Gottdiener
“made no promise” and “said nothing about it.” (1:85.)
At trial (but not on brief), the General Counsel requested that
an adverse inference be drawn from Naomi’s failure to pro-
duce, in response to a subpena (GCX 82, rejected), invoices for
such items. Miller testified that he thought there would be re-
ceipts somewhere for the items. I denied the motion because,
as the record reflects, with Comptroller Fowler dead, Naomi
produced what receipts it could find. (4:937–939; 7:1387–
1392.) Thus, unlike the situation in Teamsters Local 776
(Pennsy Supply), 313 NLRB 1148, 1153–1154 (1994), no re-
fusal to produce existing and available documents was shown.
Instead, as in Champ Corp., 291 NLRB 803, 803–804 (1988),
enfd. 933 F.2d 688 (9th Cir. 1990), no bad-faith failure to lo-
cate and produce was shown. Moreover, not one of the General
Counsel’s employee witnesses contradicted Miller’s testimony
that he had purchased and installed these items. Surely, if no
microwave was delivered and made available, a witness would
have so testified. Finally, Miller testified convincingly as to the
foregoing matters, and I credit him. I reaffirm my ruling deny-
ing the General Counsel’s motion that an adverse inference be
drawn.
3. Stephen Gottdiener—October 13, 1993
a. Evidence
Annie White testified that, at a small group meeting con-
ducted by CEO Gottdiener on October 13 in the laboratory,
employee Patricia Sutton asked whether picnic tables could be
provided for employees, and that employee Kay Downey asked
about getting a larger refrigerator. Employees had asked him
and supervisors in 1992 for picnic tables but received no an-
swer, White testified, and at this meeting Gottdiener gave no
promise. (1:81–86, 139.) Downey testified that she always
asked about picnic tables and a refrigerator at meetings, as early
NAOMI KNITTING PLANT 1293
as when the previous plant manager was there, and that at some
meeting she asked Miller. (4:780, 812.) Miller confirms that, at
a group meeting (date not specified) conducted after the Union
filed its election petition, an employee asked about picnic tables
being provided, and that thereafter a (larger) refrigerator was
delivered as were, still later, picnic tables. (4:925.) [Actually,
as I discuss in the next section, the purchase sequence was in
the reverse order.]
Doris Hayman testified that at an October meeting conducted
by CEO Gottdiener, attended by employees Thelma Crumler,
Kim Manning, Barbara Taylor, Ulysses Yarborough, and Hay-
man [of these employees, only Hayman and Manning testified,
and Manning was not asked about this meeting], Gottdiener
began by saying he was there to talk about problems employees
were having at work. (1:198, 209.) Gottdiener confirms that at
such meetings he asked employees “what the issues were,’’ and
testified that “we were asking lots of questions and why were
we being troubled by a union, what was their fight with us that
they couldn’t get to us and couldn’t get from us, why did they
need an outside party.’’ (7:1488.)
Hayman further testified that, responding to Barbara Tay-
lor’s statement that 25 cents additional per trainee per hour for
training other employees was inadequate, Gottdiener said he
“would try’’ to get the trainers an increase. (1:199, 210–211,
222–223.) Gottdiener testified that he responded by stating, “I
would be glad to take it under consideration” (7:1476), and that
“It was not a bad idea, I would look into it.” (7:1488.)
Hayman also testified that, although picnic tables had been
installed recently outside, there was no way to reach them
without going out the front and coming around to them, and
that such travel used up much of the employees’ breaktime.
(1:199–200, 222.) To this expressed problem, Gottdiener said
he would see that a door was installed providing access to the
picnic tables. (1:199–200.) Gottdiener confirms that the picnic
tables already were in place, but were not in use for security
reasons, in that Naomi was waiting to have a security fence
installed for the area to keep strangers off the property. Gottdi-
ener denies telling employees that a door would be installed.
(7:1474–1475, 1481–1484.)
Hayman further testified, without contradiction, that Gottdi-
ener asked the employees to give him a year to prove “them-
selves,’’ and if at the end of a year the employees were not
satisfied, then he would let the Union in without a fight. (1:200,
210.) Gottdiener could not logically dispute the first half of
this point, for in Naomi’s first campaign speech (RX 17), deliv-
ered by Plant Manager Miller between Miller’s September 7
letter (RX 13) and a September 16 letter (RX 14) from him to
employees (4:882), Miller told employees (4:878; RX 17 at 5):

I ONLY ASK THAT YOU JUST GIVE OUR
MANAGEMENT TEAM HERE THE CHANCE. We have
to change. The business climate today is very fluid, and we
must remain flexible. The very structure of third party in-
volvement slows the changing process, and we must remain
flexible to survive. If you vote NO on October 20th and 21st,
and give me and my management team a chance to win your
trust and loyalty, it is only for twelve months (just ONE
year).!! You may not know but the law requires that twelve
months pass before another election can be held. If, after that
twelve month period we have not deserved your trust and loy-
alty, then you can file a petition to bring the union in again.

Naomi observes (Br. 7), as I discuss in the next section, that
the receipt for three picnic tables, purchased by Miller, is dated
October 7. (GCX 49.) Naomi implies that, as the purchase oc-
curred before the October 13 meeting, Gottdiener would not
have promised to install the tables. This argument apparently
addresses Annie White’s testimony. (Recall that Downey,
listed by White as present at the lab meeting, attributes the
statement to Miller who, in turn, concedes that at some meeting
an employee asked about picnic tables.) Actually, on brief the
General Counsel does not rely on White’s testimony for support
of this allegation, but on Hayman’s. Hayman testified that the
picnic tables arrived before the October 13 meeting, and that
Gottdiener promised to install an access door so employees
could use the tables as soon as a security fence could be
erected.
b. Conclusions
The General Counsel’s evidence in this area is confusing,
with the witnesses giving testimony which, if not contradictory,
is either inconsistent or at least unsupportive. Manning was not
even asked about the October 13 meeting, yet Hayman lists her
as one of those present when Gottdiener supposedly promised
to install a door and to “try” to raise the pay for trainers. As for
the training wage rate, only Hayman testified on the point, and
no such increase was implemented before the election. Finding
Gottdiener’s version more reliable than the disjointed testimony
of the employees, I shall dismiss complaint paragraph 9(a) as to
Gottdiener for October 13. Having previously dismissed the
first half of paragraph 9(a), I now dismiss complaint paragraph
9(a) in its entirety.
4. James Miller—October 7 and 14, 1993
a. Evidence—picnic tables and refrigerator
As the General Counsel observes (Br. 9), the dates of Octo-
ber 7 and 14, 1993, correspond to invoice dates for Miller’s
purchase of the picnic tables on October 7 (GCX 49) and the
refrigerator on October 14 (GCX 50). Miller testified that he
purchased the items for employee use, in effect, on his own
authority. (4:925–927, 934, 994.) Miller testified that he re-
ceived requests for a larger refrigerator from employees in June
(and even earlier), at least 4 months before the purchase, and
this is supported by a June 5, 1993 employee suggestion form
(RX 19) dropped in the employee suggestion box. (4:858, 908,
930.) Miller testified that, almost immediately after receiving
the June 5 suggestion, he decided to purchase a larger refrigera-
tor. (4:908–909.) The old one was a small capacity table model
(1:201; 4:908, 930–931), and the new one is a 9.5 cubic foot
floor model (GCX 50).
What accounts for the delay from Miller’s asserted June
1993 decision to purchase the refrigerator and the timing of the
purchase of the picnic tables? According to Miller, he was
unable to find a reasonably priced refrigerator before the Octo-
ber 14 purchase “on our doorstep” in Zebulon, a location he
had “never really thought to look,” at $100 less than anywhere
else. (4:909, 929–930.) ($259, plus tax. GCX 50.)
Respecting his decision to purchase the picnic tables (and as-
sociated patio umbrellas), on October 7 at a before—tax cost of
$390 (GCX 49), Miller offers no reason for the decision or its
timing except as might be suggested by his testimony that an
employee, at one of the postpetition meetings, asked whether a
picnic table could be provided. (4:925.) At some point, Miller
assertedly spent 2 to 3 weeks making a cost comparison (visit-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
ing two stores), before making the October 7 purchase. (4:926.)
As the invoice reflects (GCX 49), the picnic tables were bought
at the same local hardware store (Lowe’s) where, 1 week later,
Miller purchased the refrigerator. As Miller did not tell the
requesting employee that he already had decided to purchase
the picnic tables, I find that he decided shortly after the meeting
at which the request was made, and that several days later he
purchased the picnic tables.
Similarly, in line with Downey’s testimony, I find that at one
of the preelection meetings, possibly the same one Miller con-
firms respecting the request for a picnic table, Downey asked
Miller about a larger refrigerator. Miller does not assert that he
announced at any meeting that he had decided to purchase a
larger refrigerator. This failure, plus the lengthy delay, persuade
me that, contrary to his testimony, Miller did not decide to pur-
chase the refrigerator until about early October 1993.
b. Conclusions
An employer who has had a past practice and policy of solic-
iting employee grievances may continue to do so during an
organizational campaign. House of Raeford Farms, 308 NLRB
568, 569 (1992), enfd. mem. 7 F.3d 223 (4th Cir. 1993). How-
ever, an employer may not significantly alter its past manner
and methods. House of Raeford Farms, id. If the employer
proceeds in accordance with its established custom, then it may
grant those benefits which are consistent with its established
custom. Indeed, the law requires that it proceed as if a union
were not on the scene (although certain exceptions are applica-
ble to wage increases). Atlantic Forest Products, 282 NLRB
855, 858 (1987).
Did Miller proceed here as he would have done had there
been no union on the scene? I find the answer to be, No. First,
other than Miller’s word, there is no documentary evidence that
he made a decision in June to purchase a larger refrigerator.
Because such documentation was not shown to be part of the
custom, I attach little weight to this factor. In any event,
Miller’s own past practice respecting the microwave and other
items indicates that he took no more than 2 months to purchase
and install the items. Here the refrigerator was purchased some
4 months after his purported decision. While that difference is
not insurmountable (particularly since Naomi apparently made
no announcement seeking to capitalize on installing the refrig-
erator), Miller’s naked testimony was unconvincing. And the
bottom line is just that—I am unpersuaded by Miller. As to the
refrigerator, therefore, I find that no purchase would have been
made in the foreseeable future had it not been for the Union’s
presence and the pending election. Thus, I find that Miller pur-
chased the $259 refrigerator on October 14 to persuade em-
ployees to vote No in the election. By Miller’s conduct, Naomi
violated Section 8(a)(1) of the Act. House of Raeford Farms,
308 NLRB 568, 569–570 (1992).
Respecting the picnic tables, the matter is somewhat compli-
cated by the fact that the tables, although delivered, were not
available before the election. While that may have caused some
confusion among some employees, Gottdiener told employees
that a security fence had to be installed before the tables could
be used. (7:1483.) Had this been the first request by employees
for picnic tables, followed by a routine purchase and installa-
tion, in line with established custom, no violation would be
shown. Here, however, employees had been asking for picnic
tables for 2 or 3 years, even asking Gottdiener himself at a 1992
shift meeting—all to no avail. Once the Union filed its election
petition, however, Naomi’s attitude changed and, at the first
employee request, Miller moved with alacrity to get the picnic
tables and patio umbrellas delivered. When Miller did so,
Naomi violated Section 8(a)(1) of the Act, as alleged in com-
plaint paragraph 9(b).
F. Threats to Withhold a Scheduled Pay Increase—October 13,
1993
1. Introduction
Complaint paragraph 9(e) alleges that, on October 13, 1993,
Vice President Greg Lundblad and, separately, Plant Manager
James Miller “Threatened to withhold a scheduled pay raise in
order to discourage its employees’ union activities.” Pursuant
to a March 9, 1995 notice (GCX 1gg), at trial the General
Counsel moved to add CEO Gottdiener to the allegation. I
granted the motion. (1:15.) On brief the General Counsel ad-
dresses the allegations as to Lundblad and Gottdiener, but not
as to Miller. Miller denies that he made any such threat. (4:913,
993.) Testimony by knitter Kay Frances Downey possibly was
elicited in support of the allegation, but Downey simply asserts
that, in response to a question whether employees were getting
a COLA in January, Miller said “Not at this time.” (4:799,
816.) That testimony does not constitute a threat as alleged.
Accordingly, I dismiss complaint paragraph 9(e) as to Plant
Manager Miller.
2. Greg Lundblad
It is undisputed that employees at Naomi historically have
received any cost-of-living allowance (COLA) in January, and
that practice held true for January 1994. Vice President Lund-
blad testified that in June 1993 he and CEO Gottdiener decided
to modify that historical review process (the Asheville plant’s
schedule had been July 1) in order to conform to the September
30 closing of Andrex’s fiscal year. (7:1621–1622.) Based on
this decision, Lundblad posted a June 28 memo (RX 33) to the
Asheville employees announcing both a wage increase, effec-
tive July 5, and the fact that henceforth the annual review and
raise increase would be geared, retroactively, to the September
30 closing of Andrex’s fiscal year. (7:1622–1623.) Lundblad
testified that no similar notice was given at this time (June 28)
to the Naomi employees, because there was no need to do so
inasmuch as Zebulon’s normal increase would not come until
January. (7:1624.)
There is a conflict, mostly immaterial, between Lundblad
(7:1624, 1630) and Miller (4:912, 961–963, 989–991) over
whether Lundblad told Miller of this decision in July, per
Lundblad, or not until the fall, per Miller. In any event, Miller’s
version tends to confirm that no announcement was made at
Naomi before Lundblad spoke to the employees there during
the preelection period.
As we know, between the June 1993 decision (to key annual
COLAs to the September 30 closing of Andrex’s fiscal year)
and any probable late September 1993 announcement to the
Naomi employees at Zebulon of the new schedule and COLA
effective about October 1, the Union filed its August 26 elec-
tion petition. During the preelection period, Lundblad acknowl-
edges that he spoke to both small and large groups of Naomi
employees (7:1620, 1625), that he was asked at one of the
meetings if the employees were going to get their January pay
raise (7:1620), that he responded and, not wanting to tell only
one group, he probably (7:1630–1631) told others as well.
NAOMI KNITTING PLANT 1295
Annie White testified for the General Counsel in support of
the allegation. There is little difference between White’s ver-
sion and that of Lundblad. Although White does not include
the reference to negotiations with the Union, as described by
Lundblad, I find that Lundblad so spoke. A composite of their
testimony is: Lundblad told employees that the Asheville em-
ployees had received a COLA effective October 1 based on a
new policy linked to the September 30 closing of Andrex’s
fiscal year, that the Zebulon employees also were supposed to
have received one in October, but because the Union was trying
to come in the Zebulon employees would not be given one
because the wage increase, although scheduled, had not been
announced before the Union filed its petition, that if the Union
won the election the Union might want to negotiate for benefits
other than a pay increase, and that if Naomi were to give the
scheduled October COLA to the Zebulon employees it could
create the appearance that Naomi was trying to bribe the em-
ployees. (1:88–91, 141–143, White; 7:1620, 1625, 1629–1630,
1632–1634, Lundblad.)
3. Stephen Gottdiener
Although Gottdiener denies addressing the COLA subject
with employees (7:1476–1477), I credit Gordon Driver and
Ernestine Smith that he did. As modified by cross examination,
Driver testified that, at a meeting with the whole first shift on
October 13, Gottdiener said Naomi had been considering a
bigger than usual COLA, effective that October, but he could
not do anything until after the election. (2:312–313, 318–321.)
Smith, now retired but then a first-shift employee, testified
that (Smith could not recall the date of the meeting), Gottdiener
told employees that Naomi had “planned’’ to give employees a
raise earlier, but because of the union matter no raise would be
given until later. (3:591, 593.)
4. Discussion
Strangely, the General Counsel, citing no case authority, lim-
its her legal argument to a terse statement that the remarks of
Lundblad and Gottdiener “constitute a violation of Section
8(a)(1) as alleged in paragraph 9(e) of the complaint.” Citing
Advo Systems, 297 NLRB 926 fn. 3 (1990), and Progressive
Supermarkets, 259 NLRB 512 (1981),6 the Union argues that a
violation, as alleged, is established because Naomi placed the
“onus” of the postponement on the Union, even to the point of
saying that the Union might negotiate for something else. The
Union also improperly argues unlawfulness because (citing no
record support) the announcement was at the only plant where
union activity was occurring. (Br. 14.) I do not consider the
last argument because it improperly assumes facts outside the
record.
Citing cases such as Hovey Electric, 302 NLRB 482 (1991),
and Retlaw Broadcasting Co., 302 NLRB 381, 381–382 (1991),
Naomi argues that no violation is shown because Lundblad
explained the “Company’s situation’’ by placing whatever
blame was to be cast on the Board’s election rules, not on the
Union.
Agreeing with the Union, I find a violation, as alleged.
Lundblad obviously sought to capitalize on the situation and to

6 Unlike Progressive Supermarkets and AutoZone, 315 NLRB 115,
131 (1994), in our case the complaint does not allege an 8(a)(3) post-
ponement of the COLA, and the General Counsel does not seek such a
finding or remedy. The matter was not litigated as including an 8(a)(3)
allegation.
enkindle animosity among the employees toward the Union,
saying that what they would have gotten on October 1 had the
Union not arrived, now could be negotiated away by the Union
if the Union won the election. Clearly Lundblad sought to
convert this employee animosity, animus he had just created,
into votes against the Union in the forthcoming election.7
(Lundblad succeeded.) According, I find that Naomi, by Lund-
blad’s October 13, 1993 remarks, violated Section 8(a)(1) of
the Act, as alleged in complaint paragraph 9(e). AutoZone, 315
NLRB 115, 123 (1994).
As described by employee Driver, CEO Gottdiener’s limited
remark would not be unlawful. Employee Smith’s description
doubtlessly is a condensed report of what must have been either
a longer statement or response by Gottdiener. Nevertheless, the
abbreviated description, consistent with Lundblad’s, unlawfully
blames the Union for the postponement. I therefore find that
Naomi, by CEO Gottdiener’s remark, violated Section 8(a)(1)
of the Act, as alleged in complaint paragraph 9(e).
G. Threat to Withhold Benefits—November 9, 1993 (letter)
Complaint paragraph 9(g) alleges that Naomi violated Sec-
tion 8(a)(1) of the Act when CEO Gottdiener and Vice Presi-
dent Ellen Green, by letter dated November 9, 1993, “Threat-
ened to withhold benefits because employees engaged in union
activities and/or filed charges with the National Labor Rela-
tions Board.” Naomi denies.
The one-page letter (GCX 11; 2:333–335; 7:1472, 1504),
signed by Gottdiener and Green and addressed to Naomi em-
ployees, reads (the General Counsel, Br. 15, asserts that the
fifth paragraph sentence which I bold, cap, and italicize, is the
offending statement):

October 21st and 22nd has [have] come and gone and you as
a group decided by a majority vote that you did not want to be
represented by the International Ladies Garment Workers Un-
ion. Well, the ILGWU does not want to accept your majority
decision. The democratic process the Union claims to be the
foundation of their existence does not seem to please them
when democracy is not in their favor.

After your vote, the Union filed objections to the election with
the National Labor Relations Board (NLRB). The Union
claimed the election was improper and was requesting a re-
run or a new election. Now, the Union has converted the ob-
jections to unfair labor practice charges, (ULP’s) [ULPs] and
appear to be requesting what is called a BARGAINING
ORDER.

Let me explain a Bargaining Order. If the Union is successful
in receiving a Bargaining Order from the NLRB, the com-
pany would be required to recognize the ILGWU as your sole
and exclusive bargaining agent and negotiate a collective bar-
gaining agreement for your wages, benefits and working con-
ditions.

What this means is the Union is attempting to represent you
and bargain collectively on your behalf without winning the
election. The majority decision that you made on October
21st and 22nd will have no standing and you will be repre-
sented by the ILGWU, even though you told them “NO.’’
7 Incited anger needs an outlet, and voting against the Union in the
election would provide that outlet.’’ AutoZone, 315 NLRB 115, 123
(1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1296
The Union has the right to file these charges, but, the charges
have no merit and appear to be another tactic.

We felt it was important that you understand what is occur-
ring at this time and we will continue to keep you informed.
HOWEVER, BECAUSE OF THESE OUTSTANDING
CHARGES, OUR ABILITY TO CHANGE WAGES
AND BENEFITS ARE RESTRICTED UNTIL THE
ULPs ARE RESOLVED. We also know that some em-
ployees in the plant are feeding you selective information
from the Union. REMEMBER, the same employees and the
same Union failed to give you all the facts during the cam-
paign. If you have any questions, concerns, or issues about the
ULPs or the process, please don’t hesitate to ask your local
management team or us when we come down.

Because the Gottdiener-Green letter of November 9 clearly
(even strongly) blames the Union for the “restriction’’ (with no
explanation as to whether the restriction is a prohibition or
merely a requirement to meet certain conditions), I find that it
is coercive. Although Naomi argues that the letter’s discussion
about the Union’s charges and objections is “merely an expla-
nation of Board procedure and the status of the case’’ (Br. 43),
that contention expresses wishful thinking about what the letter
should have described. Unfortunately for Naomi, the letter says
nothing about Board law setting the conditions under which
wage and benefit changes can be made in the postelection pe-
riod during the pendency of objections to an election. Instead of
explaining that any changes during the pendency of objections
must conform to restrictions set by the Board, Naomi blames
the Union’s “outstanding charges” as the reason why Naomi’s
ability to change wages and benefits is restricted “until the
ULPs are resolved.” An employee reading that could well con-
clude that the Union’s charges might prevent his receiving a
January 1994 COLA until later, perhaps many months later.
That the employees actually received the January 1994 COLA
(and, in accordance with the new schedule, one in October
1994) is of no moment when evaluating the statement’s capac-
ity for adverse impact on employees in early November 1993.
Accordingly, I find that Naomi, by the offending statement in
the Gottdiener-Green letter of November 9, 1993, violated Sec-
tion 8(a)(1) of the Act, as alleged in complaint paragraph 9(g).
H. Interrogation About Union Activities—June–December 1994
1. Introduction
Complaint paragraph 9(h) alleges unlawful interrogation.
Added at trial by amendment (GCX 1gg; 1:15), as the amend-
ment was amended (1:16–17), paragraph 9(h) alleges that
Naomi violated Section 8(a)(1) of the Act when then Human
Resources Manager Barbara Alston, in June or July 1994 “(one
instance)” and in late October or early November 1994 “(one
instance),” and when consultant Frank Carter, an alleged agent,
in late October or early November 1994, and again in Decem-
ber 1994, interrogated employees concerning their union activi-
ties and the union activities of other employees. Naomi denies.
2. Barbara Alston—June–July 1994
Knitter Annie White testified in support of this allegation.
As earlier noted, this incident is alleged by oral amendment at
trial. (1:16–17.) Because Naomi had no advance notice of the
allegation (1:9), and no opportunity to confer with Alston, no
longer a Naomi employee, before having to cross examine
White (1:11), Naomi was granted the right to postpone its cross
examination on this topic with the General Counsel having to
produce White later if Naomi desired to exercise its right to
cross-examine her as to this incident. (1:17, 157.) Naomi ap-
parently elected not to ask that White be recalled for this pur-
pose.
White’s unrebutted testimony is that Alston, approaching
White on the work floor in about June or July 1994, asked
White (if any preliminaries occurred, they are not described), in
the presence of Stephanie Lane (apparently another knitter),
“What happened about the Union?’’ White answered, “We
would have been better off had the Union come in.’’ (1:108–
109.) Lane did not testify. White, who distributed authorization
cards before the petition was filed, acknowledges (1:125) that,
after the Union filed its election petition, she made no secret of
her support for the Union.
As I discuss in more detail later, after the election Naomi es-
tablished certain employee committees on which one or more
management representatives would be either participants or
advisors. One of those committees was the Selection Commit-
tee (SC), and the employees elected White to serve as one of
the employee members. (1:93–96, 143.) White thereafter inter-
acted with management as part of her duties on the SC. (1:105,
107–108, 145.) Although there is no evidence that White ever
openly wore union insignia after the Union’s petition, she ap-
pears to have been rather outspoken on behalf of the Union.
Certainly the terseness of the single question and answer ex-
change between Alston and White about June or July 1994
suggests that the two were accustomed to speaking with each
other and that Alston was well aware of White’s prounion sen-
timents.
In view of the location of the conversation (work station), its
single-exchange nature, its lack of any suggestion that informa-
tion was being sought to identify or punish union supporters,
that White and Alston were accustomed to speaking with each
other, and that White was an outspoken supporter of the Union,
I find nothing coercive about the incident. In making this find-
ing, I also attach some minor weight to the fact that White, who
is rather tall and seems to be about 38 and in robust health, has
the appearance of someone who would not easily be intimi-
dated by anyone, and not at all by the ambiguous question
asked by the much smaller Alston. Finding no coercion in the
totality of the circumstances, I shall dismiss complaint para-
graph 9(h) as to Barbara Alston for the incident of June-July
1994. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
3. Barbara Alston and Frank Carter—October-November 1994
Patroller Deborah Baines, who served as the Union’s second-
shift observer at the October 1993 election (1:62; 3:466; 4:685),
also served on the SC from 2 to 3 months (3:473, 509). Human
Resources Manager Alston and Frank Carter, a consultant and
alleged agent, were management representatives serving on the
committee. (3:480–481.) In August 1994 Baines, at the invita-
tion of Alston, joined the primary committee—the Design
Team. (3:483, 499, 510; GCX 18m.) Alston and Carter, who
functioned as “facilitators,” would alternate, at times, in open-
ing the meetings. (3:521.) Membership on the Design Team
put Baines in interaction with members of management.
Recall my earlier description that David Skinner, one of the
Union’s organizers, returned to the area in mid-November
1994, met with interested employees, and directed employees
in the in-plant circulation of a prounion petition for the purpose
of gauging continued employee interest in the Union, and that
organizer Burnett returned in December for a few days in that
NAOMI KNITTING PLANT 1297
connection. Baines testified that, at some point between mid-
October to early November 1994, Alston called Baines to Al-
ston’s office where a conversation occurred in the presence of
consultant Carter. Alston, Baines testified, asked Baines what
was going on with the Union. “Nothing I know of,” Baines
replied. Carter said that they had heard the Union was trying to
come back in. Baines said she was not aware of that. That
ended the conversation. (3:502–504, 524.) Carter did not tes-
tify, and Alston was not asked about the incident, except, as a
611(c) witness for the Government, Alston testified that an
employee told her there was a rumor that someone was saying
the Union was coming in. (6:1212–1213.)
Baines testified that, about mid-November 1994, Alston and
James Hartman (who became plant manager around March 1,
1994; 7:1336) asked her if she would be interested in a promo-
tion to supervisor. After thinking about the offer for 2 to 3
weeks, Baines apparently declined. (3:517–518, 523.)
Although Baines, as a member of the Design Team, had in-
teraction with Alston, Carter, and even senior management, the
location of this conversation—in Alston’s office—was more
formal than the plant floor where Alston spoke to Annie White.
Additionally, Alston and Carter double teamed Baines, whereas
only Alston spoke to White. Two questions (counting Carter’s
statement as implying a question, which Baines answered) were
asked Baines, but Alston asked White only one question. How-
ever, there were no followup questions, and no request that
Baines report if she heard of any renewed activity. And noth-
ing in the nature of the generalized questions suggests that
Alston and Carter asked their questions for the purpose of ob-
taining information (such as identities) from Baines on which
Naomi would take adverse action against employees. Finally,
Baines, who appears to be about 5 feet 10 inches tall and in
robust health, would tower over Alston. Under all the circum-
stances, I find that the two questions posed to Baines, an open
supporter of the Union, by Alston and Carter were not statuto-
rily coercive. Sunnyvale Medical Clinic, 277 NLRB 1217
(1985). I therefore shall dismiss complaint paragraph 9(h) as to
Barbara Alston and Frank Carter for the incident of late Octo-
ber to early November 1994.
4. Frank Carter—December 1994
No party briefs this allegation, although Naomi (Br. 47)
mentions the apparent incident in its discussion of the previous
allegation. There is no evidence of a December 1994 interroga-
tion by consultant Carter. Evidence was adduced regarding a
November 30, 1994 meeting of the Design Team at which
Carter, prefacing his remarks that the team need to talk about
communications, reported that there were rumors the Union
was coming in if employees signed a paper, advised members
that such a result could not happen under the law . Carter asked
whether anyone had heard anything about the Union. The em-
ployee members said they had heard nothing. (3:505–507,
Baines; 3:574–575, 579–581, 585–586, McCowan.) Although
the minutes (RX 4) of the meeting include the statement, “A
memo will be posted informing the people that signing a paper
gives the UNION no rights at this time,’’ employee member
Jerry McCowan (3:580) and Alston (6:1215) disavow that the
Design Team agreed to the statement. Alston recalls that the
employees were concerned about the rumor and wanted some
explanation, with Carter saying he would prepare a memo.
(6:1213–1214.)
Plant Manager James Hartman (who was present at the meet-
ing), at first recalling no discussion at any Design Team meet-
ings about the Union (7:1364), testified that the minutes (RX 4)
refreshed his memory that there were rumors at the time about
some union activity at the time, and that Carter said he would
post a notice as stated in the minutes. (7:1366–1368.) Although
Hartman never saw any such posted notice (7:1368–1369,
1372), Annie White testified that she saw one, with Carter’s
name on it, posted on the bulletin board. (1:110–111.)
When asked what allegation the notice-posting pertained to,
the General Counsel replied that it did not relate to an inde-
pendent [8(a)(1)] allegation, but was relevant in showing a
motive for the December 1994 discharge of Mary K. Harris.
(1:111.) Thus, an argument could be made that, based on the
General Counsel’s statement of no relevance to an independent
8(a)(1) allegation, Naomi waived nothing by not objecting later
and that any question by Carter at the November 30, 1994 De-
sign Team meeting should be considered only in relation to the
alleged December 1994 discharge of Harris. Nevertheless, I
consider Carter’s November 30 question (the date is close
enough to December so that there is no variance, and Naomi
failed to object to any variance), because the General Counsel
was expressly addressing the posting, not Carter’s question at
the November 30 meeting. In short, the General Counsel’s
statement regarding relevance would not have misled Naomi so
that Naomi did not object when testimony about the November
30 meeting itself surfaced.
Having found that Carter’s question (I credit the testimony
that Carter asked the question) at the November 30 Design
Team meeting is the likely subject of the allegation of a De-
cember 1994 interrogation by consultant Carter, I now address
the merits of the allegation. Carter’s single question was to the
group (about 10 unit employees; RX 4), followed by several,
perhaps all, of the employees saying “No.’’ No individual was
singled out, there were no followup questions, and no coercive
motive was indicated. Indeed, it appears that the purpose of the
question was whether there was a need to post a notice for the
educational benefit of the employees, and the employee mem-
bers present expressed a need for an explanation. Finding no
element of coercion in the circumstances, I shall dismiss com-
plaint paragraph 9(h) as to the December [November 30] 1994
incident pertaining to Frank Carter. Sunnyvale Medical Clinic,
277 NLRB 1217 (1985).
Having dismissed the components of complaint paragraph
9(h), I now dismiss complaint paragraph 9(h) in its entirety.
II. ALLEGED VIOLATIONS OF SECTION 8(a) (2)
A. Introduction
The initial question here is whether, under Section 2(5) of
the Act, the Design Team, an employee participation committee
created by Naomi after the election, was a permissible “com-
munications device’’ (a “conduit” for ideas and information
generated by “brainstorming’’ sessions) as contended by Naomi
(Br. 63, 76, 80), or, as argued by the General Counsel (Br. 26–
28), a committee established to “deal with’’ Naomi’s employ-
ees and therefore a statutory labor organization. If the Design
Team is merely the former, the relevant complaint allegations
must be dismissed. If the Design Team is the latter, a second
question must be addressed: Did Naomi interfere with or domi-
nate the formation or administration of the Design Team (or
contribute financial or other support to it)? If the answer is no,
Naomi wins. A yes answer results in a finding that Naomi, as
alleged, violated Section 8(a)(2) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
Complaint paragraph 11 alleges that “The Design Team
Committee, and its subcommittees, the Selection Committee
and the Training Committee (the Committees) at the Respon-
dent’s Zebulon, North Carolina, facility, is a labor organization
within the meaning of Section 2(5) of the Act.’’ Naomi denies.
Although paragraph 11’s syntax is confusing, the plural appar-
ently is intended, as paragraph 12 confirms. However, the
briefs focus on the Design Team in the singular. Although the
General Counsel’s proposed order would direct the disestab-
lishment of the two subcommittees as well as the Design Team,
the evidence does not show that a Training Committee was ever
established, and the Selection Committee, as we shall see,
ceased functioning about August 1994.
Complaint paragraph 12 alleges:
12.
Since on or about November, 1993, and continuing at
all times material herein, Respondent did initiate, form,
sponsor, and promote the Committees and has rendered
aid, assistance and support to and has dominated the
Committees by:
(a) Announcing to employees that the Committees
would be set up to implement policies at Respondent’s fa-
cility;
(b) Determining the structure and purpose of the
Committees;
(c) Placing management employees in the Committees,
including, but not limited to, the meeting facilitator;
(d) Holding, conducting, and directing meetings of the
Committees on Respondent’s premises, and providing use
of office equipment to the Committees;
(e) Discussing and taking action on recommendations
of the Committees involving terms and conditions of em-
ployment.

In paragraph 12 of its answer, Naomi admits that it “has ini-
tiated the committees described in Paragraph 11 of the Com-
plaint and that meetings of some of the committees have been
held on Respondent’s premises, but denies that it has rendered
aid, assistance and support to, and/or has dominated those
committees as described in Paragraph 12, subsections (a)
through (c) and (e), inclusive.’’ Naomi further denies anything
not admitted. Complaint paragraph 19 alleges that Naomi, by
the conduct alleged in paragraphs 11 and 12, violated Section
8(a)(2) of the Act. Notwithstanding its admission that it initi-
ated the committees, in paragraph 19 of its answer Naomi de-
nies that it “engaged in any of the acts alleged in Paragraphs 11
and 12 of the Complaint,’’ and further denies that it has vio-
lated Section 8(a)(2).
B. The Design Team
1. Creation, purpose, and structure
During the preelection campaign, CEO Gottdiener testified,
Naomi hired the Weissman Group (TWG), a consulting firm
headed by Norman Weissman, its president, to guide Naomi
through the election campaign. After the election, Naomi re-
tained TWG as a management consultant. One proposal TWG
made after the election was that Naomi establish a design team.
Based on his industry contacts, Gottdiener was familiar with
the design team concept. (7:1477–1478, 1491–1494.)
At trial I granted the General Counsel’s motion to name
Norman Weissman as an agent of Naomi. (2:375, 384, 395;
6:1042; GCX 69.) As part of the evidence offered to show
agency, the General Counsel introduced, over Naomi’s objec-
tion and before Gottdiener testified, an October 28, 1993 letter
(GCX 15) from Gottdiener. In receiving GCX 15 conditionally,
I reserved ruling on the offer. (3:557, 561–565; 7:1395–1396.)
In view of Gottdienier’s testimony concerning his hiring of
TWG (7:1478, 1491), the General Counsel on brief (Br. 16, fn.
11) moves to withdraw the offer of Gottdienier’s October 28
letter. Although I grant the General Counsel’s motion, I shall
not remove GCX 15 from the exhibit folder because that could
create confusion in light of references in the record to the ex-
hibit.
As Weissman outlined to Gottdiener, and as thereafter estab-
lished at Naomi, the Design Team would have a “facilitator.’’
(7:1495.) The facilitator’s function, Human Resource Manager
Alston testified, was to focus the discussion on any of four
items: Production, Efficiency, Quality, and Safety. (6:1110,
1116.) During the initial stages, Weissman or Frank Carter, one
of Weissman’s associates, served as the facilitator. (7:1495.)
One of Weissman’s suggestions was that Naomi hire a human
resource manager who eventually would assume the facilita-
tor’s role. The suggestion was implemented, Gottdiener testi-
fied. (7:1495.) As Alston notes, however, at times Plant Man-
ager Hartman served as the facilitator. (6:1115.)
The purpose of the Design Team was to provide a device to
facilitate communication between management and the hourly
workers. (7:1478, Gottdiener; 7:1627, Lundblad.) After the
decision had been made to create a Design Team, Weissman,
apparently in early December 1993, met with all the employees
and described the concept to them. (7:1494, Gottdiener.) First-
shift employee Shelby Poland credibly testified that Weissman
told employees that employee committees would make em-
ployees a better place to work, and that “some of the employees
would have a say so on everything that went on up there. The
hiring, the firing, and everything else.’’ (3:611–612, 622.)
According to Annie White, Weissman included “the pay raise’’
as one of the topics the Design Team could address. (1:94.)
First-shift knitter Kay Downey, who could not recall whether
the meeting occurred before or after the election, testified that
Weissman (with Gottdiener present), who walked as he spoke,
told employees that different committees would be formed so
that problems could be discussed and to “see if we could better
things in the plant.’’ (4:779, 800–802.) Weissman did not tes-
tify, and these descriptions stand unrebutted.
Those comprising the first group of hourly members of the
Design Team were chosen by a process of nomination of 15
employees, 5 from each shift, at Weissman’s direction. (1:93–
94, White.) As Shelby Poland describes, Miller took the nomi-
nees to a company-paid luncheon at a local restaurant where, in
Miller’s absence, the employees, by voice vote, elected the first
six (two from each shift) hourly members of the Design Team.
As the minutes for the first meeting (January 11, 1994) reflect,
those elected were to serve for 1 year. (GCX 17.) For the fol-
lowing year, and in filling vacancies, notices were posted invit-
ing employees to sign the posting to indicate their interest.
Minutes of the meetings were taken and typed by an office
clerical.
Kimberly Manning, a second shift employee until she left
Naomi in August 1994, testified that she was one of those
elected to the Design Team. (2:370.) At the Design Team’s
first meeting, held January 11, 1994, Weissman served as the
facilitator. (2:374; GCX 17.) Weissman, Manning testified, told
the group that the purpose of the Design Team was to achieve
NAOMI KNITTING PLANT 1299
better communication. One of the primary rules the Design
Team would operate under, Weissman stated, would be that
there would be no votes, and that everything had to be decided
by consensus, which he defined as meaning consent by every-
one. (Thus, Weissman’s reference to “no votes” apparently
meant that decisions would not be based on a majority vote.
The minutes show references to votes to be taken, but decisions
apparently were unanimous, with one possible exception which
I mention later.) The employee members were to relay infor-
mation to and from the employees in the plant in achieving the
better communication. (2:374, 401–402, 427, 451.) The min-
utes for the initial meeting of January 11 list the operating
rules, with the third one providing, “Everything is open for
discussion.’’ (GCX 17.)
2. Operation
As mentioned, an office clerical took and typed minutes of
the Design Team meetings. Copies of the minutes were posted
so that all employees could read them. Employee members
attended meetings during paid time. Initially the Design Team
met twice a month, but eventually the frequency was reduced to
once a month.
One of the first tasks the Design Team tackled was that of
formulating a mission statement. Agreement eventually was
reached on one which emphasized quality and the ability to
meet any goal. (GCX 18a–c.) At the second meeting, 14 poten-
tial committees were listed, with the first of these being the
Selection Committee. (GCX 16.) That committee, or subcom-
mittee, eventually was staffed by volunteers, all hourly em-
ployees, after posting. Those who signed their interest elected
members from among the signers. Annie White was one of
those elected. (1:95–97, 143–144.) The Selection Committee
began meeting about March, but ceased functioning about Au-
gust. (1:98, 144; GCX 18(l).) Although the actual members of
the Selection Committee were hourly employees, the evidence
reflects that Barbara Alston or Frank Carter would serve as an
advisor to the committee, or liaison with the Design Team.
During 1994, as reflected in the minutes (GCX 18; RXs 4,
27–30) and the testimony, the Design Team discussed a variety
of topics. Some of the topics were light, such as Family Day
(RXs 27–30) or keeping the picnic area clean (GCX 18f), to
heavy, such as job bidding (GCXs 18(l); 27) and drug testing,
including random drug testing of current employees (GCX 18j,
k, l, m). The General Counsel argues that the Design Team has
existed, at least in part, for the purpose of “dealing with”
Naomi on wages and conditions of work, and that this is re-
flected in the Design Team’s handling of certain matters, in-
cluding such employee-based proposals as a job bidding sys-
tem, an attendance bonus, and resolution of differing views on
a drug testing program. Additional topics include a no-
smoking policy and an inclement weather policy.
Respecting job bidding, the Selection Committee drafted the
initial proposal and submitted it to the Design Team. Thereaf-
ter, the Design Team and the Selection Committee collaborated
to produce a final version. In this process, the combined team
resolved differences regarding “what job a person would return
to if for some reason they would not stay on a job that they
applied for from the internal posting.’’ (GCX 18(l); GCX 70;
6:1131–1134, Alston.) At the Design Team meeting of Sep-
tember 6, 1994, Alston distributed copies of the “final require-
ments for internal job posting.’’ (GCX 18n.) Presumably the
item distributed was the one-page “Guidelines For Internal Job
Posting’’ which was attached to an October 5, 1994 memo
(GCX 27) to all employees from the Design Team on the sub-
ject of “Internal Job Posting Guidelines.’’ Alston testified that
GCX 27 resulted from the work of the combined committees,
the Design Team and the Selection Committee. (6:1135.) With
copies shown to Gottdiener, Weissman, and Frank Carter, the
October 5 memo reads (GCX 27):

I Attached you will find a copy of the Internal Job Posting
Guidelines that has [have] been adopted by the Design Team
for hourly and Clerical positions at Andrex.

In order to establish these guidelines, The Design Team and
The Selection Committee decided to work as a team on this
project.

Signatures of 10 persons appear at the bottom of the memo.
Among the employees signing was Deborah Baines, one of the
witnesses here (3:496), and managers signing included Greg
Lundblad (the vice president in charge of the Asheville and
Zebulon plants), Jim Hartman, Naomi’s plant manager, and
Barbara Alston, the human resource manager. Thereafter, the
guidelines attached to the October 5 memo (GCX 27) were
included in Naomi’s official policies and procedures. (6:1136,
Alston; GCX 26 at 13.)
Naomi has been plagued by production problems caused by
poor attendance. At one of the Design Team meetings one of
the employee members, Alston testified, suggested that an in-
centive bonus be given for perfect attendance. Adopting this
suggestion, the Design Team obtained Gottdienier’s approval to
give a $20 gift certificate from a grocery store on a month-to-
month basis beginning June 1, with the program’s continuation
depending on whether attendance improved. (6:1118–1120.)
When attendance actually declined, the Design Team agreed
that the program should be discontinued, and it was eliminated
in July. (6:1121–1122; GCX 18g, k.)
The Design Team also agreed on a no smoking policy (GCX
72) which, after posting, Naomi implemented about August 1,
1994. (6:1142–1146, Alston.) Previously, smoking inside the
building had been permitted only in the breakroom. (6:1144–
1145.) When Naomi, by Alston (6:1142), incorporated the
policy (as amplified by Alston) into its official policies and
procedures (GCX 26 at 25), it gave credit to the Design Team
(“has been adopted by the Design Team of Andrex Industries
Corporation which bars smoking throughout the facility’’). The
official policy provides that any employee found smoking in an
unauthorized area “will be subject to discipline, up to and in-
cluding discharge.’’ (GCX 26 at 25.)
The Design Team discussed whether to adopt a drug testing
policy. The minutes first show this at the meeting of June 29,
1994. (GCX 18j.) There was agreement for a testing program
as to new employees, but as late as August 10 there was still
opposition to random drug testing of current employees. (GCX
18(l); 2:427, 452, Manning; 6:1166–1167, Alston.) In early
August 1994 Manning left Naomi. (2:363, 455.) Manning had
been the main opposition to random testing. As of the August
23 meeting, “Most of the team members’’ agreed that random
drug testing was needed. (GCX 18m.) Although the implication
is that the Design Team was not unanimous at that point, the
minutes indicate that the decision was to proceed, with the pen-
alty (rehabilitation or termination) left for future discussion.
(GCX 18m.) Alston confirms that a decision was made by this
date to proceed with both drug testing of new employees and
random testing of current employees. (6:1168.) Thereafter, a
drug testing program was implemented. (6:1165–1166.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
Other matters addressed by the Design Team include the
adoption of the same inclement weather policy that prevailed at
Asheville (those who can get to the plant may work, and an
excused absence for those who cannot make it; GCX 18r; RX
27), and a plan for disbursing the “cardboard money.’’ Before
the Design Team was established, Naomi had a cardboard recy-
cling program. Earnings from the program were placed in a
fund and distributed to employees at year’s end. It is unclear
how the distribution had been made previously, although the
implication is that it was divided equally, but the Design Team
decided that the distribution payments should be smaller for
those who had been employed for less than 6 months. (7:1352–
1354, Hartman; GCX 18(o), (p).)
A substantial topic the Design Team worked on for awhile
was that of revising Naomi’s existing official policies and pro-
cedures (RX 11), and a (very) rough draft was prepared by July
12. (GCX 18k.) However, because Naomi was advised by a
consulting firm that Naomi could be courting legal problems by
having hourly employees working on such a project, manage-
ment withdrew the project (7:1359–1360, 1363) and, thereafter,
assertedly without benefit of the rough draft, Alston prepared a
set of revised policies which became effective January 1, 1995.
(6:1141–1142, 1152–1156; 7:1360; GCX 26.)
Finally, the Selection Committee proposed to Alston that the
premium paid to trainers be increased from 25 cents per hour
per person to $1 per hour per person. (3:472–480, 497–499,
516, Baines.) (Recall that during the campaign an employee
had asked Gottdiener about increasing the premium paid to
trainers.) Alston admittedly conveyed this suggestion to the
Design Team (6:1164), and the minutes for June 7, 1994 (GCX
18h) so reflect. Although management eventually increased the
premium by 25 cents, to 50 cents per hour per person, the deci-
sion apparently was made outside the Design Team. (61164;
7:1476, 1486–1491.) In fact, it appears that the Design Team,
which was to check on the premium levels at other mills, found
that Naomi’s was not out of line. (6:1165.) The implication is
that, because of the survey’s findings, the Design Team made
no recommendation for any change. Nevertheless, manage-
ment doubled the premium. The relevant point, it appears, is
that this was a wage rate topic, and that the Design Team did
pursue the issue to some extent.
C. Conclusions
As mentioned in the introduction, the first issue to be deter-
mined is whether the Design Team is a labor organization
within the meaning of Section 2(5) of the Act, 29 U.S.C. § 2(5).
That section defines the term:

The term “labor organization’’ means any organization of any
kind, or any agency or employee representation committee or
plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work.

In recent years the Board has written detailed opinions con-
cerning whether employee participation committees, under the
facts of the cases, constituted statutory labor organizations.
The controlling decisions of the Board, which itself adheres to
the Supreme Court’s instructive guidance, are Electromation,
309 NLRB 990 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994), and
E. I. du Pont & Co., 311 NLRB 893 (1993).
Although “there is some room for lawful cooperation under
the Act’’ with employee participation committees, du Pont at
893, it appears that if such cooperation extends beyond “brain-
storming,’’ especially on a “pattern or practice,” then the em-
ployer is “dealing with’’ the committee and the committee is
therefore converted into a statutory labor organization if the
“dealing with’’ involves any of the statutory topics. Keep in
mind also that the “wages’’ of Section 2(5) of the Act are not
limited to money, but also includes other forms of compensa-
tion and benefits. du Pont, 311 NLRB 893, 894 fn. 8 (1993).
If labor organization status is found, the second question is
reached, which is whether Section 8(a)(2) has been violated.
Electromation, 309 NLRB at 994; Electromation v. NLRB, 35
F.3d 1148, 1161 (7th Cir. 1994).
Here there clearly was “dealing with’’ on a variety of the
statutory topics. The discussions went far beyond mere “brain-
storming,’’ and concerned such important “conditions of
work’’ as a job bidding procedure and a drug testing program,
the latter including random drug testing of current employees.
As the General Counsel acknowledges (Br. 26), the Board
has left open the issue of whether, for the committee to meet
the statutory test of a labor organization, employees on the
committee must be acting in a representative capacity. Elec-
tromation, 309 NLRB at 994 fn. 20; du Pont, 311 NLRB at 894
fn. 7. Naomi defends on the basis that the employees here were
chosen only by those who volunteered to be on the committee,
and not chosen by the employees they supposedly represent,
there is no required representative status. (Br. 82–83.) Counter-
ing, the General Counsel argues that the situation here (com-
mittee employees checking with plant employees on such mat-
ters as job posting guidelines and drug testing) parallels that in
Electromation at 997. (Br. 26–27.) Agreeing with the General
Counsel, I find that, to the extent such a finding is necessary,
representative capacity existed here.
There is no dispute that employees participate in the Design
Team. Aside from initial statements by Weissman indicating
that the Design Team will address all topics, and even if I dis-
regard the committee’s operational “Rules,’’ which Weissman
laid down at the first meeting of January 11, 1994 (GCX 17),
about “Everything is open for discussion,’’ the pattern and
practice of the Design Team shows that the Design Team exists
for the purpose of “dealing with’’ Naomi concerning many of
the statutory topics. Accordingly, I find that, as alleged in
complaint paragraph 11, the Design Team is a statutory labor
organization.
As the General Counsel points to no evidence showing that
the Selection Committee (which has ceased to function and
may no longer exist) constitutes a labor organization, and as the
Training Committee was never established, I shall dismiss
complaint paragraphs 11 and 12 as to the Selection Committee
and the Training Committee.
Having found the Design Team to have been, at all relevant
times, a labor organization within the meaning of 29 U.S.C. §
2(5), I turn now to the next question of whether there was
domination or interference as prohibited by Section 8(a)(2) of
the Act, 29 U.S.C. § 8(a)(2).8 That section makes it an unfair
labor practice for an employer:

8 For some reason, conclusion par. 19, as I noted in the introduction,
alleges that par. 11 (labor organizations), as well as par. 12 (the con-
duct), constitutes a violation of Sec. 8(a)(2). Labor organization status
does not violate Sec. 8(a)(2) of the Act. Even when a labor organiza-
tion is unlawfully dominated, its status as a labor organization does not
NAOMI KNITTING PLANT 1301

to dominate or interfere with the formation or administration
of any labor organization or contribute financial or other sup-
port to it: Provided, That subject to rules and regulations made
and published by the Board pursuant to section 6, an em-
ployer shall not be prohibited from permitting employees to
confer with him during working hours without loss of time or
pay.

The record evidence, including the testimony of CEO
Gottdiener and employees, such as Kimberly Manning, track
the Board’s language in Electromation, 309 NLRB 990 at 995–
996 (footnotes omitted):

Although Section 8(a)(2) does not define the specific acts that
may constitute domination, a labor organization that is the
creation of management [as was Naomi’s Design Team],
whose structure and function are essentially determined by
management [Naomi, by Weissman and Gottdiener, created
the Design Team, and at its January 11, 1994 first meeting, as
GCX 17 records, Weissman laid out the rules of operation, in-
cluding the rule that “Everything is open for discussion.’’] . . .
. and whose continued existence depends on the fiat of man-
agement [as at Naomi, where the Design Team met on com-
pany property, with members being paid regular time for at-
tending, with minutes kept and typed by office clericals and
posted at management’s direction, and where the committee,
with half its members being part of management, and its
chair, or “facilitator,’’ always a member of or a representative
of management, could be dissolved instanter at Naomi’s
whim], is one whose formation or administration has been
dominated under Section 8(a)(2). In such an instance, actual
domination has been established by virtue of the employer’s
specific acts of creating the organization itself and determin-
ing its structure and function. . . . Thus, the Board’s cases fol-
lowing Cabot Carbon, [360 U.S. 203, 79 S.Ct. 1015, 44
LRRM 2204 (1959)] reflect the view that when the impetus
behind the formation of an organization of employees ema-
nates from an employer [as here] and the organization has no
effective existence independent of the employer’s active in-
volvement [as here], a finding of domination is appropriate if
the purpose [as I have found here] of the organization is to
deal with the employer concerning conditions of employment.

As the Board noted in making a domination finding in du
Pont, 311 NLRB 893, 895–896 (1993), footnotes omitted:

The structural operations of the committees warrant the find-
ing that the Respondent dominated the administration of the
committees. As discussed above, the Respondent ultimately
[as with Naomi’s Design Team] retains veto power over any
action the committee may wish to take. This power exists by
virtue of the management members’ participation [manage-
ment constituted 50 percent of Naomi’s Design Team] in con-
sensus [Weissman defined “consensus’’ to mean unanimous]
decision-making. The committee [as here] can do nothing in
the face of management members’ opposition. In addition,
the record shows that [as with Naomi’s Design Team] in each
committee, a management member serves as either the leader
or the “resource’’ (monitor or advisor) and therefore has a key

violate Sec. 8(a)(2). It is the unlawful domination (complaint par. 12)
which violates 29 U.S.C. § 8(a)(2). See Electromation, 309 NLRB 990,
997 (1992).
role in establishing the agenda for each meeting and in con-
ducting the meeting.

More could be quoted and written, but that is unnecessary.
As alleged, I find that since about December 1993 (complaint
par. 12 alleges about November, but the ambiguous evidence
suggests December) Naomi, by establishing and dominating the
Design Team, has violated Section 8(a)(2) of the Act. The
remedy for domination is an order to disestablish. No doubt
both management and employees at Naomi have benefited from
the communication and results achieved through the Design
Team as it has been created, structured, and operated. How-
ever, Congress, not the Board, wrote the statute, and it is the
Congress that must write any amendment.
III. ALLEGED VIOLATION OF SECTION 8(a)(3)
A. The December 8, 1994 Discharge of Mary K. Harris
1. Introduction
Complaint paragraph 10 alleges that, about December 8,
1994, Naomi fired Mary K. Harris. Naomi admits. Paragraph
20 alleges that the discharge violates Section 8(a)(3) of the Act.
Naomi denies.
There is no dispute that Naomi fired Harris on the stated
ground of insubordination based on alleged conduct at a safety
meeting conducted at the plant 2 days earlier (December 6).
Conceding, in effect, that certain conduct by Harris perhaps
was less than deferential to Human Resource Manager Alston,
the Government and the Union contend that any misconduct
was mild, that it was not insubordination anyhow (as it did not
involve, as in past cases at Naomi, the refusal to obey a direct
order), and even if it was (a different category of) insubordina-
tion, Naomi seized on a minor incident to rid itself of a union
activist following rumors of renewed interest in the Union.
Going even further, the Union argues (Br. 7, 22–23) that Naomi
was additionally motivated to discharge Harris, because the
Regional Director for NLRB Region 11 had just issued, in this
case, the Government’s November 30, 1994, amended consoli-
dated complaint and notice of hearing (GCX 1y) in which, at
paragraph 21, the Government significantly amended the out-
standing complaint by requesting the extraordinary relief of a
bargaining order as part of the remedy for the unfair labor prac-
tices alleged. Thus, the Union argues, and the General Counsel
joins, Naomi’s motivation not only was to eliminate a demon-
strated activist (Harris had been one of the Union’s observers at
the October 1993 election), but to retaliate against union sup-
porters by discharging one of the Union’s election observers.
As will be seen from my description of and discussion of the
material events, any prima facie case of the General Counsel
depends largely on Naomi’s great difficulty in locking onto a
specifically articulated basis for the discharge, and Naomi’s
defense largely depends on the forthright admissions by Mary
Harris. By any account, portions of this case approach the bi-
zarre
2. Facts
a. Knowledge
Knowledge is contested. (As I begin summarizing the
knowledge issue, keep in mind that, depending on whose ac-
count is described later, there were at least two of three persons
involved in the decision to discharge Harris—Plant Manager
James Hartman, Human Resource Manager Barbara Alston,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302
and Supervisor William Batts.) Harris served as the Union’s
first-shift observer at the October 1993 election (1:61–62;
4:684), a fact Naomi declined stipulating knowledge of (4:686),
and appeared at the preelection conference with Union Repre-
sentatives Donna Burnett and David Skinner in the presence of
Plant Manager James Miller and Vice President Greg Lund-
blad. (4:685; 7:1637–1639.) Although Miller left Naomi about
mid-February 1994 (4:852, 867), Lundblad, as we have seen, is
still in charge of the Asheville-Zebulon operation. (7:1618.)
Beginning before the election, Harris wore union insignia and a
union T-shirt, wearing the T-shirt about once a month at work
until nearly May 1994. (4:684, 711, 760.)
On one of the two election days, apparently the first, Harris’
supervisor, William Batts, handed Harris company literature as
Harris, wearing her union T-shirt and other union insignia,
entered the door. (4:711.) Batts denies knowledge of or ever
seeing Harris wearing a union T-shirt. (7:1552.) Although
Batts supervised about 24 employees on the first shift in the
summer-fall of 1993 (7:1543), Harris was only one of seven
knitters who worked for Batts in the front section (7:1579).
Batts also denies being aware that Harris was absent from her
work area to serve as an election observer, testifying that he
had been instructed to remain at the rear until after the voting.
(7:1577.) Crediting Harris, I find that Supervisor Batts ob-
served Harris wearing her union insignia and T-shirt both be-
fore the election and on the morning of the election. I also infer
that Batts observed Harris wearing the union T-shirt on occa-
sion during the next several months.
Although Harris signed the Union’s interest-petition about
November 15, 1994, she concedes that, so far as she knows, no
supervisor or manager was aware that she had signed. (4:710,
712, 736, 761.) Batts denies hearing any rumors, or being told
of any rumors, of renewed union activity. (7:1556, 1574.) In
view of management’s posting of the Design Team’s minutes,
or similar note from Frank Carter to offset rumors that the Un-
ion was “in’’ the plant, it is highly unlikely that Supervisor
Batts was not made aware of the rumors either by the employ-
ees, by seeing the posting, or by management directly. I find
that Batts was aware.
Human Resource Manager Barbara Alston began working at
Naomi on April 4, 1994. (6:1109–1110.) Before arriving at
Naomi, Alston had gained some 16 years’ experience in human
resource management at several companies. (6:1256.) Alston
denies knowledge of any union activity by Harris, and denies
ever seeing Harris wearing union insignia. (6:1259–1260.) As
Harris ceased wearing her union apparel “a little before May’’
(4:760), it is possible that Harris actually stopped before Alston
arrived, or that Alston did not in fact see it on the one day in
April that Harris would have worn it after Alston’s arrival.
There is no evidence that Alston walked by Harris’ work sta-
tion every day, and Harris does not contend that Alston saw her
wearing it. I find the evidence lacking on any direct observation
by Alston.
Although Alston learned of the union rumors in November
1994, there is no evidence that either she or other management
persons focused their attention on Harris. As I described earlier,
Alston and Frank Carter asked Deborah Baines about the ru-
mors. Baines apparently was asked because she was a member
of the Design Team, not because she had been the Union’s
second-shift observer at the election over a year earlier. During
her first week at the plant, Alston was told about the 1993 un-
ion campaign, and about August 1994, consultant Frank Carter
briefed Alston on the pending NLRB litigation. (6:1097–1099,
1107, 1250.) While Alston may have been told the names of the
Union’s observers, it is just as possible that she was not. Alston
testified (6:1259) that she never learned that Harris was a union
supporter.
Hired in September 1993 as Naomi’s production control
manager (7:1336–1337), James Hartman stepped up to plant
manager about late February 1994 (7:1344) after Miller’s mid-
February (4:852, 867) departure. Apparently because Hartman
supervised only six salaried office personnel while he was the
production manager, Hartman testified that he was not involved
in the union campaign. (7:1339–1340, 1343.) So far as the re-
cord shows, this is the first time Hartman has ever been a plant
manager. Hartman’s duties as production control manager took
him to the plant floor several times a day, and at various times
he observed that employees would be wearing union T-shirts.
He asserts, however, that he did not link the shirts to faces in
his memory. (7:1337, 1339.) In fact, Hartman testified, he was
not able to link Harris’ name to her face during the discharge
events until he saw a woman entering Alston’s office on De-
cember 8 and Alston later told him that had been Harris.
(7:1603.) He had heard the November 1994 rumors, but Harris
was not mentioned in any of the rumors. As of the December 6,
1994 decision to discharge Harris, Hartman testified, Hartman
was unaware of any union activity by Harris. (7:1367, 1603–
1605.) Institutionally, I find, Naomi had knowledge of Harris’
1993 to early 1994 union sentiments, as did Supervisor Batts.
There is no direct evidence that Alston or Hartman had per-
sonal knowledge. I later discuss this matter further.
b. The December 6, 1994 safety meeting
On Tuesday, December 6, 1994, Harris was 1 of about 60
employees who attended a safety training meeting conducted in
the breakroom at the Naomi plant beginning at 7 a.m. Atten-
dance was mandatory for employees. For Harris as for most of
the attendees, perhaps all (6:1262, Alston), December 6 was a
scheduled off day. (Well before this date Naomi had switched
to four shifts, A, B, C, and D, of 12 hours each. Harris, whose
C shift worked days, was not scheduled to return to work until
Thursday, December 8.) Alston had arranged for a guest in-
structor, Bernie Farmer, to conduct the training program for all
employees. Farmer is an instructor with the North Carolina
Center for Applied Textile Technology, a state-affiliated opera-
tion which is “under the umbrella of’’ the North Carolina
community college system. (5:1002–1004.) Alston had ar-
ranged for the Naomi training program through Wake Techni-
cal Community College, located in Raleigh, North Carolina.
(6:1261, 1281.)
Alston was present as the employees arrived so that she
could introduce Farmer, explain the purpose of the safety train-
ing program, and to distribute a form (RX 23) for the employ-
ees to fill out. On its face, the one-page form bears the school
name at the top, and in bold, capital letters, the centered title of
the form states, “Continuing Education Registration.’’
There is a question whether Alston fully explained that the
training was required by the State and that it was funded, at
least partially, by the State, and that the school needed the form
to verify attendance, although Alston insists that she so told the
group. (6:1178–1179, 1262–1263, 1282.) I need not resolve
that issue. The relevant point is that Alston explained that the
purpose of the form was (or included) to enable Wake Tech to
enter the employees’ names in the school’s computer so those
NAOMI KNITTING PLANT 1303
who wanted to take a class at Wake Tech later would be regis-
tered in the school’s computer system, and to verify their atten-
dance so that Naomi could pay them for attending the class that
morning. (6:1178, 1277.) Harris understood Alston to explain
the purpose of the form as being to register employees in the
school’s computer in the event they wanted to take future
classes at Wake Tech. (4:692, 708, 721–722, 759.)
Kay Frances Downey, seated at the same table as Harris,
asked Alston why the employees had to fill out the forms. Al-
ston replied that it was for the school, to show that they had
taken a course for so many hours. Downey said nothing further.
(4:783, 810–811.) Farmer testified that all that was needed was
the name and social security number. (5:1015.) There is no
evidence that Alston specifically so limited her instruction re-
garding filling out the form, although she did testify that she
told the employees there were parts they did not have to com-
plete. (6:1264.)
As an atlas reflects, Zebulon is a small town situated about
20 miles east of Raleigh, and Harris lives at Nashville another
small town about 20 miles east of Zebulon. Thus, Nashville is
about 40 miles or so east of Raleigh. Harris testified that she
lives about 48 miles from Wake Tech, but only 15 minutes
from Nashville Technical College. (4:708, 719.) If Alston
meant that Wake Tech would offer other extension courses at
Naomi, as distinguished from classes at its Raleigh campus, she
apparently failed to make that clear. The relevance of this ge-
ography is that it helps explain why Harris was not enthusiastic
about completing, or even signing, Wake Tech’s “registration’’
form.
Farmer prepared a diagram (RX 22) of the breakroom based
on measurements he took there 3 days before testifying.
(5:1007.) At this point the relevance of the diagram is merely to
give us a general idea of the size and shape of the room. (Some
of the testimony is rather wild in estimated distances.) As
shown by Farmer’s diagram, the breakroom is almost a square,
being 35 feet from top to bottom (as one looks at the diagram)
and 29 feet across. Vending machines flank a door (which ap-
parently leads into the plant) on the left to upper left side, a
microwave is at the bottom wall near a door (leading to a patio
outside, 5:1032), and at the top is another door which opens
into a corridor apparently leading to the office area. The upper
right corner of the square is actually Alston’s 12-foot by 13-
foot office, with the door to her office opening from the break-
room. (5:1032–1033.) The employees sat at several tables in
this breakroom.
Seated at a table with Harris were her mother (also a Naomi
employee) Mary Moore, Adam Canady, Kay Frances Downey,
Debra Carpenter, Cynthia Elliott, and Craig Sharon. (4:687–
691, Harris.) Of these, Harris, Downey, Moore, and Canady
testified (as witnesses called by the General Counsel). Testify-
ing on this area as witnesses called by Naomi were Alston (first
as a General Counsel witness under FRE 611(c), then as
Naomi’s witness), Farmer, and Supervisor Batts. Harris testi-
fied briefly in rebuttal, but not on this subject.
There is little agreement on where Harris and her tablemates
were seated in relation to one another, and the evidence is in-
complete in any event. The tables by Harris appear to have
been situated perpendicular to the left wall (RX 12), and any-
one walking or standing on the left side of the room could look
down the length of the Harris table. Harris places herself fac-
ing the bottom or outside wall, with her back toward the top of
the diagram and the area where Alston’s office is situated.
Harris places her mother, Mary Moore, to her right, apparently
at the table’s left end. (4:691.) Moore asserts that she was
seated at the center of the table, with Harris toward the end and
on the side facing Moore. (4:845.) Consistent with the sketch
drawn by Harris (RX 12), and the other evidence, I find that
Harris was seated close to the left end (or plant side) of the
table, with the possibility that someone else was seated to her
right (although not at the short end of the table facing down the
length of the table).
There is little agreement on where Alston and Farmer were
standing during the time Alston was present. It is not necessary
that I attempt to reconcile these substantial differences, for
there mostly is agreement on the critical exchange between
Harris and Alston. That exchange developed as follows. After
Alston had distributed copies of the Wake Tech form (Farmer
assisted in the distribution), Downey, as noted, asked Alston
why they had to fill out the form. Alston said it was to show the
school that the attendees had taken a course for so many hours.
(4:783, 810–811.) Although Harris recalls Downey’s question
to have been whether the form was job related (4:693, 743), I
credit Downey.
At about this point Harris (4:693, 738, 754) and Alston
(6:1179, 1181, 1221, 1264) agree that Harris said:

I’m not going to fill out this form. I don’t want to be here
anyway.

There is a major dispute concerning to whom Harris spoke.
Harris claims that she said this to those seated at her table.
(4:693, 738, 743.)9 Downey supports this version (4:784, 806–
808), but Downey also states that Harris and Alston began
“bickering’’ and that Harris was loud with Alston, saying she
did not want to sign the paper (4:783–785, 795–796, 804–808).
[Downing tends to ascribe the “bickering’’ to Harris’ admitted
question about filling out the paper, a question I describe in a
moment. However, at one point, Downey testified that she
does not recall that Harris ever asked Alston a question. 4:790.]
Neither Moore nor Canady addresses the point. Alston asserts
(6:1179, 1181, 1186–1187, 1205, 1268) that Harris was looking
directly at her, as Alston stood at the end of the Harris table,
when Harris said it, although the “directly’’ contention is not
(6:1208) contained in Alston’s February 15, 1995 pretrial affi-
davit.
Although Batts places Alston at the Harris table, looking
down the length of the table (7:1564), he could not see which
way Harris was facing (7:1565) when she made the remark.
However, from some 4 feet away, he certainly heard Harris’
remark. Batts was “shocked’’ by the loud and “snotty’’ tone of
Harris’ remark. (7:1556, 1565, 1585–1586.) [The record,
7:1555:2, incorrectly renders “snotty’’ as “snooty.’’]
Consistent with the opening statement of Naomi’s counsel
(1:33), guest instructor Farmer asserts that it was “me’’ to
whom Harris addressed her remark, in an elevated voice that
everyone could hear, as he handed her the Wake Tech form.
Farmer responded that it was her choice. (5:1010–1013, 1026–
1027, 1029–1031.) Farmer testified that he did not consider
Harris’ “adamant’’ tone and leaning toward him to be abusive
or a personal affront. (5:1029–1030.) Harris denies that Farmer
ever came to her table (4:738), and Farmer’s version appears
inconsistent with that of Alston.

9 The circumstances call to mind the Psalmist’s prayer, “O Lord, set
a watch before my mouth, a guard at the door of my lips.’’ Ps. 141:3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1304
According to Harris, Alston and Farmer were standing to-
gether about 100 feet behind her when she made her remark.
(4:698, 740–742.) Harris’ footage estimate is far off, of course,
but the relevant point is that she places them to her rear in the
upper left corner of the room on the rough sketch she drew at
trial. (RX 12; 4:748.)
Harris denies that she spoke the remark in a loud tone, but
she concedes that she spoke loud enough for those at her table
to hear. (4:738–740.) Alston contends that Harris spoke her
remark in a loud, angry, very rude, and “sassy’’ tone.10
(6:1181–1182, 1264, 1266.) Alston testified that Harris’ re-
mark, loud enough for everyone in the room to hear, embar-
rassed her in front of the guest instructor and the 60 or so em-
ployees. (6:1265–1266.) Batts asserts that Alston’s face took
on the expression of embarrassment at Harris’ refusal remark.
(7:1555.)
After making her refusal remark [for the moment, I leave un-
resolved whether Harris was facing Alston or her tablemates
when making her remark], Harris turned, raised her hand, and
before Alston could say anything, and admittedly in a rather
loud and angry tone borne of frustration, asked Alston (4:693,
724–725, 755–756, 759, Harris):

Barbara, do we have to fill out these forms?

“No,” Alston replied, who then went to her office and, re-
turning with a sheet of paper and, slamming the paper down in
front of Harris, told all attendees that those not filling out the
Wake Tech form should sign the blank sheet of paper so that
they could get paid for attending the mandatory meeting.
(4:693–694, Harris; 4:786, 794, 796, Downey; 4:830, 832,
Moore.) Canady is not sure from where Alston got the blank
sheet, although he signed it rather than the Wake Tech form
(6:1084–1085), as did Harris (4:695), and Moore (4:695, 831,
839–840). Batts recalls that Alston “put’’ the paper on the ta-
ble. (7:1555.) Confirming the instruction, at least as to the part
about getting paid, and that she had walked away to get the
paper, Alston testified that she took a sheet from a legal pad
and “laid’’ it on the table. (6:1201–1202, 1267.) Finding that
Alston gave the full instruction, I also find that Alston, as a
product of her humiliation, and angered at Harris, “slapped’’
the sheet of paper on the table with enough force that some
noise was generated. “Slammed’’ appears to be an overly dra-
matic characterization because it implies a full arc motion of
the arm. But it would not require a lot of force to “slap’’ the
sheet of paper on the table, with a resulting “thump’’ or bang-
ing noise. Consistent with all the testimony, I find that Alston
“slapped’’ the paper on the table, and that a moderate “bang’’
noise resulted. Alston was mad.
Harris concedes that she talks in a loud voice (4:755), and
she admits that she did not want to be there that morning
(4:755). Of course, as the training began at 7 a.m. on one of
her days off, it is understandable that Harris, and others, might
have been rather frustrated. However, the others controlled
their frustration, and Harris testified that she is the only 1 of the
some 60 employees who said that she was not going to fill out
the form. (4:759.) Although there is testimony that some of the
others at the table made a similar remark, I find that, if anyone
other than Harris said it, he or she spoke so quietly that no one

10 I recall the word being “sassy” rather than the rendering of
“snappy’’ at 6:1179:23. So long as “snappy’’ is understood as used
with the connotation of sassy, I need not correct the record.
away from the table could hear it. Indeed, as Harris testified,
not even she heard it.
There also is disputed evidence that Harris and her table-
mates were disruptive during Farmer’s presentation after Alston
had left. Harris admits that, during Farmer’s presentation, she
read a newspaper at the table for as much as 5 to 10 minutes.
(4:698, 762.) I need not reach this matter because, as will be
clear shortly, any such disruptive conduct was not relied on as a
ground for the discharge.
c. The decision to discharge Mary K. Harris
(1) Harris’ work and attendance record
Mary K. Harris began work at Naomi on May 4, 1988, in the
knitting department. (GCX 34; 4:680.) She was fired some 6-
1/2 years later on December 8, 1994. For much of Harris’ ten-
ure at Naomi, her supervisor was William Batts, with Geraldine
Hinnant her supervisor for part of the time. Under both super-
visors, Harris received good performance evaluations, with the
reviews remarking, through January 1993, that her work and
attitude were “good.’’ (GCXs 34–41.) For his reviews of Janu-
ary 1, 1994 (GCX 43), and October 2, 1994 (GCX 44), Batts
checked no boxes and entered no comments other than that
Harris’ pay was being increased per the “Company Increase.’’
Besides being a good worker, Harris had a near perfect at-
tendance record, missing only 3 or 4 days when she suffered a
miscarriage. (4:687.) Although, as summarized shortly, Alston
and Plant Manager Hartman reportedly did not check Harris’
records when deciding to discharge her, at trial Alston agreed
that Harris was a very competent worker (6:1211), and Hart-
man testified that, in his 23 years’ in the textile industry
(7:1374), Harris’ record of not one unexcused absence in her 6-
1/2 years’ employment at Naomi is so unusual that he could not
think of another person with a similar achievement. (7:1375–
1376.) All this is in the face of Naomi’s admitted problem of a
high rate of employee turnover. (6:1256, Alston.) In addition to
the problem of a high rate of turnover, Naomi was plagued by
poor attendance. As discussed earlier, attendance was so poor
that the Design Team was able, temporarily, to persuade Naomi
to grant an attendance bonus. Not even that incentive worked.
Attendance was so bad in the fall of 1994 that, as the Design
Team’s minutes of October 5, 1994 (GCX 18p), reflect, CEO
Gottdiener threatened to downsize the plant if attendance did
not improve by mid-December.
Harris also had a clean employment record, it being undis-
puted, with one qualification, that she had never been given as
much as an oral warning, much less any stronger discipline.
The single qualification involves Supervisor Batts’ testimony
that, at a shift meeting Batts conducted about a month before
Harris was terminated, Harris apparently complained that she
was having to keep yarn on her machine while some of the
trainees, because of their inexperience, were allowed to get by
without keeping yarn on their machines. Apparently not re-
sponding at that point to Harris’ gripe, which Batts describes as
being “pretty loud,’’ Batts explained the trainees’ situation to
Harris after the meeting. In so explaining, Batts asked Harris to
come to him privately on any future disagreements, and Harris
agreed. Batts asserts that, on this early November 1994 occa-
sion, Harris was not nearly as “blunt’’ as she was in the De-
cember 6 safety training. Batts did not consider the early No-
vember incident to be insubordination, he did not inform his
superiors about it, and he issued no warning on the matter.
(7:1567–1568, 1587.) Although Harris correctly denies receiv-
NAOMI KNITTING PLANT 1305
ing any warning on the matter (4:752–753), it is not clear that
she denies the incident and Batts’ informal counseling or re-
quest. In any event, I credit Batts as to this incident. Turn now
to the events following the December 6 safety meeting.
(2) The testimony
While the December 6, 1994 training session was in pro-
gress, Alston called the payroll section to obtain clarification on
what was needed for the attendees to be paid. Receiving that
answer (not specified, 6:1232, but apparently payroll said the
employees needed to punch their timecards, 5:1022; 6:1202),
Alston walked back into the breakroom as the training session
ended, verified that all the attendees had punched in, and re-
minded them to punch their timecards on leaving. (6:1269.)
That done, Alston then threw away the sheet of paper (so far as
Alston recalls, only Harris signed the blank sheet, 6:1203–
1204, 1233–1234), because she had learned that everyone had
clocked in and she would not need to submit the sheet of paper
to payroll. (6:1202, 1232, 1269.)
At this point, as the group was leaving, Alston went to
Farmer and apologized for Harris’ “I’m not going to’’ state-
ment. Farmer told her not to worry about it, although, he said,
he had never before experienced anything like that. (6:1264,
1266–1267, 1278.) Farmer recalls Alston’s apology, but his
testimony is not item—specific as to which statement she speci-
fied. (5:1014, 1027.) Recall Farmer’s testimony that Harris
made her “I’m not going to’’ comment to him. (5:1011.)
After apologizing to Farmer, Alston testified, Alston went to
Plant Manager Hartman. She reported Harris’ “I am not going
to’’ comment, and described the circumstances, including, as-
sertedly, that it had been made “to me.’’ “That’s insubordina-
tion,’’ Hartman said, asking if that was not grounds for
termination. Alston said yes. Hartman said he recognized the
name, but could not place the individual. Alston then left
Hartman and, apparently going to her own office, proceeded to
contact Supervisor Batts. (6:1271–1272.)
Hartman testified that, following the safety meeting, Alston
came to his office and, saying that “We have a problem’’
(7:1614), reported the incident. Alston told Hartman that, after
Alston had distributed the Wake Tech forms, Harris, in a loud
voice, an angry tone, and a disruptive manner, stated that she
was not going to fill out the forms, and that she did not want to
be there anyway. Alston asked what Hartman thought, and
Hartman replied, “That’s insubordination.’’ Alston agreed.
(7:1380, 1602, 1608, 1613–1615.) At no point in Hartman’s
testimonial recitation does he include Alston’s “to me’’ aspect.
Hartman testified that he made the decision to discharge Har-
ris, and that it was based solely on Alston’s report. (7:1378,
1602–1603.) Hartman acknowledges that he did not first review
Harris’ file (7:1374), made no attempt to ascertain how long
she had been employed at Naomi (7:1374), did not obtain Har-
ris’ version before his decision (7:1381), did not have a full
investigation (7:1384), and did not review Naomi’s policy on
discipline (RX 11; 7:1385–1386), because none of this, even a
near perfect attendance record, would have made any difference
because of the nature of the conduct. (7:1376, 1378–1379.) As
Hartman explains, “She compromised me, she compromised
the Company. She took an action that had to be acted on, and I
felt like that was the only action that could be taken.’’ (7:1378.)
“I discharged her because of the nature of the incident,’’
Hartman asserts. (7:1385.) As Hartman further explains
(7:1377–1378):

Being insubordinate is one thing, but being insubordinate in
front of witnesses and other employees is entirely something
else. If management does not react swiftly and decisively,
we’ve lost all credibility. What is unique to Mary Harris’ case
is not what she did, but it’s in the presence of the people that
she did it in front of.

And (7:1380):

It was reported to be by Barbara Alston, the incidents that
have already been testified to here [Hartman assisted at coun-
sel table (1:19–20)], that Mary Harris, very angrily and very
loudly refused to sign the paper work, whatever that was, I
never saw it so I don’t know, that was given to her, it came
from Wake Tech, to verify that they were taking this course to
bring us in compliance with OSHA.

Had Mary Harris have asked Barbara to see her in her office
or got off of that floor and discussed this with her, it would
have been a totally different scenario. I mean, it’s just—it’s
the nature of the incident.

JUDGE LINTON: And this is what you based your decision on?

THE WITNESS: Yes, sir.

And again (7:1602):

Just by the manner in which it was done, I don’t think we
have any recourse but termination, because if you allow an
employee in front of a host of witnesses to make a statement
that emphatic, then what’s your recourse. I mean, you lose all
credibility if you don’t take that action. I mean it’s policy
anyway, but had it been another setting, it would have been
entirely different, at least in my mind.

Finally (7:1614):

I think the biggest problem she [Alston] had with it,
[was] that it really embarrassed her that it happened in
front of Bernie Farmer, who is not an employee, but an
outside consultant, if you will, coming in to teach this
safety class.

Hartman made the discharge decision on the spot, while Al-
ston was in his office. (7:1608, Hartman.) Later that day he
spoke with Farmer and then with Batts. Hartman does not recall
whether Farmer said whether Harris had made her remark to
him or to Alston. (7:1608.)
After leaving Hartman’s office, Alston spoke with Batts. Al-
ston does not recall whether they conferred in person, whether
he called her from his home, or whether she called him. In any
event, they discussed the situation. Batts called Harris’ conduct
insubordination, and said, “We have to terminate her. You
know, based on the policy.’’ They agreed that Harris should be
terminated “because of insubordination.’’ (6:1204–1205, 1272–
1273.) The decision, according to Alston, was by three per-
sons: Hartman, Alston, and Batts. (6:1209, 1237.) Alston told
Batts to prepare the discharge paper and to meet with Harris
when Harris returned to work December 8. (6:1273.)
Supervisor Batts testified that, after he and the others left the
safety meeting, Alston called him at home that day. Alston,
Batts testified, said that she had talked with Hartman and that
they had decided “it was insubordination so Mary Kay [Harris]
was to be terminated whenever our shift came back on,’’ and to
tell Harris “what she was being terminated for.’’ Batts testified
that he agrees that it was insubordination (7:1557, 1587–1588),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1306
and that Alston told him to state, on the termination slip, the
discharge ground as “Insubordination, failure to participate in
the safety training program.’’ (7:1586.)
When Alston arrived for work the morning of December 8,
1994, Batts brought her the termination form for Harris. Ini-
tially, Alston testified that this was before Harris had arrived
for work. (6:1239.) Later Alston testified that it was after Harris
had been terminated. (6:1274.) The latter appears to have been
the more likely sequence because Alston there testified that
Batts told her he had talked with Harris and that she would be
coming in at 9:30 a.m. to see Alston. Alston took the form,
added a comment in the comment section, signed the form, and
submitted it for the next signature, that of Hartman. (6:1238–
1239, 1274.) Actually, as we see in a moment, the next signa-
ture on the form is that of the controller, Steve Fowler.
(3) The termination form
Alston testified that, under Naomi’s procedure, the supervi-
sor normally completes the termination form, and Batts filled
out the form (GCX 76) for Harris. (6:1210.) Under the name of
“Naomi Knitting Mills,’’ the form is entitled “Personnel Action
Form.’’ It shows the name of Harris and that it was prepared
on December 8, 1994, by Bill Batts. (GCX 76.) The action
box checked is that for “Discharge.” Under reason for action,
Batts wrote (7:1559–1560), “Terminated, Insubordination.” In
the space for “Supervisors Comments,’’ Batts, as instructed,
wrote, “Failure to participate in Safety Training Program.’’
(7:1559, 1586.) At the bottom left, Batts, it appears, filled in
blanks stating that “This termination was discussed on: 12–8–
94,’’ and signed his name. All else, Batts testified, was filled in
by someone else. (7:1559–1560.) That includes a check mark
by “Poor Attitude or Bad Morale?’’ which Batts attributes to
Alston (7:1560), but which Alston attributes to Batts (6:1284).
Under the “Failure to participate’’ comment, inscribed by
Batts as instructed, appears a second notation:

Decline[d] to complete paper work (1) form all employees
was [were] asked to fill out.

Alston testified that she added the foregoing comment when
Batts brought her the form. (6:1210–1211, 1283.)
There is a block for the employee’s comments, but nothing
appears there except a notation by the payroll clerk. (6:1211.)
In the space for the employee’s signature, nothing appears.
Aside from the signatures of Batts and (6:1210) Alston, there
appears, as Alston stated (6:1239), Hartman’s signature. But
there is also one other signature—that of the “Controller S.
Fowler.’’ (GCX 76.)
Alston was questioned extensively about the “Declined to
complete’’ comment which she added, and the reason for Har-
ris’ discharge. Alston seemingly has some difficulty articulat-
ing the discharge ground, both on paper and at trial. Alston
testified, first as a FRE 611(c) witness (6:1094, 1177) and then
(6:1256) as Naomi’s witness, that the only reason for Harris’
discharge was her comment and because it was insubordination
(6:1205); that the failure to sign a [Wake Tech] form had noth-
ing to do with the discharge (6:1229–1230), and that “The
comment that Ms. Harris made to me, which was insubordina-
tion, is what actually caused her discharge.’’ (6:1230.) Alston
added her own “Declined’’ comment on the discharge paper
because Harris’ refusal “was showing insubordination.’’
(6:1230.) Thus, when Harris said she was not going to fill out
the form, “that is refusing to fill the form out.’’ (6:1231.) Har-
ris’ comment constituted the only insubordination. (6:1231.)
The fullest expression in Alston’s own words comes when
the Union’s attorney, on a revisit of the Harris discharge, asks
(6:1244):

Q. So, what was her act of insubordination?
A. When she made the statement “I am not going to
fill the form out. I don’t want to be here anyway.’’ The
way she said it, the refusal to fill the form out, that was the
insubordination.
Q. The way she said it, is that what you’re saying?
A. That, and refusing to follow through with my as-
signment. I mean, she was not asked to do anything that
anybody else in that group, or any of the other meetings
we had. All of them were asked to do the same thing.
Q. All right, and a lot of other people did not do the
same thing?
A. I cannot answer that. I don’t know.

At the end of her testimony, Alston was asked why she had
not written, on the discharge form, anything about Harris’ hav-
ing been “rude’’ or speaking in an “angry’’ tone. “You don’t
mention anything that you’ve described here as to what seem-
ingly really shocked you.’’ Other than observing that the form
does state “insubordination’’ and is marked for poor attitude,
Alston answered, “I don’t know.’’ (6:1283–1284.)
Alston concedes that she never checked to see whether any-
one else had failed to fill out the Wake Tech forms. (6:1231.)
Although Alston testified (6:1178–1179, 1268–1269, 1281–
1282) that the Wake Tech forms were needed to prove to Wake
Tech, apparently the recipient of at least a partial government
funding of the program, that the employees actually had at-
tended, and supposedly told the attendees this (although she did
not report in her pretrial affidavit that she told the attendees of
the state funding and proof requirement, but only that the forms
were needed for pay purposes and for any future school regis-
tration, 6:1276–1277), Alston never explains how the employ-
ees’ punching of their timecards would satisfy this proof. Of
course, her testimony can be interpreted to mean that the only
person she knew of who had signed the blank sheet, rather than
the Wake Tech form, was Harris. In any event, guest instructor
Farmer credibly testified that, at the close of the December 6
training session, Alston gave him a list containing the names
and social security numbers of all the attendees. (5:1027.)
Alston acknowledges that she did not review Harris’ file or
investigate the incident because Harris’ conduct was insubordi-
nation, and Naomi’s policy at the time stated that the penalty
for insubordination was automatic discharge. (6:1235–1236,
1243.) Naomi’s written policy, effective at the time, in fact did
specify discharge on the first offense of insubordination. (RX
11 at 8, par. 22.13.)
d. Mary K. Harris is fired
Early the morning of December 8, Supervisor Batts pulled
Harris’ timecard. When Harris arrived, accompanied by her
mother, employee Mary Moore, Batts motioned for them to
come into his office. In the office, Batts testified, Batts told
Harris that she was being terminated for insubordination by
what she had said in the breakroom about refusing to fill out the
form as requested, and that Human Resources had instructed
him to terminate her when she reported to work. Observing
that Harris appeared shocked, Batts said he hated to do it, that
he hated to see anyone lose her job. He told Harris that if she
NAOMI KNITTING PLANT 1307
had any questions she could call Alston after 8 a.m. (7:1557–
1558.)
Harris testified that, when Batts said that they were “going to
have to let you go,’’ she asked him, “For what? Because of
what I said in the meeting?’’ Harris protested that she had not
cursed or refused to do anything. “I know,’’ Batts replied, but
“it’s just out of my hands.’’ He told her she could return be-
tween 9:30 and 10 a.m. and speak with Alston. Batts added,
“You’re going to have to think before you talk.’’ She asked
what she was being fired for, and Batts replied, “Insubordina-
tion.’’ (4:701–702.) Moore’s testimony is consistent with that
of Harris, except Moore first admits and then denies that Batts
said Harris was being fired for insubordination. (4:832–834,
843–844.)
On her way out of the plant, Harris was able to speak with
CEO Gottdiener, who apparently was at the plant that day.
Harris told him of the matter, and said that had she known the
paper related to her job she would have signed it. When Gottdi-
ener asked if the paper did so relate, Harris said no. Gottdiener
said he would hear Alston’s side, put the two sides together,
and make some progress. (4:702–703.)
Later that morning in Alston’s office, Harris testified, Alston
confirmed that Harris had been discharged. When Harris asked
why, Alston reached into her desk drawer and, pulling out a
Wake Tech form and holding it up said, “You refused to sign
it.’’ “No,’’ Harris replied, “I didn’t refuse to sign the Wake
Tech form, Barbara. You told us that those who didn’t want to
sign the Wake Tech form to sign a blank piece of paper to get
paid.’’ “Oh, yes. You refused to sign the paper,’’ Alston re-
sponded. “No, I didn’t,’’ said Harris. (4:704.) Harris said she
could prove that two others at her table did not sign the Wake
Tech form, but Alston said she was sure Harris was the only
one who had not signed. Harris said her mother was one of the
two who would verify that they had not signed it. (4:703–705.)
Mary Moore, Harris’ mother, was summoned and told Al-
ston that she had not signed the Wake Tech form. Alston said
she was sure Moore had signed it, and would have Wake Tech
return the form so Moore could identify it. To Moore’s question
what had happened to the blank sheet she had signed, Alston
said she had thrown that away because everyone had punched
their timecards. After Moore left, the meeting ended with Har-
ris saying that she would have signed the Wake Tech form had
she known it had anything to do with her job. Alston said she
would call Harris that afternoon after she, Batts, and Hartman
met to determine whether Harris was to be rehired. If Harris
would be rehired, it would be without loss of seniority, Alston
assured. (4:705–709, 764, Harris; 4:835, 841–842, Moore.)
After this meeting, Moore testified, Alston never contacted her
about receiving Moore’s form back from Wake Tech. (4:835–
836, 842.)
Alston’s version is that she affirmed that Harris had been
terminated for insubordination. Harris then “proceeded to talk
about, you know, why it was not insubordination. She didn’t do
this, she didn’t do that, but I just didn’t discuss it any further,
because, you know, I had just said yes, it was insubordination,
you know, which warrants termination, and that was it.’’
(6:1274.) Alston confirms that both Harris and Moore said that
Moore had not signed the Wake Tech form, but denies telling
Moore that she would check with Wake Tech. Alston asserts
that she simply did not respond. Alston does not remember
calling Wake Tech to ask about Moore’s form. (6:1216–1217,
1228.) In fact, Alston testified that she did not investigate into
whether Moore had signed the Wake Tech form (6:1229), or
into whether anyone had failed to sign it (6:1231). According to
Alston, Harris asked whether Alston would reconsider the ter-
mination decision. Because of a need to keep policy consistent
respecting insubordination, Alston told Harris, the decision
could not be reconsidered. (6:1274–1275.) Alston does not
remember Harris’ saying that she would have signed the Wake
Tech form had she known it related to her job. (6:1237–1239.)
As with the absence of any review of Harris’ file and record
(because the offense was insubordination) before the discharge
decision (6:1235), neither did Alston do any such review after
the December 8 meeting with Harris (6:1239).
Alston admits that Gottdiener asked her what had happened
respecting the Harris matter, but she does not recall when that
was or whether he was at the plant on December 8. (6:1278–
1279.) [Although I sustained Naomi’s objection to the Union’s
going further into this area on the ground that it exceeded
Naomi’s direct examination, 6:1279, there was no motion to
strike the foregoing, and I therefore consider that evidence.]
Harris concedes that neither Batts nor Alston mentioned the
Union during their meetings with her, nor did she. (4:756.)
e. Disparity evidence
The General Counsel and the Union cite evidence that
Naomi’s previous discharges of employees for insubordination
involved refusals of direct orders to perform some task. The
Union even argues (Br. 29) that “there have been no previous
cases of discharge for making ‘snotty’ or ‘rude’ comments.”
The Union conveniently ignores the absence of any evidence of
a previous case involving “snotty’’ or “rude’’ comments to a
supervisor or manager in a room full of employees and in the
presence of a guest instructor.
As quoted earlier, Plant Manager Hartman testimonially ex-
plained the obvious—Harris’ conduct falls into a different cate-
gory of insubordination from that of refusing to comply with an
order. (Alston classifies Harris’ conduct as the refusal of a
direct order by Alston to fill out the Wake Tech form. 6:1236.)
Under the argument of the General Counsel and the Union, an
employee, on receiving an order, could freely spit on the boss’
desk, so long as the employee obeyed the order. This disparity
argument is without merit.
The Union also observes that employees Mary Moore and
Adam Canady were not disciplined even though neither filled
out a Wake Tech form, and even though they missed several
subsequent safety meetings. That they missed subsequent
meetings without being disciplined only remotely bears on the
issues here. As to the first matter, Alston claims not to have
been aware that anyone other than Harris signed the blank
sheet. This is one of the issues to be considered when I discuss
the overall credibility.
B. Analysis and Conclusions
1. The General Counsel’s prima facie case
a. Knowledge
When the Naomi plant received its copy of the November
30, 1994 amended consolidated complaint (GCX 1y) contain-
ing, for the first time, a request for a bargaining order, the ser-
vice sheet (GCX 1z) shows that the plant copy was addressed to
“Controller & Personnel Manager’’ Steve Fowler—the same
Steve Fowler, I find, who signed Harris’ discharge notice (GCX
76).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1308
Recall that when Union Representatives Burnett and Skinner
visited the Naomi plant on August 26, 1993, Plant Manager
Miller, the same day, notified Vice President Lundblad who, in
turn, informed CEO Gottdiener. I infer that this same pattern
was followed in November 1994 when Naomi learned of ru-
mors that the Union was “in’’ the plant and Naomi posted a
notice reassuring employees that such was not true. That is, I
find that Plant Manager Hartman immediately notified Lund-
blad of the rumors and that Lundblad forthwith informed
Gottdiener.
Once the November 1994 alarm bells had rung along man-
agement’s chain of command, some limited interrogation began
by Alston and Frank Carter, as I have found. Although I dis-
miss the November interrogation allegation (of Deborah
Baines) respecting Alston and Carter, the point here is that
Naomi was seeking information.
Based on the foregoing events, it is reasonable that I infer, as
I do, that Naomi’s top management asked the logical question
of who might be involved. As I noted at the beginning of this
decision, “Round up the usual suspects’’ (figuratively, that is)
would have been the directive. Of course, as Hartman and
Alston had been installed in their respective positions following
the election, some of the task of compiling the list would have
fallen on Vice President Lundblad, because he was at the
preelection conference and saw the Union’s observers. It re-
quires no speculation to recognize that the first names on any
such list of “suspects’’ would have been the Union’s three ob-
servers, with the first-shift observer’s name heading the list. So
whose name would have been at the top of management’s list
of “suspects’’ in this mental roundup? None other than that of
Mary K. Harris.
With this likely chain of events, and with Supervisor Batts,
as I have found, having personal knowledge, it will not do for
Plant Manager Hartman and Human Resource Manager Alston
to claim that each was unaware of Harris’ past union activities.
Not only do I find that they were aware, I also find that they,
along with top management, knew that Harris was one of the
employees most likely involved in any resurgent union activity.
During the period of rumors, Naomi did not interrogate Harris
about the Union, and there is no evidence it sought to create an
artificial basis to get rid of her. But those are matters to be
considered below when I discuss whether Naomi acted unlaw-
fully against Harris on December 8, 1994. It is enough that I
find, at this point, that, as of December 6, 1994, all of Naomi’s
managers, including Hartman and Alston, were aware of Mary
K. Harris’ prior union activities, and that she was at the top of
the list of employees most likely involved in the November
1994 resurgent union activity.
b. Causal connection
(1) Introduction
For the Government to establish a prima facie violation of
Section 8(a)(3) of the Act, the General Counsel must first show
knowledge (which I have found) and, second, a causal connec-
tion between that knowledge and the discipline imposed. That
is, an unlawful motive must prima facie be established. Fre-
quently, animus is found as an indicium of the unlawful motive,
but there is no evidence here of animus toward either the Union
or, more particularly, against Harris.
Timing, a frequently misapplied factor, is argued here by the
General Counsel and the Union. Timing is a factor favoring the
General Counsel when, following news of recent union (or
other protected) activity, discipline is imposed over a stale in-
fraction. When discipline is imposed immediately following the
alleged infraction (as here), and any protected activity is older
than the alleged infraction (as here), then timing favors the
respondent unless an unlawful motive otherwise appears. As it
is written, “timing’’ is not the witches’ general incantation from
Macbeth.11 Lovejoy Industries, 309 NLRB 1085, 1146 (1992),
enfd. except remanded on different point 26 F.3d 162 (D.C. Cir.
1994).
Also frequently, pretext (advancing a false reason, hammer-
ing a minor infraction, or inconsistent or shifting reasons ad-
vanced) appears as an indicium of unlawful motivation, as does
disparity of treatment, and the General Counsel and the Union
argue these two indicia. That leads to the need to determine
what happened at the December 6, 1994 safety meeting. Mak-
ing that determination requires resolving credibility.
(2) Credibility
(a) The safety meeting
What really happened at the December 6, 1994 safety train-
ing session? It is just possible that no one knows all the details.
Of all the witnesses, Bernie Farmer appears to have the least
personal interest in the outcome of this case. With a back-
ground of many years in industry, Farmer now serves as a con-
sulting instructor. He appears to be about 67 and, with his gray
hair and distinguished look, I am reminded by the inspired
writer that a life of discipline will lead to “wisdom with graying
hair.’’ (Sir. 6:18.) But more than wisdom, what is needed from
the witnesses are the facts.
There is some question whether Farmer is correct when he
names Harris as the person being disruptive. He knows her
name only because, several days after the December 6 training
session, Alston told him that the person causing the disruption
had been fired and that her name was Harris. (5:1014.) As
Farmer and Alston have no meeting of the minds on the main
incident itself (each claiming a very similar incident with Har-
ris), I have serious doubt whether they are speaking of the same
person. After all, at trial Farmer was never asked to point out
which person (whether in the hearing room or in the hallway
outside) was the disruptive person of December 6.
If Farmer and Alston were describing the same incident, then
they apparently did not see each other and each thought that
Harris was speaking to him/her. Although that is a remote pos-
sibility, at trial Naomi did not advocate that position. Given the
fact that Harris (and her supporting witnesses) and Alston (and
Batts) seem to agree on a common incident, but with different
versions, I find that Bernie Farmer’s description lacks sufficient
evidentiary support linking his incident to Harris. In this con-
nection, I credit Harris that Farmer never came to her table.
(4:738.)
[Before leaving Farmer, I must express disappointment that
Naomi’s counsel, on brief, cited Farmer’s testimony as support-
ing that of Alston, without at least acknowledging the apparent
conflict, even it counsel did not offer a suggested resolution.
For example, at brief page 52 Naomi, after quoting Harris’ “I’m
not going to’’ statement, cites, in addition to Harris, Farmer
(5:1010–1012) and Alston (6:1264), as if Farmer and Alston
are describing the same incident. Perhaps they are, but each has
a very different perspective, and that critical difference should

11 “Double, double toil and trouble; Fire burn and cauldron bubble.”
Macbeth, IV, 1, 10.
NAOMI KNITTING PLANT 1309
have been acknowledged even if counsel could not offer a reso-
lution. A reading of Farmer’s testimony shows that the ex-
change was between Harris and “Me.’’ (5:1011.) Alston’s cited
testimony (6:1264) merely describes the same quoted statement
of Harris. It is elsewhere in Alston’s testimony (and not cited in
Naomi’s brief) that Alston asserts that, when Harris made her
quoted statement, Harris made it to “me’’ (6:1179, 1181), “di-
rectly to me’’ (6:1186, 1187), “directed to me’’ (6:1187), and
that Harris was looking “directly at me’’ (6:1205, 1268).
Granted, all but one of Alston’s “to me’’ references came while
she was a FRE 611(c) witness for the General Counsel, and
with the last reference (6:1268) not in answer to a question
asked by Naomi. But it is immaterial who asked the questions.
The material point is that it is counsel who wrote Naomi’s brief
and cite Farmer as if he fully supports the version of Alston.]
[Again, at brief page 61, Naomi merges the apparently con-
flicting versions, without acknowledging the major difference,
by arguing that Farmer (at the same pages of 5:1010–1012)
“corroborated’’ Harris’ rude and loud refusal statement. The
only aspect corroborated by Farmer is the quoted statement,
and he claims that was made to him, not to Alston, and we can-
not be sure that it was our Harris who made the statement to
Farmer. It is misleading for counsel to cite Farmer’s “corrobo-
ration’’ without acknowledging the questions adhering to
Farmer’s version. Farmer also testified that the incident oc-
curred while he was passing out the forms in the bottom half of
the room, that Alston distributed forms in the top half (5:1009–
1010), that he did not hear or see any exchange between Harris
and Alston, and did not see Alston bring out a blank piece of
paper for the attendees to sign (5:1022–1023). Thus, Farmer did
not even hear Harris’ admitted question, “Barbara, do we have
to fill out,’’ which question Harris admits was asked in a loud
voice (and, initial version, an “angry way,’’ 4:693). The duty of
candor required that counsel acknowledge the very limited
nature of Farmer’s so-called corroboration, even if counsel did
not offer a suggested resolution. I am disappointed.]
Because Barbara Alston no longer is employed by Naomi,
and works elsewhere, she would not appear to labor under any
perception of pressure to conform her testimony to suit the
perceived needs of Naomi. Thus, Alston’s personal interest
apparently is limited to a natural desire to see her previous ac-
tions and professional reputation cleared of any suspicion of
wrongdoing.
The witnesses having the strongest money interest are Mary
K. Harris and Supervisor Batts. Because Batts remains em-
ployed by Naomi, there would be a natural tendency for him to
be concerned that his testimony please Naomi—his employer
and source of his livelihood. Harris, of course, stands to obtain
an offer of reinstatement plus backpay. (Harris was unem-
ployed as of the date of her testimony.) But I see no more pe-
cuniary interest for her than for Batts.
Aside from generalities about possible perceived pressures
and about financial interests, the more important considerations
are the facts and the demeanor of the witnesses. Mary K. Harris
was very candid. She acknowledges much which hurts her. (I
do not overlook the testimony of Moore, Downey, and Canady,
but their testimony, as a whole, adds only limited support for
Harris.) I credit Harris to a substantial extent, but not on some
key points.
Although projecting a surface sincerity, Barbara Alston’s
version of events suffers to some extent from her failure to
include the “directly to me’’ aspect (about Harris’ statement) in
her pretrial affidavit. I am persuaded that such omission was
not from mere oversight, as omissions frequently are, particu-
larly where the witness is not asked a direct question on the
point. Moreover, I consider her overall credibility when deter-
mining what happened on December 6. Finally, I credit Harris
and Mary Moore over Alston concerning their descriptions of
the December 8 meeting in Alston’s office. Alston tends to
describe events in generalities, whereas Harris usually is more
specific and usually gives more details.
With that background, I find that Alston embellished her
version of the December 6 event by adding at trial the “directly
to me’’ concept. Thus, I find that, in the report she made to
Hartman, Alston did not tell Hartman that Harris had made her
remark while looking directly at Alston. Neither did Alston
report that Harris had made her statement “to me,’’ although, I
find, that is what Alston considered it. Crediting Harris, I find
that Harris made her “I’m not going to’’ statement while gener-
ally facing her tablemates. However, partially crediting Alston
and Batts, I find that Harris made her remark in a loud, angry,
and rude tone, that Alston was standing near the end of the
Harris table, that Harris, while not looking directly at Alston,
was aware that Alston was standing near the end of her table,
and that she knew that Alston would hear her remark. I further
find that Alston (thinking that visiting instructor Farmer and
most of the class heard the remark, made in the very near pres-
ence of Alston) viewed the statement as made for her benefit,
that she was embarrassed and humiliated, and that Batts, who
heard the remark, observed that Alston facially showed her
embarrassment and humiliation. Finally, I find that Hartman
viewed Harris’ refusal statement as a public act of insubordina-
tion toward Alston.
There is no dispute about the second incident, that being
when Harris turned, raised her hand, and, admittedly facing and
addressing Alston in a loud, frustrated (and, as initially stated,
an angry) tone, asked, “Barbara, do we have to fill out these
forms?’’ As earlier noted, Alston said, “No,’’ obtained a sheet
of paper, and showing that she was greatly provoked, slapped
the sheet down in front of Harris with a bang. Harris had em-
barrassed, humiliated, and angered Alston.
(b) The discharge decision
The parties and I have devoted great attention to Alston’s
testimony, including much focus on the statements in the dis-
charge paper (GCX 76), and that is understandable given Al-
ston’s version that she and Hartman, with Batts later joining,
decided on discharge because of insubordination. An important
point here, however, is that Plant Manager Hartman testified at
several points (cited earlier) that he made the decision to dis-
charge (at 7:1613 he terms it a “recommendation’’ in which
Alston concurred). Leaving aside for the moment whether un-
ion considerations were involved (Hartman denies that they
were, 7:1616), Hartman asserts that his decision, made on the
spot (7:1608), was based solely on Alston’s report to him.
(7:1378, 1380, 1602–1603.) As I have summarized, that report
described only the “I am not going to’’ refusal. (6:1271, Alston;
7:1380, 1601–1603, 1608, Hartman). That is, Alston did not
describe the second incident, that being Harris’ loud and angry
question on whether employees had to fill out the form. Re-
gardless of how much the second incident added to Alston’s
embarrassment and anger, that episode was not part of her re-
port to Hartman, and it was not part of Hartman’s decision to
discharge Harris. Accordingly, I shall not address it further.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
Crediting Hartman, as I do, concerning the decision process,
I also credit Supervisor Batts that Alston called him at home,
told him the decision to discharge had been made, and in-
structed him to prepare the necessary paperwork. Batts did so,
and fired Harris the morning of December 8.
As part of my crediting Harris and Moore concerning the
December 8 meeting with Alston, I find that Alston spoke of an
afternoon meeting with Hartman and Batts to discuss whether
Harris would be rehired. What happened, I find, is that CEO
Gottdiener, as he told Harris, in fact did get involved to a lim-
ited extent. Recall Hartman’s testimony that, after his decision,
he called Batts and Farmer. On the surface it seems strange that
he would call them after his decision. Strange, that is, until we
review the sequence of events. Hartman made his decision on
December 6. On December 8, after Batts had fired her, Harris
spoke with CEO Gottdiener who told her that he would speak
with Alston. Gottdiener, I find, convened a meeting with Hart-
man and Alston on December 8 and, learning that Hartman had
made his decision solely on Alston’s report, suggested that
Hartman talk to Batts and to Farmer. That, I find, is what hap-
pened, and it explains why Hartman conferred with them on the
matter after his decision.
Batts apparently confirmed Alston’s report to Hartman, but
Farmer, as we have seen, would have done so only to a limited
extent (he heard the words, but everything else is different). I
do not credit Hartman’s testimony (7:1608) that he does not
remember whether Farmer told him that Harris’ remark was
directed toward Alston or to him. I find that Farmer reported
the incident just as he described it at trial, including the fact that
the remark had been made to him.
However mystified Hartman may have been after speaking
with Farmer on December 8, it is clear, and I find, that Hartman
decided that an important portion (Harris’ statement) of
Farmer’s version matched Alston’s. Hartman so reported to
Gottdiener, I find, and reaffirmed his decision to Gottdiener.
CEO Gottdiener then approved the decision notwithstanding
the fact that Mary K. Harris, except for this one incident, had
been a good worker with a near perfect attendance record (and
in fact no unexcused absences in her entire 6-1/2 years with
Naomi). Thus, Naomi’s management, all the way to CEO
Gottdiener, was willing to sacrifice this good worker, with her
superb attendance record (at a time when Gottdiener was
threatening to downgrade the plant if attendance did not im-
prove), in order to soothe management’s wounded dignity in
the face of one insubordinate incident.12
Recall also Hartman’s testimony that the public nature of the
insubordination required swift and decisive action or manage-
ment would lose its credibility, and that “What is unique to
Mary Harris’ case is not what she did, but it’s in the presence of
the people that she did it in front of.’’ (7:1377–1378.) There is
no evidence that Naomi has ever tolerated similar conduct.
But what of the discharge paper? How can the foregoing fit
the statements on the discharge paper? Recall that the “insubor-
dination’’ is there described by two comments. The first com-
ment (as dictated to Batts by Alston), is “Failure to participate
in Safety Training Program.’’ The second, added by Alston,
reads, “Decline[d] to complete paper work (1) form all employ-
ees was [were] asked to fill out.’’ Recall that Harris, describing

12 The General Counsel and the Union essentially argue “Ruckert’s
Law,’’ which is, “There is nothing so small that it can’t be blown out of
all proportion.’’ A. Bloch, Murphy’s Law, Book Three 19 (1986).
her discharge interview with Batts, reports that Batts told her
that she was going to have to think before she spoke. As Alston
testified at more than one point, it was Harris’ comment and the
way she said it that got her fired. And in making her remark of
refusal (to follow a directive to fill out the form), and in the
circumstances in which she made it, Harris was insubordinate.
(6:1205, 1230–1231, 1244.)
That would be clear enough were it not for Alston’s ten-
dency to obscure her position. Thus, she added (6:1244), “That,
and refusing to follow through with my assignment.’’ Recall
also that, when Harris came to Alston’s office on December 8,
Alston held up a Wake Tech form and told Harris she had not
signed it (saying nothing about any loud language or that mo-
ments later on December 6 she had answered Harris’ loud ques-
tion about the need to sign with a “No’’). What Alston means,
I find, is that the refusal portion of the insubordination was
fixed as of the moment Harris uttered her “I’m not going to’’
statement. Never mind that Alston, moments later, said Harris
did not have to do so, and that Alston brought out a blank sheet
of paper. Harris’ refusal had already been carved in stone. The
balance of the insubordination, and no doubt the really motivat-
ing part from Alston’s standpoint, consisted of the public nature
of the refusal and Alston’s ensuing embarrassment and humilia-
tion. (Had Harris said nothing else after her refusal statement,
and had she immediately gone ahead and signed the form,
Alston can be understood to mean that possibly she would have
excused Harris’ temporary insubordination and never have
made her report to Hartman. But that is not what happened.)
But if Alston never clearly articulated the position I have just
described, Hartman was never asked to correlate his trial ver-
sion with the discharge paper (GCX 76) which he signed. At
their own risk (whether intended or inadvertent), the parties
failed to follow up with the same questions for Hartman as
were asked of Alston. Why did Hartman, the real decision
maker, not send the form back to Alston with instructions to
prepare one corresponding more closely to the report which she
had made and on which he had based his decision? Or why had
he not at least added, as his own qualifying comment, that the
refusal had been loud, rude, and public? Why did he just sign it
and let it go? For that matter, did he even read it? And suppose
Hartman had testified that in fact he was busy, and with no time
to focus on the comments, he had barely glanced at the form
and had just signed it. We will never know because these ques-
tions were not asked.
As I am persuaded by Hartman, I find that, to the extent he
read the discharge paper, he considered the comments about
“failure to participate’’ and “Declined to complete’’ as the
manner of Alston or Batts, or both, in referring to the insubor-
dination.
The General Counsel and the Union see, on the discharge
paper, not a poorly articulated explanation garbling the real
reason, but the original reason which was abandoned at trial
with Naomi shifting it’s reason to the loud, angry, and rude
ground. The original reason was abandoned because, Naomi
discovered, others who had not signed the form had not been
fired. Therefore, in order to be successful in its effort to get rid
of election observer Harris, Naomi had to shift its reliance to a
different and stronger ground.
The argument of the General Counsel and of the Union
really assumes that Naomi wanted to get rid of Harris because
of her union sentiments and to discourage others. But that as-
sumption bumps into the factual stone wall that there is no evi-
NAOMI KNITTING PLANT 1311
dence of such a preexisting desire (or of a desire to seize on this
“minor’’ incident as a golden opportunity to get rid of top sus-
pect Harris). Thus, so far as the record shows, in all the months
following the October 1993 election, and through the Novem-
ber 1994 resurgent interest in the Union, Naomi never once
interrogated election observer Harris. Not once did Naomi
threaten Harris. At no time did Naomi spy on Harris by peeping
around corners or peering from behind machines or by follow-
ing her into the restroom. No supervisor or manager ever tried
to intimidate her by standing nearby and openly staring at her
for lengthy periods of time. Never did Naomi assign Harris to
perform new and unpleasant duties. She was not told to sweep
the floor, to clean the windows or the toilets, or to lift heavy
items. She was not sent on special duties outside in the winter
cold or the summer heat or the heavy rain. At no time was
Harris oversupervised on her regular work. Nor was she ap-
proached with promises of new benefits or promotions. Naomi
simply let Harris do her good work, accepted her superb atten-
dance, and, instead of fabricating warnings and poor perform-
ance evaluations to create a fraudulent basis to fire Harris,
Naomi gave Harris good performance evaluations.
Thus it is that Harris is not in the position of Woody Guth-
rie’s “Union Maid” (1940), for Harris, who claims no harass-
ment, certainly was not subjected to the kind implied in Guth-
rie’s first verse by “goons and ginks and company finks’’ and
by “the deputy sheriffs who made the raids.” E. Fowke and J.
Glazer, Songs of Work and Protest 17–19 (Dover Pub.,
1993).13
The basic fact is that Harris agrees she made her refusal
statement. While she disagrees that it was loud and rude and
that Alston was standing near the table, I have resolved those
issues in favor of Alston. Indeed, I have found that Harris knew
that Alston was standing near her table. Whether Harris in-
tended her remark for Alston’s benefit, or simply was arro-
gantly indifferent to whatever reaction it would produce in
Alston, is immaterial. It was natural for Alston to be greatly
offended, and for her to make the report she did to Hartman.
Hartman’s reaction and decision was to support his manager,
and there is no evidence that, in so doing, he departed from any
course he had ever taken in the past.
The General Counsel and the Union argue that the penalty of
discharge was too harsh. The Union, apparently mistaking this
proceeding for an arbitration, would reduce Harris’ penalty to a
“verbal warning.’’ (Br. 30.) That might well be a reasonable
decision for an arbitrator. But in the absence of any previous
examples of lesser penalties for a comparable event, and there
is no such evidence, a Federal agency has no authority to dic-
tate, or even to suggest, that the penalty should have been
lighter in this statutory proceeding. Naomi’s decision was either
lawful or unlawful. Under the statute, there is no in-between.
2. Conclusions
Although finding that, on December 6, 1994, Hartman knew
who Mary K. Harris was (both her background as a union ob-
server and her excellent work and attendance record), I find that
the General Counsel has failed to establish, prima facie, that
Naomi was unlawfully motivated when it discharged Harris on
December 8, 1994.

13 However, nothing prevents Harris from singing the second verse
from “We Will Overcome’’ (id. at 33–34), which concludes with the
lines, “Oh, down in my heart I do believe, We will organize some
day.’’
Following the October 1993 election, and into December
1994, Naomi never bothered Harris. But then came the Decem-
ber 6, 1994 safety meeting and, unfortunately, Harris did not
control her tongue.14 The evidence strongly points to that one
event as the sole cause of Harris’ discharge. No pretext is
shown. What could otherwise appear as shifting reasons at trial
(compared to those on the discharge form) are not. No dispar-
ity of treatment is shown, because there is no evidence of a
prior similar incident in which an employee, in the presence of
a guest instructor and many employees, in a loud, angry, and
rude refusal that she was not going to do as directed, publicly
embarrassed and humiliated a supervisor or manager.
The trial testimony of Plant Manager Hartman persuasively
explains why he initially made no further investigation and why
Harris’ good work and near perfect attendance record were
irrelevant—it was the intensely unacceptable nature of the inci-
dent. As Hartman explains (7:1377–1378), “What is unique to
Mary Harris’ case is not what she did, but it’s in the presence of
the people that she did it in front of.’’ And (7:1602), “I mean,
you lose all credibility if you don’t take that action. I mean it’s
policy anyway [discharge for first offense of insubordination],
but had it been another setting, it would have been entirely
different, at least in my mind.” The implication is that Hartman
viewed Harris’ refusal remark to be insubordination, in public,
toward Alston.
Finally, Harris admits that neither Alston nor Batts ever
mentioned the Union to her on December 8. What Batts did tell
Harris is that she needed to think before she spoke. That advice
pierces to the heart of Harris’ problem here. Thus, although
some aspects of the case generate confusion, nothing shows
union motivation in the decision to discharge.
In short, the evidence falls substantially short of showing,
prima facie, that Naomi was unlawfully motivated when it dis-
charged Mary K. Harris on December 8, 1994. Accordingly, I
shall dismiss the complaint (pars. 10 and 20) as to Mary K.
Harris.
IV. ALLEGED VIOLATION OF SECTION 8(A)(5) AND THE REQUESTED
REMEDIAL BARGAINING ORDER
A. Discussion
Complaint paragraphs 14 through 17 allege majority status
by the Union from August 26, 1993, and a request, since that
date, for Naomi to recognize and bargain. Naomi denies the
allegations. The complaint also alleges, in conclusory para-
graph 21, that, by its refusal to recognize and bargain with the
Union since August 26, 1993, Naomi has violated Section
8(a)(5) of the Act.
Complaint paragraph 23 states that the unfair labor practices
alleged in paragraphs 9 [the independent 8(a)(1)], 10 [the Mary
K. Harris discharge], 11 [labor organization status of the De-
sign Team and subcommittees], and 12 [unlawful domination]:

are so serious and substantial in character that the possibility
of erasing the effects of these unfair labor practices and of
conducting a fair [rerun] election by the use of traditional
remedies is slight, and the employees’ sentiments regarding
representation, having been expressed through authorization
14 As the sage Amenemope instructed about 1250 B.C., “Keep your
tongue from answering your superior, and take care not to insult him.’’
M. Lichtheim, Ancient Egyptian Literature 146, 153 (1976, Univ. of
Calif. Press).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
cards, would, on balance, be protected better by issuance of a
bargaining order than by traditional remedies alone.

Naomi denies. In short, the General Counsel and the Union
seek a bargaining order based on the authority of NLRB v. Gis-
sel Packing Co., 395 U.S. 575 (1969).
B. Dismissed
At trial the General Counsel moved to withdraw the 8(a)(5)
allegation. The Union objected, but Naomi, not surprisingly,
did not object. (7:1397–1403.) I reserved ruling. (7:1403.)
On brief (Br. 36–37 fn. 33) the General Counsel seeks to with-
draw its trial motion. That is, the General Counsel now argues
in support of an 8(a)(5) violation. Naomi makes no argument
that it would be prejudiced (that is, misled into not presenting
evidence or witnesses) by my permitting the General Counsel
to withdraw the Government’s trial motion. I now grant the
General Counsel’s request to withdraw from the Government’s
trial motion. Thus, the 8(a)(5) allegation remains part of the
complaint, and I turn now to the merits of that allegation.
As noted much earlier, Naomi concedes (Br. 90–91) the is-
sue of card majority as of August 26, 1993. However, because
I have dismissed most of the 8(a)(1) allegations and the sole
8(a)(3) allegation, I find that the violations of Section 8(a)(1)
found [granting the benefits of picnic tables and a larger refrig-
erator, and threats to withhold benefits and a scheduled pay
increase], and the violation found of 8(a)(2) [domination of the
Design Team], are too limited in scope and nature to justify an
8(a)(5) finding and the issuance of a bargaining order. Accord-
ingly, I shall dismiss the complaint as to the 8(a)(5) allegations
[pars. 17 and 21], and I shall deny the Government’s request for
a remedial bargaining order.
V. THE UNION’S ELECTION OBJECTIONS
A. Introduction
Recall that we are concerned here with Objections 1–5 and
7–8. Objections 1–5 and 7, largely coextensive with some of
the 8(a)(1) allegations of the complaint, are specific. Objection
8 is an “other acts’’ objection. During the Region’s investiga-
tion of the Union’s objections, the Union presented evidence
concerning three additional matters, including an allegation that
Johnny Wayne Holder (whose supervisor status is disputed)
surveilled union meetings on September 16 and 22, 1993.
(GCX 1g.) As no evidence was presented at trial on the two
“other acts,’’ Objection 8 now is limited to the surveillance
allegation.
A salaried mechanic, Holder assumed his disputed supervi-
sory or lead position in early July, and served in that position,
plus handling his mechanic’s duties 90 percent of his time
(7:1522, Holder), until, as former Plant Manager Miller testi-
fied (4:944), August 16, 1993. As I noted earlier when consid-
ering the allegation of a threat by Holder on August 13, it is
sufficient if the evidence establishes that during the 6-week
period that Holder served in his lead or supervisor capacity, he
was a statutory agent. At that time I did not reach the merits of
the agency allegation. Nor will I reach it here.
I have found merit to portions of complaint paragraph 9(b)
(purchase of refrigerator and picnic tables), complaint para-
graph 9(e) (threats by Gottdiener and Lundblad to withhold a
scheduled pay increase), and complaint paragraph 9(g) (No-
vember 9 letter threatens to withhold benefits). The first two of
these findings, particularly as they show that the conduct af-
fected the entire bargaining unit during the critical preelection
period of August 26, 1993 (the date the petition was filed),15 to
October 21, 1993 (the date the election was concluded),16 con-
stitute interference with the election and require that the elec-
tion results be set aside and a new election directed. (Because
the November 9 letter came after the election, it does not con-
stitute a ground for setting aside the election. Mountaineer
Bolt, id.) Because of these findings, I need not write exten-
sively on the surveillance allegation.
B. Alleged Surveillance
1. Facts
Beginning in early August 1993, union representatives met
after work with groups of employees at Zebulon Park, a public
park a mile or so from the plant. Annie White testified that
there was one meeting a week until the election. The alleged
surveillance is that, on leaving the plant after work, Holder, on
at least three occasions, drove by the park where the employees
were meeting, and that, on at least one of these occasions,
turned around, and drove slowly by again before leaving.
To fit into the “critical’’ preelection period, any incident in-
volving Holder must have occurred on or after August 26.
Because Holder ceased being a possible agent on August 16,
any surveillance by him would be too late to impute to Naomi
if it occurred after August 16, and too early if it occurred before
August 26. The Union does not articulate a theory on how its
surveillance objection can get around this time warp. The only
testimony relied on by the Union points to two specific dates in
September by employee Gordon D. Driver. (2:324, 329–330.)
Ruth Ann Evans is unable to say whether the two drive-bys she
observed occurred before or after mid-August. (2:301.) Annie
White describes three incidents, but is unable to put a time
frame on any of them beyond the fact that all were before the
election. (1:167–169.)
Although the evidence clearly falls short of a prima facie
case in support of the surveillance objection, I nevertheless
shall give a brief summary of Holder’s key points. Testifying
that he periodically takes the park route from the plant, Holder
acknowledges seeing an employee group there on one occasion
when, on leaving work, he was proceeding to a nearby car
wash. (7:1524.) Holder denies (7:1535) seeing employees there
on any other occasion, and he denies (7:1524) ever turning
around to drive past. As it is a park area, Holder recalls that the
speed limit on the street is 25 miles per hour (7:1524), and An-
nie White appears to concur (1:176). On August 26 Plant Man-
ager Miller told Holder that the Union left a petition at the
front, and he asked if Holder knew anything about a union.
Holder said no, but “maybe that’s the reason why the people
was [were] in the park.’’ (7:1519–1520, 1536, 1539.)
2. Conclusions
I need not reach the agency matter. Assuming that the evi-
dence, somehow, meets the threshold requirement of a prima
facie case (and it does not do so because there is no evidence
that Holder served as a leadperson or disputed supervisor be-
yond August 16 and, more in point, beyond August 26), I credit
Holder that he only saw the employees on the one occasion
before August 26. Even if he turned around and drove slowly
back by, a matter I do not resolve, there would be no objection-

15 Royal Laundry, 277 NLRB 820, 822 fn. 3 (1985).
16 Mountaineer Bolt, 300 NLRB 667 (1990).
NAOMI KNITTING PLANT 1313
able conduct because there is nothing to indicate that this inci-
dent was anything more than idle curiosity. The Union chose
to meet with the employees at a public park, about 100 feet off
the street, about a mile from the plant, and in open view of
anyone driving by. Holder did not usually go that way, but two
or three times a month he did. When a union elects to hold an
employee meeting in a public place, it may not complain if a
supervisor, as a matter of coincidence and from curiosity (as
Holder here, I find), observes what is happening. C.P.F. Corp.,
303 NLRB 316, 321 fn. 25 (1991). Accordingly, I shall rec-
ommend that the Board overrule the Union’s Objection 8.
C. Recommendations
Based on the foregoing, I recommend that the Board over-
rule Objections 1, 4, 5, and 8, and that it sustain Objections 2
(threat of loss of benefits), 3 (granted benefits of picnic tables
and refrigerator), and 7. Although Objection 7 alleges a prom-
ise of a COLA, the Regional Director’s report (GCX 1g at 4)
treats the allegation as a threat of withholding. The evidence in
support of complaint paragraph 9(e) shows a threat to postpone
a scheduled COLA. With these recommendations, I further
recommend that the Board set aside the October 20–21, 1993
election in Case 11–RC–5954 and direct that a second election
be conducted.
CONCLUSIONS OF LAW
1. By engaging in certain conduct from mid-October 1993 to
November 9, 1993, constituting interference, restraint, and
coercion of its employees, Respondent Naomi Knitting Plant, a
Division of Andrex Industries Corporation, has violated Section
8(a)(1) of the Act.
2. By initiating, forming, assisting, and dominating the De-
sign Team committee beginning about December 1994, and
continuing thereafter, Respondent Naomi has violated Section
8(a)(2) and (1) of the Act.
3. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
4. Naomi has not violated Section 8(a)(1) as additionally al-
leged, nor Section 8(a)(3), nor Section 8(a)(5) as alleged.
5. There is an insufficient basis for granting the General
Counsel’s request for an order requiring Naomi to recognize
and bargain with the Union.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]