S. Lichtenberg & Co., Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1989

296 N.L.R.B. 1302 (N.L.R.B. 1989)

1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
S. Lichtenberg & Co., Inc., and its Subsidiaries,
Samson Mfg . and Delila Mfg . and Amalgamat-
ed Clothing and Textile Workers Union, AFL-
CIO-CLC, Petitioner. Case 10-RC-13622
October 11, 1989
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
The National Labor Relations Board , by a three-
member panel , has considered objections to an
election held April 15, 1988, and the attached deci-
sion and report on objections of Administrative
Law Judge Phillip P. McLeod recommending dis-
position of them . The election was conducted pur-
suant to a Decision and Direction of Election
issued by the Regional Director for Region 10. The
tally of ballots shows that of approximately 633 eli-
gible voters, 413 cast ballots for and 185 against the
Petitioner , with 3 void and 21 challenged ballots,
an insufficient number to affect the results.
The Board has reviewed the record in light of
the exceptions and briefs ,' has adopted the judge's
findings2 and recommendations , 3 and finds that a
certification of representative should be issued.
1. We have reviewed under the standard set
forth in Athbro Precision Engineering Corp., 166
NLRB 966 (1967), the judge's overruling of the
Employer's objection that a Board attorney's com-
ments in a local newspaper article published 5 days
i The Employer 's motion for reconsideration of the Board's July 31,
1989 denial of its motion to reopen the record is denied as raising nothing
not previously considered (Member Cracraft deferred ruling on the
original motion to reopen until consideration of the case in chief She
now concurs in her colleagues ' denial of the motion to reopen as well as
the motion for reconsideration ) Further , we affirm both the judge's evi-
dentiary rulings and the Board 's November 25, 1988 Order concerning
the production of the Union 's "house call reports" for the reasons set
forth by the judge at the hearing We also affirm the judge 's evidentiary
rulings limiting testimony on the subjective reactions of employees to al-
leged misconduct , because the judge clearly was guided by the Board's
objective-view standard . See, e g , Worths Stores Corp., 281 NLRB 1191,
1193 fn 6 ( 1986).
The Employer' s motion to strike the General Counsel 's brief filed in a
contemporaneous unfair labor practice proceeding involving the parties.
and its apparent exception concerning alleged ex parte communications
involving the Regional Director-an issue considered by the Board in de-
nying the Employer 's request for review on April 15 , 1988-are both re-
jected as not being properly before us in this objections case.
2 The Employer has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
a We find no merit in the Employer 's exception concerning the judge's
failure to apply the "third -party conduct" standard to employee Portia
Bostic's "foot " threat made to employee Loma Morgan As analyzed by
the judge and as set forth in the record , this incident simply did not
create a general atmosphere of fear and reprisal making impossible a free
election choice See , e g , Price Bros. Ca, 211 NLRB 822, 823 (1974)
before the election impaired the Board's appear-
ance of neutrality. The Board attorney's statements,
read in the context of the entire article , which in-
cluded statements of the Employer's attorney as
well, no more than explained , in an accurate (al-
though colloquial) manner, the nature of the allega-
tions of an unfair labor practice complaint that had
recently issued against the Employer, pursuant to
the Regional Director's investigation of contempo-
raneous charges filed by the Union. That complaint
had already been copied by the Union and widely
distributed among unit employees , so the Board at-
torney's statements did not refer to a matter whose
existence was unknown to the employees. The arti-
cle repeatedly asserted that the complaint against
the Employer involved "allegations." It also noted
that the decision on the complaint would be made
by a special magistrate . Nevertheless, some confu-
sion among employees , not familiar with Board
processes , concerning the nature of the Board's
role in the pending election was both reasonable
and unavoidable . That confusion, however,
stemmed not from the attorney's comments, but
from the exercise of the Regional Director's dual
responsibilities , on behalf of the General Counsel in
the unfair labor practice proceeding , and on behalf
of the Board in the representation proceeding. In
these circumstances, the mere fact that the attorney
described the position the General Counsel was
taking in the complaint cannot reasonably be found
to constitute objectionable conduct destructive of
Board neutrality under the Athbro standard.
2. We agree with the judge for the reasons stated
in his opinion that , under the standard of Sewell
Mfg., 138 NLRB 66 (1962), neither the union nor
its agents engaged in an effort to inject inflamma-
tory, irrelevant, racist appeals into the organizing
campaign , so there is no reason on that account for
setting aside the election. Accord: Beatrice Grocery
Products, 287 NLRB 302 (1987), enfd. mem. sub
nom. Martha White Foods v. NLRB, 872 F.2d 1026
(6th Cir. 1989). See also Brightview Care Center,
292 NLRB 352 (1989).
Although Sewell applies, by its terms, only to
parties, i.e., to unions , employers , or their agents,
the Employer also cites prejudiced remarks and
conduct of individual employees who served as in-
plant organizers as grounds for setting aside the
election .4 Even assuming the Sewell standard
4 We agree with the judge that the in-plant organizers were not agents
of the Union . We particularly note that the individual employees who
designated themselves as members of the in-house organizing committees
appear to have been part of a somewhat transitory , amorphous group
which , in any event, was not the Union 's sole link with the unit employ-
ees See , e g., United Builders Supply, 287 NLRB 1364 ( 1988) Rather, the
Union 's professional staff personally and actively directed the Union's
Continued
296 NLRB No. 167
S. LICHTENBERG & CO.
should be applied to such persons , we would not
find that the isolated and casual remarks cited by
the Employer fatally tainted the Union 's campaign.
Of the various employee remarks on which the
Employer relied , we address only one , because it
was disseminated in the Delila plant and repeated
at a union meeting and because it is not entirely
clear what the judge found to be the facts.
We will assume for purposes of this case that, at
the meeting in question , employee Ben Johnson re-
ported that Rosie Dye, a first -line supervisor, had
allegedly stated earlier to another supervisor that
she did not want the Union to come in "because a
bunch of niggers would be running the plant" and
that they should be sent "back to the cottonfields."
(Both Johnson and Dye are white.)5 We will fur-
ther assume for purposes of this case that Dye had
not actually used the words reported by Johnson at
the meeting.
First , we note that the evidence establishes that
in the Delila plant, where the report of Dye's al-
leged remarks was disseminated in various forms in
casual conversations among employees's reports of
Dye's denial were also widely disseminated.
Second , there is no evidence that the Union sought
to take advantage of anything it reasonably be-
lieved to be a falsehood . In fact, on first hearing
the report , Union Organizer Russo demanded that
Johnson swear to his version of the statement
before a notary . Finally, as in Beatrice, supra, we
note that the statement was not an attack on a
racial group , but an effort to denounce a bigoted
statement.
In sum , neither what we will assume to be a mis-
taken report of Dye's comments, nor any other
racial references relied on by the Employer , "so in-
flamed and tainted the atmosphere in which the
election was held that a reasoned basis for choos-
ing or rejecting a bargaining representative was an
impossibility ." Sewell Mfg., supra, 138 NLRB at 72.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Amalgamated Clothing and
Textile Workers Union, AFL-CIO-CLC and that
it is the exclusive collective -bargaining representa-
tive of the employees in the following unit:
election campaign Further , when the in -plant organizers engaged in the
conduct that the Employer claims is objectionable , they did not represent
that they were functioning in their capacity as organizers or representing
the views of the Union
S Several employees testified that this or a similar statement comprised
Johnson 's report of the remark made by Dye . Johnson testified that he
reported only the first part of the statement Dye denied having made
any such statement, and the judge did not resolve the credibility conflict
6 It is not established that reports of Dye 's alleged remarks reached the
larger Samsons plant.
1303
All production and maintenance employees, in-
cluding shipping and receiving employees, em-
ployed by the Employer at its Waynesboro
and Louisville, Georgia, facilities, but exclud-
ing office clerical employees , guards, and su-
pervisors as defined in the Act.
Curtis L. Mack, Esq. and Jeffrey B. McClellan, Esq.
(Mack & Bernstein), of Atlanta, Georgia, for the Em-
ployer.
David M. Prouty, Esq., of New York, New York, for the
Union.
DECISION
(Report on Objections)
STATEMENT OF THE CASE
PHILIP P . MCLEOD, Administrative Law Judge. On
January 19, 1988 , the Amalgamated Clothing and Textile
Workers Union, AFL-CIO-CLC (the Union), filed a pe-
tition with Region 10 of the National Labor Relations
Board (the Board), seeking to represent certain employ-
ees of S. Lichtenberg & Co., Inc., and its subsidiaries,
Samsons Mfg. and Delila Mfg. (the Employer). Pursuant
to a Decision and Direction of Election dated March 21,
1988, an election by secret ballot was conducted on
April 15 , 1988, among the employees in an appropriate
bargaining unit consisting of:
All production and maintenance employees, includ-
ing shipping and receiving employees , employed by
the Employer at its Waynesboro and Louisville,
Georgia, facilities , but excluding office clerical em-
ployees, guards, and supervisors as defined in the
Act.
Following the election an official tally of ballots was
served on the parties which showed that of approximate-
ly 633 eligible voters, 413 cast valid votes for, and 185
cast valid votes against , the petitioning union. There
were 21 challenged ballots and 3 void ballots . The chal-
lenges were insufficient to affect the results of the elec-
tion. On April 22, 1988 , the Employer filed timely objec-
tions to the conduct of the election , and a copy thereof
was served upon the Union . On May 12, 1988, the Re-
gional Director for Region 10 of the Board issued an
order directing that a hearing be held on issues raised by
the objections and consolidating that matter with certain
unfair labor practice cases on which a complaint and
notice of hearing had already issued.
Unfair labor practices charges were filed by the Union
against the Employer in Cases 10-CA-23179, 10-CA-
23363, 10-CA-23429-1, 10-CA-23465, 10-CA-23510,
and 10-CA-23568 on various dates between February 10
and July 25, 1988 . All of the issues raised by these cases
and by the objections were eventually consolidated for
hearing . Thereafter, the Union filed a motion to sever
the election objections from the unfair labor practice
cases . This motion was denied , and the Union sought
special permission to appeal that denial to the Board. Al-
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
though the Board denied the special appeal , Counsel for
General Counsel thereafter sought a modification of the
Board's order to allow the Division of Judges to immedi-
ately proceed to hearing on the objections matter. The
Board partially granted Counsel for General Counsel's
motion and directed that after the consolidated hearing
opened , the objections matter be severed from the unfair
labor practice cases, that a hearing first be held on the
objections issues so that a separate decision therein might
issue as soon as possible , and that the unfair labor prac-
tice cases thereafter be heard in a subsequent separate
hearing.
The objections hearing herein commenced on August
30 and continued on various dates thereafter until Octo-
ber 27, 1988.1 After the parties were given time to file
briefs in the representation case, the unfair labor practice
hearing commenced on December 12, 1988 , and contin-
ued on various dates until March 21, 1989 . Pursuant to
the Board 's Order, a separate decision will issue hereaf-
ter concerning issues raised by the unfair labor practice
cases.
At the hearing herein , all parties were represented and
afforded full opportunity to be heard , to examine and
cross-examine witnesses , and to introduce evidence. Fol-
lowing the close of the hearing, both the Employer and
the Union filed timely briefs with the undersigned which
has been duly considered.
On the entire record in this case , and from my obser-
vation of individual witnesses who testified before me, I
make the following
FINDINGS OF FACT
I. OBJECTIONS RELATED TO APPEALS BASED ON RACE
Objection 1
Petitioner , by and through its officers , agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by impermis-
sibly appealing to racial prejudice.
Objection 11
Petitioner , by and through its officers , agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election , interfered,
restrained , and coerced employees and appealed to
racial prejudice by threatening that if the Union
was voted in, Caucasian employees , supervisors,
and managers would be fired.
Organizing efforts began in late 1987 when Union or-
ganizer Joan Carter began conducting small group meet-
ings with employees of Delila Mfg., located in Louis-
ville, Georgia . The first large group union meeting was
conducted in early January 1988 by Carter and fellow
union organizers Fair Mae Walls and Monica Russo with
employees from both Delila Mfg. and Samsons Mfg.
' On October 25, following the presentation of the Employer' s case, I
granted a motion by the Union to dismiss Objections 7, 8, 9, 10 , 14, and
17. Accordingly, those objections are not discussed herein
Before making a final decision whether to attempt to
organize employees , the Union interviewed at least some
employees at both Samsons and Delila to gather informa-
tion about the Employer and about employee working
conditions . Based on this information , the Union pre-
pared a "fact sheet for organizers " in which this informa-
tion was summarized . The Employer argues that while
this sheet lists areas of employee unhappiness , it does not
state or imply that employees felt subject to racial dis-
crimination . The fact sheet is a 1-page document which
briefly describes the Company's history, product infor-
mation , and working conditions . The brief section devot-
ed to working conditions states in its entirety:
Wages at both plants average less than $5 an
hour . Raises are given every year and are about 5
to 10 cents , depending how your supervisor likes
you. There is very little communication between su-
pervision and employees . For example , raises are
not announced and work rules are posted , rarely
discussed.
While certain employee complaints might be implied
from reading this brief description of working conditions,
the fact sheet does not specifically attempt to list or de-
scribe employee complaints or grievances . The Employ-
er is correct that there is no mention of employee dis-
crimination based on race . The items mentioned in the
fact sheet are simply those traditionally addressed in
union campaigns : wages, raises, supervisory discrimina-
tion, and a lack of communication with employees.
In January ' 1988, the Union began a serious organizing
drive at both plants. Walls and Carter were assigned to
Work full time at the Samsons plant in Waynesboro,
Georgia, while Russo was assigned to work full time or-
ganizing employees of Delila in Louisville. All three or-
ganizers rented motel rooms near the plants to which
they were assigned . Early in the campaign , organizers
handed out leaflets early in the morning to employees
entering work at the two plants . As more employees
began to respond and show interest in the Union, orga-
nizers began to meet with employees in their motel
rooms on a daily basis . The group of active union sup-
porters which thus formed began to be referred to by the
Union and employees themselves as "in -plant organiz-
ers." Union organizers and members of this core employ-
ee group then began paying visits to other employees at
their homes to solicit support for the Union. After each
visit, the union organizer , and less frequently the em-
ployee "in-plant organizer" would fill out a form entitled
"House Call Report" summarizing the interview. These
house call reports include sections titled "List Key
Issues" and "Comments." It is apparent from an exami-
nation of these forms that in the "Issues" section , the in-
dividual filling out the form used it primarily to list
issues of concern raised by the individual employee in
their conversation . Before any of these "House Call Re-
ports" were ordered to be produced or placed in evi-
dence, organizers Fair Mae Walls and Joan Carter both
testified that people using the forms had been instructed
how to use them , that people making house calls were
instructed and understood that employee grievances
S. LICHTENBERG & CO.
should be recorded in the "Issues" section, and that the
Union relied on information in these reports to focus on
issues of significance to employees . The very existence of
the forms and the information compiled on the forms
proves this as well.
Walls testified that during the Union campaign, she
made approximately 60 to 70 house calls on employees
and that 10 to 15 employees raised racial discrimination
as an issue of concern to them . Walls testified that at a
minimum , one out of every seven employees visited
raised the issue of racial discrimination . Prior to this tes-
timony, the Union had resisted turning over these house
call reports to the Employer , and I had not required
them to do so, although I had inspected the reports in
camera . As a result of Walls' testimony concerning the
frequency of complaints about racial discrimination, I or-
dered that the house call reports be turned over. Five
hundred eighty-nine house call reports were turned over
to the Employer. It was later learned that an additional
55 house calls reports existed which were not turned
over because the individuals were no longer employed.
In order to avoid unnecessary delay, I inspected those
additional 55 reports and observed that none contained
or mentioned of any racial discrimination as an issue to
the employee . If Walls' testimony were to accurately re-
flect the extent to which racial discrimination was raised
by employees as a significant issue, approximately 90 of
the 644 house call reports should reflect racial discrimi-
nation as an issue . However, only 10 make any mention
of racial discrimination as an issue of concern to the em-
ployee . I believe that Walls and other union representa-
tives who testified on this point purposely exaggerated
the extent to which racial discrimination was perceived
as a significant issue by employees . This conclusion is
particularly reinforced by the testimony and demeanor of
union representatives who testified on this issue both
before and after I ordered that House Call Reports be
turned over to the Employer . Initially , Walls testified to
the meticulous recording of numerous employee refer-
ences to racial discrimination as a key issue in House
Call Reports . When I directed that these reports be
turned over, and they were introduced into the record,
revealing the lack of references to racial discrimination,
subsequent union witnesses , including Walls, alleged that
employee references to racial discrimination were preva-
lent but were not recorded . Union representatives then
testified to how sloppy and incomplete the record keep-
ing was . Indeed , in its post-hearing brief, the Union
argues that House Call Reports "provide, at best, an ex-
tremely sketchy picture of the workers ' concerns." I
reject this argument . A review of the 644 house call re-
ports leads me instead to the conclusion that they repre-
sent a very clear picture of employee concerns in this
union campaign . An examination of those reports reflects
that the overwhelming concerns of employees were
those prevalent in any union campaign , i.e., wages,
hours, seniority , layoffs, production rates, health insur-
ance, favoritism by supervisors , nepotism , and the failure
to promote or layoff by seniority. The house call reports
also reflect that racial discrimination was indeed per-
ceived to be an issue by some employees , although not
nearly to the extent suggested by the Union . It does not,
1305
however, lead one to the conclusion that racial discrimi-
nation was never an issue of concern to employees or
that it was injected into the campaign by the Union as an
irrelevant appeal to galvanize support among black em-
ployees . Rather, it was indeed an issue even from the
start to at least a small number of employees.
In addition to the organizing efforts already described,
the Union held weekly meetings for and with employees.
Meetings were held for Delila employees on Tuesday
nights in Louisville at the American Legion hall. Meet-
ings were held for Samsons employees on Wednesday
nights in Waynesboro at the Mystique Lounge. Occa-
sionally, employees from both plants met together in one
town or the other.
During the course of the organizing campaign , Russo,
Walls, and other union representatives encouraged and
helped "in-plant organizers" form a subgroup which
wrote, edited , and distributed a newsletter to other em-
ployees . The Union also brought in a "health and safety
representative" who spoke to employees about their
rights under OSHA. Thereafter, the Union encouraged
and helped form another subgroup which attempted to
procure health and safety records from the Employer in
order to examine the types and frequency of occupation-
al injuries. This subgroup was referred to by the Union
and by employees as the "Safety Committee."
At the request of the Union, on March 3, 1988, Cor-
etta Scott King, wife of the late Dr. Martin Luther King,
Jr., wrote a letter to employees of Samsons and Delila.
This and other letters written by prominent blacks which
were sent to employees by the Union are cited by the
Employer as evidence that the Union incited racism
among employees as a way of garnering support . I note,
however, that the letter by King states in relevant part:
The [Union] has labored long and hard to help
working people of all races achieve better wages and
working conditions and dignity on the job. I can
assure you that you can count of this union to pro-
vide honest, committed representation for all of its
members . [Emphasis added.]
By letter dated March 8, 1988, the Union invited and
requested Rev. Joseph Lowery , president of the South-
ern Christian Leadership Conference , to speak to bar-
gaining unit employees at a rally on March 27. As noted
by the Employer, this letter specifically told Lowery
that approximately 95 percent of the Employer 's employ-
ees are black. As also correctly noted by the Employer,
this letter does not suggest that racial discrimination
against employees is an issue . The only reference in the
letter to any matter which might be considered a cam-
paign issue is the statement "the Company, which pays
barely over the minimum wage, has chosen to dig its
heel in and fight the workers' efforts to organize."
On March 17, the Rev. Jesse Jackson, who was then
campaigning to be nominated for president by the Demo-
cratic Party also wrote to employees . The letter begins,
"Dear Brothers and Sisters." While it is true these are
terms commonly used by many blacks to address other
blacks, this introduction is nevertheless somewhat ambig-
uous in that it could just as easily refer to brothers and
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sisters in the union . For the sake of considering the Em-
ployer's argument , I am prepared to assume that this ad-
dress refers to racial rather than union affinity . Be that as
it may, I find Jackson 's greeting to be nothing more than
a recognition that for all practical purposes , his audience
is comprised of black men and women . This is a fact
which can hardly be disputed since everyone agrees that
the work force at Samsons and Delila is comprised of ap-
proximately 95 percent black employees . Other than the
introduction , Jackson 's letter contains no statement, ref-
erence, or appeal which can in any way be construed as
either racial or racist. Rather, the entire tone of the letter
is capsulized in the first paragraph wherein Jackson
refers to what he considers to be the need "to build a
better future through unionization ." Jackson advises the
reader, "working people can achieve real power by or-
ganizing strong unions."
On March 27, Rev. Joseph Lowery addressed a rally
held for both Samsons and Delila employees . Several
witnesses described Lowery's address, but none were
able to recite Lowery's speech in any significant detail.
There is no real dispute , however, as testified to by
newspaper reporter Marty Jackson who attended and re-
ported on this event and who had heard Lowery speak
before, that Lowery's speech was essentially the same as
one he has given to other groups on other occasions.
Lowery recalled the early days of civil right marches
and events he had personally been involved with along-
side Rev. Martin Luther King, Jr. Lowery made refer-
ence to earlier campaigns to eliminate discrimination, and
told employees that they needed to stand up for their
rights and stick together . Using a biblical fable, Lowery
encouraged employees to be "giants" rather than "grass-
hoppers ." This call to "be a giant" became one of the
rallying cries of the Union's campaign . At some point
during the meeting at which Lowery spoke, employees
were lead in singing the well-known civil rights anthem,
"We Shall Overcome."
Rev. James Orange, a local civil rights leader and
labor activist , also addressed groups of Lichtenberg em-
ployees during the campaign . Orange, like Lowery, pri-
marily discussed the history of racial segregation and
mistreatment of blacks, and his own role in earlier civil
rights marches and activities . While the specific remarks
are not recorded , it is not disputed that Orange made re-
marks about whites mistreating blacks which caused one
white union representative to hold out his arms to the
crowd of employees and inspect them . This, in turn,
caused Orange to remark to the white union official, "no
offense to you, but you know we blacks have always had
to fight and struggle , you know that this was true."
Following Lowery's March 27 speech to employees,
Lowery wrote a letter to employees dated April 8. The
letter states in relevant part:
Thirty-one years ago , Dr. Martin Luther King, Jr.,
and others, founded (Southern Christian Leadership
Conference) and served as its first president based
on the idea that the struggle by workers for union
organization was a key element in our fight for civil
rights . The only way progress is possible is when
people come together to help themselves , just like
you're doing at Samsons and Delila.
I encourage you to vote yes for economic justice,
dignity, and respect on the job . The Company may
think of you as grasshoppers but we are giants and
our time has come.
I find nothing in this letter which appeals to racism or
bigotry on the part of black employees . Rather, this
letter addresses the struggle for "economic justice, digni-
ty, and respect on the job," all relevant matters of con-
cern in any union campaign.
The exhibits ' herein include more than 50 different
campaign leaflets distributed by the Union between Janu-
ary 19 and the election on April 15. In addition , employ-
ees from Delila wrote letters to fellow employees which
they signed individually but which the Union typed and
printed for them . Employees also composed and distrib-
uted two editions of the newsletter during the campaign.
A review of these documents reveals that racial discrimi-
nation received relatively little mention . One exhibit, a
leaflet titled , "Now The Company Is Trying To Win Us
Over," is a four-page document containing brief state-
ments from seven employees about why they support the
Union and will to continue to do so, and statements from
an additional eight employees who comment on the rep-
resentation case hearing . Of the seven who comment
about supporting the Union, two employees, Doris
Mobley from Samsons and Gloria Roberts from Delila,
comment on instances of racial discrimination against
them by the Employer. These statements, however, do
not appeal to racial solidarity or racism . They both de-
scribe specific instances in which the two employees be-
lieve they were discriminated against by the Employer
because of their race. By and large, the Union's appeals
to employees are overwhelmingly of the nature tradition-
ally utilized in all union campaigns : appeals to economic
betterment , having some voice in establishing working
conditions, and exhortations to stand united in order to
gain victory and self-respect. The insignificant number of
times that race is even mentioned in union literature
leads me to the conclusion that neither race, nor racial
discrimination , nor racial solidarity, nor racism served as
a major campaign issue by the Union.
The Employer presented some testimony , discussed in
detail below, that certain avid union supporters exhorted
black employees to support the Union by statements to
the effect that black employees needed to stick together.
I have carefully examined the Union's literature distribut-
ed to employees between January and April prior to the
election . In this printed literature , which most clearly re-
flects the Union's official position , I do not find a single
plea for employees to "stick together" which might be
considered a racist appeal . A good example of the kinds
of appeals made by the Union to employees to "stick to-
gether" is found in a 12-page pamphlet titled , "We're
Voting 'Yes' . . . For A Better Future." In that pam-
phlet, one group of employees is quoted as saying,
"There are so many things that Samsons and Delila can
give us. We can be like a family working together to ac-
complish better things in years to come . We can make it
S. LICHTENBERG & CO. 1307
work if we stick together." A poem written by one em-
ployee states in relevant part, "More things could be
done to better our lives, we have to support our children
and wives . We need help y'all! Let's stick together just
like glue, and stand as one instead of two." Another em-
ployee is quoted as saying , "I'm looking for the money
and the benefits , like insurance . Everyone should be
treated fair . By everyone agreeing and sticking together,
we can negotiate what we want ." This document quotes
many other employees who expressed the needed to
"stick together ." It is not necessary to quote or even par-
aphrase each of these statements in this decision . Suffice
it to say that the context of every statement shows clear-
ly that employees both understood and expressed this
need to "stick together" in the context of bettering their
wages, hours, and working conditions .'Not one of these
statements disseminated by the Union contains an appeal
for employees to stick together for racial reasons.
It is not unusual for a party's official position to be ex-
pressed somewhat differently in individual discussions
between people than it is in printed form. There is con-
siderable evidence that that is the case here . Employee
Frances Morgan testified that employee George Cooper,
who was one of the "in-plant organizers ," told her that
"blacks had to stick together for the Union." Delila em-
ployee Sharon Walden testified she heard employee
Gloria Roberts say that "blacks had to stick together be-
cause the white folks would try to take over ." Numerous
employees at both plants testified that they frequently
heard the phrase "blacks have to stick together"
throughout the two plants during the union campaign.
Employee Portia Bostic, another of the "in -plant orga-
nizers," admitted that she told fellow black employees
that "blacks need to stick together" and told white em-
ployees "that if they wanted to join our union , they're
going to have to be sure that they want it." Employee
Alberta Jordan testified that she overheard a group of
"in-plant organizers," including employees Michael
Reeves, George Cooper, MacArthur Thomas, and Bar-
bara Lewis say to one another, "these white people they
got there's, you know, we need ours too, you know. We
got to stick with the Union , we've got to hang in there
and don't give up, you know." Comments with a fairly
obvious racist overtone were not limited , however, just
to employees speaking amongst themselves . Employee
Velma Williams testified that on one occasion , union or-
ganizer Monica Russo told employees , "You shouldn't
listen to what they say. Those white people don't want
this for you." Employee Mattie Flourney corroborated
Williams, testifying that Russo, who is herself white, said
to employees , "We shouldn 't let these white people tell
us what to do."
The record reflects a very stark contrast between the
Union 's official position as expressed in its campaign lit-
erature and that which was sometimes voiced in informal
conversations between employees . A union leaflet enti-
tled "Haven ' t you Heard Mr . Lichtenberg" clearly states
the Union's official position. At the bottom of this leaflet,
in large and prominent letters is the slogan "Let's Stick
Together." Immediately above that slogan is a paragraph
which reads:
We must be strong in order to make Samsons and
Delila better places to work. That's why we need to
stick together . We are not just having an election,
we are building a strong union !!! We ALL are the
union!!!
The unofficial position expressed by employees is reflect-
ed not only in the various statements quoted above, but
perhaps most severely in a statement by "in-plant orga-
nizer" Portia Bostic. Bostic admits that in a conversation
with fellow shipping department employee Kathy Willis,
Bostic told Willis that if the Union won the election,
white employees would all be fired. Bostic claims that
she meant this as a joke. Frances Skinner, another white
employee in the shipping department, overheard the
statement and took it as a serious threat. Bostic later
heard the matter discussed between Skinner and white
employee Nancy Allen. According to Bostic, she told
Skinner and Allen that the statement was not true, but
she admits also telling them that they could believe
whatever they wanted to believe. Thereafter, the rumor
was disseminated among shipping department employees,
a racially mixed group. Bostic and other black employees
who were "in-plant organizers" did nothing to dispel the
rumor. Joe Miller admitted that a white employee con-
fronted him about the rumor and asked if it was true. In-
stead of attempting to dispel the rumor, Miller merely
laughed and walked away.
Union supporters and union organizers, however, were
not the only ones guilty of making statements with fairly
obvious racist overtones. Josie Bruni, a white supervisor
in the drapery department at the Samsons plant, fre-
quently spoke to individual employees in an effort to dis-
suade them from supporting the Union. Employee Jerry
Edwards testified that on one occasion, Bruni ap-
proached him and asked how he liked his job. Edwards
replied that he liked the job, but that the pay was too
low. Bruni responded that she thought the Lichtenbergs
provided a good work place and "had gotten a lot of
people out of the cotton fields." Employee Zelda Carter
testified to a similar conversation with Bruni. Bruni told
Carter that the Lichtenbergs were good people to work
for and that "at -least it's better than working in the
cotton fields, don't you think?" Carter replied that she
had never worked in the cotton fields. Bruni then told
Carter that she was "one of the lucky ones." Bruni ad-
mitted making the statement to Edwards about the
cotton fields, and while she did not specifically recall
making a similar statement to Carter, Bruni admitted that
she may have done so. Edwards told some of his co-
workers about the statement later that same afternoon,
and at the union meeting that very night, Edwards re-
ported the conversation to those present. The statement
then circulated throughout the plant, becoming slightly
altered as it passed from person to person. Some wit-
nesses reported that they heard the rumor Bruni had said
that workers should be glad the Lichtenbergs got "you
blacks" out of the cotton fields. Bruni denied using the
word "blacks," but neither Edwards nor Carter indicated
that she used that word. What is clear is that both Ed-
wards and Carter understood Bruni to be making a racial
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reference , that such an interpretation is not unreasonable,
and they were offended by Bruni's remark.
Two reports and one rumor circulated throughout the
Samsons and Delila plants concerning other racist state-
ments made by white supervisors and a white employ-
ee.2 It was widely reported that early in the union cam-
paign, Supervisor Rosie Dye was overheard saying to
Supervisor William Pettit that the main reason she did
not want the Union to represent employees "is because a
bunch of niggers would be running the plant ." Supervi-
sor Dye denies making this remark , or any statement like
it. Employee Ben Johnson , who is white, testified, how-
ever, that he heard Dye make the statement to Pettit.
There is no question that Johnson told union representa-
tives and fellow employees about overhearing this state-
ment, both in private conversations and at a union meet-
ing. The unfounded report, which may properly be
called a "rumor," also circulated during the campaign
that Supervisor Pettit was overhead saying the Employer
had recently hired security guards "to keep all the nig-
gers out ." Finally, it was reported by black employee
Willie Mae Bradford that she overheard white employee
Loma Morgan make a racially derogatory remark to the
effect that black employees could not read.
Only the alleged statement by Supervisor Dye and re-
ported by Johnson is attributed to someone who is even
alleged to be an agent of the Union , and even Johnson's
status as an agent by virtue of his being an "in -plant or-
ganizer" is in serious dispute . The Pettit rumor was re-
ported by one employee, Adam Cooper, and attributed
to another employee, Robert Walker . Both employees
also testified , Cooper again attributing the statement to
Walker , and Walker again denying the statement. Ac-
cording to Cooper, Walker did not hear Pettit make this
remark , but reported it to Cooper as a rumor . Pettit testi-
fied that when he heard about the rumor, he approached
Walker with whom he had in fact spoken on an earlier
occasion about security guards . Walker denied spreading
the rumor about Pettit . Walker testified that he never
made such a statement to Cooper , denied that he ever
heard Pettit actually make such a remark , and further
testified that Pettit never asked him about the alleged
statement . The testimony of Walker conflicts with both
Copper, who says he heard the rumor from Walker, and
Pettit, who says he spoke to Walker about the rumor.
While Walker's credibility is therefore challenged on two
separate fronts, I find it unnecessary to resolve this credi-
bility conflict since neither the rumor nor the partici-
pants in it in any way involve the union campaign or the
Board -conducted election.
Neither was the alleged statement by Loma Morgan
attributed to anyone who was in any way connected
with the Union. Employee Willie Mae Bradford, who
was not even an "in-plant organizer ," testified that early
one morning in the ladies restroom she overheard em-
2 A rumor is "a story or statement in general circulation without con-
firmation or certainty as to facts " The Random House College Diction-
ary, 1980. Neither the statement attributed to Supervisor Dye nor that
attributed to employee Morgan are "without confirmation " In both
cases, a witness testified to overhearing the remark The credibility of the
alleged witness may be an issue, but the statement nevertheless is not
"without confirmation."
ployees Loma Morgan and Karen Lorenz discussing
union authorization cards . Bradford heard one of them
say that employees did not understand the wording of
those cards and then heard Morgan state , "the majority
of black people can't read or write." Bradford confront-
ed Morgan and Lorenz , asking them if they were refer-
ring to "us," meaning black workers at the plant.
Morgan and Lorenz both testified in essence that Brad-
ford misunderstood a conversation they were having and
took it personally. According to Morgan and Lorenz,
both of them simply expressed the viewpoint that many
employees, without referring to race, signed authoriza-
tion cards without reading them, or even were not able
to read them . Morgan testified that when they were con-
fronted by Bradford , Morgan told Bradford she was not
referring only to black employees because her own
father could not read . I find it unnecessary to resolve
any credibility dispute that may exist between Bradford,
Morgan , and Lorenz . What is absolutely clear and undis-
puted by everyone is that Bradford heard Lorenz make a
statement which Bradford thought was racially derogato-
ry toward her and other black employees . Bradford in
fact confronted Morgan about the statement . Morgan
denied that the statement was racial . Bradford , who be-
lieved that the statement was racially derogatory report-
ed the conversation to some of her fellow employees, but
there is no evidence that the statement traveled through-
out the plant . Further, Bradford testified without contra-
diction that she never told anyone from the Union about
the statement before the election . The remark does not
appear in any of the Union 's literature . In short, there is
no evidence to suggest that the Union was in any way
connected to this incident or tried to take advantage of it
in the campaign.
II. OBJECTIONS RELATED TO OTHER MATTERS
INVOLVING RACE
Objection 15
Petitioner , by and through its officers, agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by excluding
Caucasian employees from union meetings.
Objection 16
Petitioner, by and through its officers, agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by refusing
to permit Caucasian employees to receive or review
union literature and documents.
The Employer does not contend that any Caucasian
employee was actually denied entrance to a union meet-
ing. Rather, Objection 15 focuses on the fact that weekly
meetings for workers at the Samsons plant were held at
the Mystique Lounge, which several white employees
testified was a black night club.
The fact is not disputed that weekly meetings for the
Samsons employees were held at the Mystique Lounge,
which is located approximately 1-1/2 miles from the
Waynesboro plant. The Employer presented five white
S LICHTENBERG & CO.
employees who each testified they knew the union meet-
ings were held on Tuesday nights at the Mystique
Lounge. Each testified that they felt excluded from the
meetings because the Mystique Lounge was known to be
a black night club. All of the witnesses admit, however,
that they never made any attempt to go to any of these
meetings . Nor did any of these witnesses ever notify the
Union of their discomfort in attending a meeting at the
Mystique Lounge or suggest to the Union that meetings
be held in another location.
Union organizer Fair Mae Walls testified that the Mys-
tique Lounge was not the Union's first choice for a meet-
ing place . Walls recounted her efforts to secure at least
four other meeting places , including the American
Legion hall, the County Recreation Building, and two
churches . These efforts were unsuccessful . Walls finally
settled on the Mystique Lounge because it was available,
suitable in size for meetings , and in close proximity to
the town of Waynesboro. The Mystique Lounge is open
as a night club only on weekends , and therefore was not
open for business on the nights when the Union used it
for meetings . Walls and black employee Maxine Wash-
ington both testified , moreover , that in fact the Mystique
Lounge is not an exclusively black club and that on the
occasions when they have been there for social reasons,
they have both seen whites as well as blacks at the club.
Neither Walls nor Washington denied that the Mys-
tique is frequently by a predominantly black clientele
when opened as a lounge . The fact is undisputed , howev-
er, that bargaining unit employees who were the subject
of this union campaign are approximately 95 percent
black. The Union correctly points out that the racial
makeup of the clientele at the Mystique Lounge could
not possibly have been disproportionate in relation to the
racial makeup of the employee complement.
The Employer also alleges that Caucasian employees
were refused union campaign literature being distributed
by union organizers and black employees at the Samsons
and Delila plants . No evidence was presented concerning
the Delila plant . The same five white employees at Sam-
sons who testified that they felt excluded from union
meetings also testified that they were intentionally denied
union leaflets and campaign materials at the Samsons
plant gate . Employee Maxine Martin testified that on one
occasion a black woman wearing a union jacket who
was handing out campaign literature at the Samsons gate
turned away from Martin as she drove up. Martin con-
tinued through the gate . Martin admitted that after that
occasion , she never stopped or indicated any desire to
receive union literature . Employees Kathy Thames and
Candy Weeks who ride to work together felt they were
being avoided , but admit they never rolled down their
car windows or asked for leaflets . Employee Karen
Lorenz testified that although literature was not distrib-
uted to her as she approached the plant in her car, she
several times walked out of the plant and obtained leaf-
lets from union supporters . There is no indication she
was denied the material on those occasions.
Employees Tony Atwell and Delores Jenkins, both
black, both testified that they were instructed by union
organizers Walls and Carter, who are also both black, to
give leaflets to all employees . Atwell and Jenkins stated
1309
they distinctly remembered giving leaflets to employee
Kathy Thames on several occasions.
III. OBJECTIONS RELATED TO THREATS AND
PHYSICAL VIOLENCE
Objection 12
Petitioner , by and through its officers, agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election and threat-
ened and intimidated employees with physical harm
if they did not vote for or support the Union.
Objection 13
Petitioner , by and through its officers, agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by commit-
ting acts of physical violence against employees
who did not support the Union, including but not
limited to George Cooper physically attacking an
employee for exercising his right to refrain from
supporting the Union.
Objection 18
Petitioner, by and through its officers, agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by creating
an atmosphere of fear and violence in order to gain
support.
It is uncontroverted that in early February 1988, em-
ployee Michael Reeves , who was one of the "in-plant or-
ganizers," and employee Betty Turner had an argument
concerning the Union . Turner informed Reeves that she
no longer supported the Union , and stated that she
wanted her union authorization card returned . Reeves
became angry, told Turner she had been "brainwashed
by a white woman," and was a fool. Shortly thereafter
on that same day, Reeves told other employees what
Turner had said and then called Turner "a damn brain-
washed fool." Employees Betty Brown and Elizabeth
Wolmack testified that they heard Reeves say Turner
was a "damn brain -washed idiot who let a white woman
change her mind" and that Reeves "should have kicked
her ass." Reeves denies making the statement, but I
credit Wolmack.
The record reflects that Reeves made a somewhat
similar statement to employee Lisa Miller, but under al-
together different circumstances. Shortly before the elec-
tion on April 15, Reeves was passing out union stickers
to employees at the plant gate. Miller testified that
Reeves gave her a sticker and told her in a joking
manner that he would "kick her tail" if she did not wear
the sticker . Reeves does not deny the incident . In fact,
Reeves and Miller agree that Miller smiled and contin-
ued driving into the parking lot. For reasons which are
not at all clear, Miller mentioned the incident to her su-
pervisor . Miller testified, however, that she also told the
supervisor that Reeves jokes around like that all the time
and that he did not mean anything by it. Miller candidly
testified that she did not perceive the statement as a
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threat but rather as light-hearted joking. There is no evi-
dence that Reeves' statement to Miller was disseminated
to other employees.3
On February 22, 1988, employees George Cooper and
Andy Horton became involved in a brief altercation.
Cooper was an active union supporter and an "in-plant
organizer." Horton, whose mother is a supervisor, was
opposed to the Union. Employee Randy Williams and
Supervisor Bill Pettit both observed and testified con-
cerning this brief altercation . Williams, who was the
closer of the two witnesses , testified that the altercation
began by Cooper and Horton exchanging insults. Wil-
liams overheard Horton call Cooper a "motherfucker."
Cooper grabbed Horton, and the two of them struggled
briefly . Supervisor Pettit was approximately 50 feet away
from the altercation , but he too heard yelling and heard
Horton call Cooper a "motherfucker." According to
Pettit , he saw Cooper make some sort of swing at
Horton , after which the two men fell into some nearby
boxes. By the time Pettit walked from where he was to
where Cooper and Horton were , the altercation was
over . Neither Williams nor Pettit saw any actual punches
thrown. Both Cooper and Horton were taken to the
plant manager's office and fired immediately.
The Employer offers no evidence , and there is none in
the record, to show that the altercation between Cooper
and Horton had anything whatever to do with the Union
or the union campaign. Nor does the Employer offer any
evidence to suggest that at the time of this altercation,
Cooper was in any way acting as an agent of the Union.
The Employer offers evidence of one other alleged
threat of physical violence . During lunchtime on election
day, April 15, a television crew was outside the Samsons
plant interviewing employees. The Union had invited
employees to a rally and prayer service immediately pre-
ceding the balloting. A large crowd was on hand. Em-
ployee Loma Morgan, a known union opponent , was ex-
pressing her views about the election to the news media.
After the interview ended and Morgan was on her way
back to the plant, Morgan heard someone say , "Get back
inside before you get a foot." The fact that someone
made this remark to Morgan is undisputed. Doris
Mobley, herself an "in-plant organizer," testified that she
too heard the remark. Morgan testified before me that
when she heard the remark , she turned around , saw em-
ployee Portia Bostic , and realized it was Bostic's voice
she had heard . Bostic was also a very active union sup-
porter and an "in-plant organizer." Bostic denies making
this statement to Morgan . In a statement given by
Morgan a few days after the incident , Morgan states
only that "someone" made this remark. Employee Patri-
cia Davis, also an active union supporter and an "in-
plant organizer ," testified that she heard the statement,
and Davis herself attributes the statement to Bostic. In
spite of her denial , I find that it was Bostic who made
a Employee Alberta Jordan testified that on one occasion during a
break, she overheard employees talking about an alleged threat by
Reeves to Miller to "kick her ass" because Miller wanted to get her
union card back. There is no record evidence whatever concerning any
threat by Reeves to Miller concerning a union card I am inclined to be-
lieve that Jordan is confusing this matter with Reeves' statement concern-
ing Turner, discussed above
this statement to Morgan . When Morgan heard the
remark , she turned to the- group of union supporters
either to see who made the statement or to meet the
challenge . Rev. James Keeton , who was there to attend
the prayer rally being sponsored by the Union, replied to
Morgan that no one had said anything to her, and that
she should continue on inside the building . Apparently,
Morgan did go into the plant , and nothing more tran-
spired . There is no evidence that the threat was dissemi-
nated in the plant . Morgan herself states that she told
only her supervisor and "a couple of girls on the ship-
ping floor." The election started within an hour after
Bostic's threat, and it appears that the voting place was
some distance from Morgan 's work place.
IV. OBJECTIONS RELATED TO REPRESENTATION
CASE HEARING
Objection 2
Petitioner , by and through its officers , agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by abuse of
the Board 's processes and subpoenaed an excessive
number of employees to the representation case
hearing held on February 8 and 19.
Objection 3
Petitioner , by and through its officers, agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by misrepre-
senting the representation hearing held on February
8 and 19, 1988, as a union meeting, thus compromis-
ing the neutrality of the National Labor Relations
Board.
Objection 5
The National Labor Relations Board, by and
through its agent Ronald Ramsey , gave the impres-
sion that the National Labor Relations Board fa-
vored the Petitioner by failing to control the con-
duct of the Petitioner and employees at the repre-
sentation case hearing and allow the Petitioner and
its supporters to create a circus atmosphere.
After the petition was filed by the Union seeking to
represent employees herein , a hearing was held on Feb-
ruary 8 and 19, 1988, at which the primary issue was
whether employees of both the Samsons plant and the
Delila plant could appropriately be part of one bargain-
ing unit or whether separate bargaining units were re-
quired.
On the morning of the first day of the hearing, the
Union distributed a leaflet to employees announcing and
describing the hearing . This leaflet first states, "this is
our hearing ," followed immediately by, "a National
Labor Relations Board hearing will be held today." This
leaflet informs employees that the purpose of the hearing
is to decide who will be eligible to vote . In the leaflet,
the Union also states:
S. LICHTENBERG & CO 1311
It is a public hearing . All Samsons and Della
workers are welcome.
The supervisors say that only the Union and the
Lichtenbergs can attend the hearing . Well, WE
ARE THE UNION, so we'll be there!!
The hearing starts at 11 a.m. today and will con-
tinue into the evening . COME TO THE HEAR-
ING AS SOON AS YOU GET OFF WORK.
The leaflet then advises employees where the hearing is
to be held. The very last line of the leaflet then reads,
"Delila workers will meet in Waynesboro at the hearing
this evening-together with the Samsons workers-in-
stead of at our regular meeting in Louisville."
The Employer argues that the Union subpoenaed an
excessive number of employees to this hearing . The Em-
ployer, however, introduced no evidence to show how
many employees were subpoenaed by the Union to
attend the hearing , how many ultimately testified, when
any of the witnesses testified , in what way the number
that was subpoenaed was excessive , or what impact the
subpoenaing of these employees had on the election held
2 months later in April . The Employer simply argues
that subpoenas were issued by the Union to employees
without inquiring about possible testimony the employees
would give and that many of the witnesses subpoenaed
by the Union were never called to testify . One employee
testified before me that she was told at one point she
would not be subpoenaed and then was in fact subpoe-
naed on the day of the hearing.' She was not called to
testify . The Employer also relies on testimony from sev-
eral employees that they were asked by the Union to
come to the hearing in order to show support for the
Union . The only witnesses the Employer did present all
admitted that they had discussed their possible testimony
at the hearing with the Union's attorney beforehand.
Most were told that they might be needed or they might
not be needed.
The Employer also argues that at the representation
case hearing, the hearing officer failed to control the
conduct of the Union resulting in a "circus atmosphere."
Although the Employer argues that "subpoenaed wit-
nesses packed the hearing room ," the Employer actually
offered no evidence of the number of employees subpoe-
naed . There is no evidence to indicate that all or even a
majority of employees present at the representation case
hearing were subpoenaed . Many may have been there
voluntarily either out of curiosity or to show support for
the Union . The record of the representation case hearing
shows that there was some disruption or distraction
caused by people entering and leaving the room. The
hearing officer did in fact take steps to control the hear-
ing, admonishing the Union about controlling its wit-
nesses . The Employer argues that the hearing officer
took no further steps to maintain a proper decorum, but
in fact the record does not indicate that any further steps
were necessary . A reading of the record suggests that
the hearing officer took the necessary steps to control
the hearing and that those steps were effective . Early in
the hearing , the Employer 's attorney attempted to have
witnesses sequestered . The hearing officer denied that re-
quest . At a later point , the Union requested that the
hearing be moved to a bigger room because Board hear-
ings are open to the public and because many interested
employees had arrived . That request was also denied by
the hearing officer . Later, the hearing officer noted, for
the first time, that noise in the courtroom caused by the
presence of many employees was becoming a problem. A
few minutes later, when the noise still had not abated,
the hearing officer directed the Union to clear the room
of all but its subpoenaed witnesses . A break was taken,
and afterward , the hearing officer indicated on the
record that his request had been met . There is no indica-
tion whatever in the record of further disruptions.
V. OTHER OBJECTIONS
Objection 4
Petitioner , by and through its officers, agents, repre-
sentatives and employees destroyed the laboratory
conditions necessary for a fair election by falsely
representing to employees that the Board had found
the Employer guilty of "massive unfair labor prac-
tices" and that the Board had found the Employer
guilty of 36 unfair labor practices . To achieve this
impermissible objective , the Petitioner misrepresent-
ed the meaning and impact of a Board document,
the complaint in Case 10-CA-23179.
On March 25, 1988, the Regional Director for Region
10 of the Board issued a complaint and notice of hearing
in Case 10-CA-23179. Shortly thereafter, the Union dis-
tributed copies of the complaint to employees with a
cover circular bearing a bold-faced heading which reads,
"Gov't. Issues Complaint." The circular reads in its en-
tirety:
Region 10 of the National Labor Relations Board
issued a complaint charging that S . Lichtenberg
violated the law on 30 separate counts during the
union campaign at Samsons and Delila.
In February, charges were filed against the Com-
pany for breaking the law . The Region then con-
ducted an investigation.
Dozens of workers made statements to the
Region that the Company had threatened them if
they supported the Union. They might lose benefits
or their jobs.
After taking affidavits from the workers and
from the Company , the Region then weighed the
evidence.
Finally, based on this evidence , Region 10 of the
Labor Board issued a complaint against the Compa-
ny charging that the Company had committed mas-
sive violations.
S. Lichtenberg has been violating employees'
rights for years . For the first time , the workers have
successfully stood up to protect their rights.
A copy of the complaint is attached.
YOU BE THE JUDGE.
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Objection 6
The National Labor Relations Board, by and
through its agent Milton Jones , interfered with the
election by making public statements in support of
the Petitioner to a newspaper journalist which gave
employees the impression that the National Labor
Relations Board favored the Petitioner in the elec-
tion . Agent Jones' statements were published in the
newspaper of general circulation in the geographi-
cal area where a substantial number of voters reside.
On Sunday , April 10, 1988, a newspaper article ap-
peared in the Augusta Herald Chronicle written by Staff
Reporter Marty Jackson . This article quoted Board at-
torney Milton Jones and Respondent counsel Curtis
Mack concerning the unfair labor practice allegations
contained in the complaint issued against Respondent.
There is no dispute about the fact that this article ap-
peared in those newspapers ' editions which are circulat-
ed and distributed in both Burke and Jefferson counties
where the Samsons and Delila plants are located. Nu-
merous employees testified that they read Jackson's arti-
cle.
This article carries the headline, "Union Accuses
Firms of Efforts to Sway Election ." The first paragraph
of this article reads in its entirety:
The push to unionize Samsons and Delila was
barely underway when ACTWU began accusing
the companies of illegal efforts to sway the upcom-
ing election . It has made nearly three dozen allega-
tions of violations of the National Labor Relations
Act, allegations Curtis Mack said the companies
deny categorically.
The next four paragraphs of the article then identify,
name, and paraphrase or quote statements by Mack,
Union Representative Joan Carter, and Rick Lichten-
berg . The next three paragraphs of the article read as fol-
lows:
Milton Jones , a field attorney for the NLRB said
the allegations lodged by the Union contend the
Company is putting on a facade of generosity in an
effort to undermine union efforts , a move the
NLRB says is illegal.
We don't want to penalize people (companies)
that make an honest effort,' he said. "What is illegal
... is an employer that does not give a flying fig
before about what is wrong . . . and all of a
sudden , when the union comes in , they want to be
Mr. Good Guy.
Jones said there is a trial scheduled May 23
during which the complaints will be heard by a spe-
cial magistrate . Meanwhile , he said , the Union has
asked that the elections still be held.
The article then explains that the election might or might
not be postponed , and continues:
A summary of the allegations against the compa-
nies and Mack's responses include:
UNION: Company officials are interrogating em-
ployees concerning union activities ; asking them for
a list of grievances , and promising pay raises if the
Union is turned down.
It gives an implied promise that they are going to
remedy (the problems), Jones said . "It undermines
the efforts of the Union."
MACK: I am not aware of anything that this
Company or supervisor or agent for the Company
has done to restrain . . . rights under the National
Labor Relations Act. I think the Company has gone
out of its way to ensure employees and everybody
that we intend to respect that right.
I think the Company has been very honest,
candid , that a union is not necessary and not desira-
ble. It (the Company) has put on a very clean and a
very vigorous campaign.
The article then contains four more segments which
begin either "UNION:" or "MACK:" and which summa-
rize unfair labor practice allegations against the Employ-
er and the Employer's response. In those four segments
beginning "UNION:" no one is quoted or referred to by
name . Each of the four segments which begin "MACK:"
both begin and end with quotation marks and obviously
contain quoted responses from Mack.
Delila employee Virginia Williams testified that she
read this article and believed Board attorney Milton
Jones was speaking on behalf of the Union. Williams also
testified that after she read the article , she contacted
Union organizer Monica Russo . Russo told Williams that
the portion of the article described as "UNION" referred
to statements made by Jones. Karen Lorenz , an employ-
ee at the Samsons facility , testified that she read the arti-
cle and discussed it with other employees in her depart-
ment . Lorenz testified that she originally thought the
Board was neutral , but that the article made her believe
the Board favored the Union.
Analysis and Conclusions
The thrust of Employer Objections 1, 11, 15, and 16 is
that the Union appealed to black employees, who com-
prised 95 percent of the employee complement, by in-
jecting race and the need for racial solidarity into the
campaign in order to galvanize support among black em-
ployees. The evidence considered as a whole does not
support this conclusion. House call reports filled out by
union organizers after visiting employees at their homes
reflect that 10 separate employees individually voiced
racial discrimination by the Employer as one of their pri-
mary concerns or issues. Thus, while the overwhelming
concerns of employees were those prevalent in any union
campaign, i.e., wages, hours, seniority, health insurance,
favoritism by supervisors, and nepotism, racial discrimi-
nation was nevertheless perceived as an issue by at least
some employees. It was not an issue injected into the
campaign solely by the Union, but rather was raised by
employees themselves.
It is the Employer's burden to show that the Union
deliberately sought to overstress and exacerbate racial
feelings by irrelevant, inflamatory appeals which were
the core of the Union's campaign. Sewell Mfg. Co., 138
NLRB 66 (1962); Baltimore Luggage Co., 162 NLRB
S. LICHTENBERG & CO. 1313
1230 (1967). Respondent 's argument that a cry for racial
solidarity was first voiced , or at least heightened , by let-
ters to employees from prominent black Americans is
simply not borne out by the evidence. The letter from
Coretta Scott King to employees can only be described
as racially neutral . The main appeal of the letter specifi-
cally notes, "The [Union] has labored long and hard to
held working people of all races achieve better wages
and working conditions and dignity on the job." The
letter of Rev. Jesse Jackson carries much the same tone,
encouraging employees "to build a better future through
unionization ." It is economic power , not race , that Jack-
son focuses on in his statement that "working people can
achieve real power by organizing strong unions ." While
there is no dispute that in his speech to employees, Rev.
Joseph Lowery recalled the early days of civil rights
marches and his personal involvement alongside Rev.
Martin Luther King, Jr., this is not to say that Lowery's
appeal was primarily, or even partly, racial or racist.
There is no racial overtone to Lowery 's exhortation to
be a "giant." Nor does Lowery's letter to employees fol-
lowing his speech instill or engender racism . Rather, it
specifically encourages employees to support the Union
"for economic justice, dignity, and respect on the job."
Campaign literature distributed by the Union to em-
ployees at Samsons and Delila reflects that racial dis-
crimination received relatively little mention. When the
issue was raised, it was raised by employees , not the
Union . In those limited instances when perceived racial
discrimination was raised by employees, it was raised and
discussed specifically as an issue related to their working
conditions , not as an appeal to racial solidarity or racism
on the part of black employees . Mistreatment on the job,
including racial discrimination , is obviously a legitimate
issue of concern both to employees and to a union at-
tempting to organize them . Be that as it may, the Union's
appeal to employees in its campaign literature relate
overwhelming to economic betterment , improved work-
ing conditions , and the need to stand together , i.e., orga-
nize in order to be successful . The insignificant number
of times that race is even mentioned in union literature
leads me to the conclusion that neither race, nor racial
solidarity, nor racism , nor even racial discrimination,
served as a major campaign issue by the Union . Further,
careful scrutiny of union campaign literature reflects that
the need for employees to "stick together" was always
expressed in terms of the need for employees to be orga-
nized and dedicated . It was never expressed in campaign
literature as an appeal for racial solidarity.
The record does indeed reflect that some employees,
including some "in-plant organizers," took the Union's
general call for solidarity and interpreted it in individual
discussions with other employees as a call for racial soli-
darity . Numerous employees at both plants testified that
they frequently heard the phrase that "blacks have to
stick together" throughout the union campaign. Employ-
ee George Cooper was overheard making such a remark,
and employee Portia Bostic admits telling fellow black
employees not only that "blacks need to stick together,"
but that "if [white employees] wanted to join our union,
they're going to have to be sure that they want it."
Bostic even admits telling one white employee that if the
Union won the election , white employees would all be
fired . Black employee Joe Miller admitted that when a
white employee confronted him about Bostic's statement
and asked if it was true, instead of attempting to dispel
the rumor, Miller merely laughed and walked away.
Thus, there is some evidence of overtly racist remarks
made during the union campaign by employees who sup-
ported the Union. There is no evidence whatever, how-
ever, that the Union initiated , exacerbated , or condoned
any of these remarks . The only evidence of an overtly
racist remark made by any union organizer is the state-
ment by Monica Russo, who is white, to black employ-
ees, "we shouldn 't let these white people tell us what to
do." Given the fact that the employee complement is
overwhelmingly black , while the supervisory comple-
ment is overwhelmingly white, even Russo's statement is
not necessarily what it appears to be on its face, and
must be considered somewhat ambiguous.
The Employer argues that various employees acted as
agents of the Union during the organizing campaign.
Employee George Cooper was overheard saying that
black employees needed to stick together. Employee
Portia Bostic stated at various times that black employ-
ees needed to stick together ; that white employees
needed to be sure they wanted the Union before support-
ing it; and even that white employees would be fired if
the Union won the election. White employee Ben John-
son reported to his fellow employees in individual con-
versations and at a union meeting that he heard Supervi-
sor Rosie Dye say that she did not want the Union to
represent employees because it would mean "a bunch of
niggers would be running the plant ." Employee George
Cooper also became involved in a brief altercation with
employee Andy Horton, which the Employer alleges is
evidence of the Union engaging in physical violence
against employees who did not support the Union. On
election day , employee Portia Bostic threatened employ-
ee Loma Morgan , a known union opponent, that she had
better get back inside the plant before she got "a foot."
Union literature is totally free of racist appeals . There is
no evidence whatever that any organizer or other repre-
sentative of the Union endorsed or even knew about
Bostic's racist threat that white employees would be
fired if the Union won the election , Bostic's other racist
remarks, or Bostic's threat to kick Loma Morgan. Nor is
there any evidence that the Union inspired , encouraged,
or condoned the altercation between employees Cooper
and Horton . Therefore, a critical element in many of the
Employer's objections is whether these employees were
themselves agents of the Union during the organizing
campaign. If so, and if the employees were acting as
agents of the Union when they engaged in the objection-
able conduct , there may in fact be merit to certain Em-
ployer objections such that a second election is warrant-
ed. Recognizing that resolution of the agency issue may
indeed be the determining factor in whether the Employ-
er's objections have merit, both parties devoted consider-
able portions of their post -trial briefs to this . In summa-
ry, the evidence reveals that once the Union began a se-
rious organizing drive at Samsons and Delila, profession-
al union organizers were assigned to work full time at
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
both plants . These organizers rented motel rooms near
the plants to which they were assigned, and used these
rooms as bases of operation from which the organizing
campaign was conducted . After the campaign picked up
momentum , a core of active employee union supporters
began to be referred to as "in-plant organizers ." These
"in-plant organizers" helped solicit authorization cards
from other employees , accompanied union organizers in
making house calls on employees, helped publish a union
newsletter, and otherwise actively attempted to encour-
age their fellow employees to support the Union.
Early in the union campaign , union organizers handed
out leaflets to employees entering work at the two
plants . After the Union enlisted a group of regular em-
ployee supporters , these employees assisted union orga-
nizers in handing out leaflets at the Employer 's premises.
It does not appear , however, that there ever came a time
when employees alone took on the role of distributing
such literature.
The Union also held. weekly meetings for and with
employees. Meetings were held on Tuesday nights for
Delila employees and on Wednesday nights for Samsons
employees . These meetings were conducted and con-
trolled primarily by union organizers . Particularly active
in-plant organizers sometimes sat at the head table during
these meetings . Sometimes they were also called on to
give reports to the entire group concerning organizing
progress and events of note in the department where
they worked . Employees who considered themselves "in-
plant organizers" were given notebooks by the Union in
order to record events that might take place in their de-
partment , so that they could report on those matters at
the weekly meetings.
The parties are in dispute over whether "in -plant orga-
nizers" constituted a formal committee , a significant
factor in determning agency status . In the case at hand,
"in-plant organizers " constituted a formal committee in
the sense that they recognized themselves , and the Union
recognized them as well , as an identifiable group. On
"house call reports," union organizers sometimes noted
that a particular employee was especially supportive of
the Union and/or especially articulate such that it was
considered a good idea to consider "inviting" the person
to join the "in-plant committee ." Further, in-plant orga-
nizers campaigned somewhat independently in that they
wrote and distributed leaflets and prounion literature
which they themselves authored and signed. The Union
was fully aware of this, and in fact typed and had print-
ed the campaign literature . The Union also provided at
least minimal training to "in -plant organizers" concern-
ing organizing techniques and responsibilities. In one
handout which the Union gave to this core group of em-
ployees, it referred to them as a "buzz group" and indi-
vidually as "in-plant communicators ." In that same litera-
ture, the Union cautioned these "in-plant organizers" as
follows: "To the workers in YOUR group or shop area,
you may be the ONLY union leader around . To those
people YOU are the union ! YOU must think , speak, act
accordingly . AT ALL TIMES!" In certain respects,
therefore , the "in -plant organizers" did represent a
formal committee. I do not credit any of the union orga-
nizers who testified that the term "in-plant organizers"
was coined by the employees themselves . Union organiz-
er Monica Russo's assertions to that effect were particu-
larly belied by her argumentative and biassed demeanor.
There is no doubt whatever in my mind that the term
"in-plant organizer" was a term coined by the Union and
not by the employees on their own . Be that as it may,
the Union is at least partly right that the committee of
"in-plant organizers" was in some respects informal. Em-
ployees did not have to be elected or even appointed to
act as an "in-plant organizer ." Technically speaking, any
employee was free to assume that title . The evidence in-
dicates that the title was assumed by many employees in
the core group of active union supporters either to estab-
lish a special camraderie with one another or to make a
public statement about how actively they supported the
Union . No one who took it upon themselves to assume
that title was ever prevented or even discouraged from
doing so. The title simply served as a badge by which
employees identified themselves as members of an active
core group of union supporters and through which they
put other employees and the Employer on notice of their
dedication to and support for the Union.
The Employer points out , and there is really no dis-
pute about the fact, the "in-plant organizers" served as a
conduit between the union organizers and other bargain-
ing unit employees . Nor is there any dispute about the
fact the "in-plant organizers" were allowed and in fact
encouraged to enlist other employees to support the
Union . In-plant organizers invited and encouraged other
employees to visit the professional union organizers at
their motel rooms . In-plant organizers also independently
solicited and obtained signatures on union authorization
cards.
In spite of all the activities which "in-plant organizers"
engaged in on behalf of the Union , not only with its full
knowledge and consent , but also with its encouragement,
I find that these "in -plant organizers" were not agents of
the Union such that their actions are generally attributa-
ble to, and binding on, the Union. The Board specifically
recognizes that "membership on an in-plant employee or-
ganizing committee is insufficient by itself to make an
employee an agent of a union ." Firestone Steel Products
Co., 235 NLRB 548, 550 (1978). Although employee
card solicitors may be found to be special agents of the
union while engaging in that conduct, the Board will not
lightly find an employee "in-plant organizer" to be a
general agent of the union . See Davlan Engineering
(Davlan II), 283 NLRB 803 (1987) Cf. Pierce Corp., 288
NLRB 97 (1988), and cases cited therein . In the instant
case, as in the Pierce case, no employee was expressly
designated to serve as the union 's agent, and employees
were not left on their own to conduct the campaign.
Here , as in Pierce, the campaign was punctuated by the
frequent and regular presence of the Union. Union orga-
nizers were stationed full-time at Louisville and Waynes-
boro, Georgia, throughout the union campaign. They
became at least temporary residents at nearby motels,
where they remained throughout the campaign. These
professional union organizers conducted house calls on
employees and actively participated in distributing union
literature and campaign leaflets at the Samsons and
S. LICHTENBERG & CO. 1315
Delila plants . Their presence was not only well known
but publicized . Employee "in-plant organizers" invited
and encouraged other employees to visit these profes-
sional union organizers at the nearby motels where they
were staying . Moreover, these professional union orga-
nizers conducted regular weekly meetings for and with
employees at each plant . The presence of three full-time
professional organizers employed by the Union through-
out the entire period of the union campaign significantly
detracts from any finding that "in-plant organizers" were
held out to be or perceived as being true representatives
or agents of the Union . I find that they were not. The
Employer argues that a finding of agency is mandated by
the court 's decision in NLRB v. Georgetown Dress Corp.,
537 F .2d 1239 (4th Cir . 1976), and later followed in
P.P.G. Industries, Inc. v. NLRB, 671 F.2d 817 (4th Cir.
1982). The Board , however, has at least twice distin-
guished Georgetown Dress on grounds equally applicable
to the instant case . In both Pierce Corp., supra, and Cam-
bridge Wire Cloth Co., 256 NLRB 1135 ( 1981), the Board
held that, unlike the situation in Georgetown, the presence
of full -time, on-the-scene organizers who were known to
employees and available to meet with them daily made
the in-plant organizing committee members less likely to
be seen as agents of the union . I conclude based on the
facts here that "in-plant organizers " were not held out
by the Union to be , nor perceived by employees general-
ly as being , agents of the union.
The Employer accuses the Union of making up and
spreading rumors about alleged racist remarks by super-
visors in order to further galvanize support from black
employees . The record reflects, however, that in fact all
but one of the alleged statements made by supervisors
were more than just rumor . Further, there is no evidence
whatever that any of the alleged statements by supervi-
sors were made up by the Union . Supervisor Josie Bruni
admits saying to at least one employee , and perhaps
more, that the Lichtenbergs provide a good workplace
and had gotten many people "out of the cotton fields."
The people to whom she made these remarks are black,
and whether or not Bruni intended the comment as a
racist statement , it was understood as such by the em-
ployees . Nor was the alleged remark attributed to Super-
visor Rosie Dye that she did not want the Union to rep-
resent employees because "a bunch of niggers would be
running the plant" mere rumor . Rather, this statement
was reported by employee Ben Johnson who says he ac-
tually overheard the remark . The same may be said of
the alleged statement by employee Loma Morgan, over-
heard by employee Willie Mae Bradford , that the majori-
ty of black people cannot read or write . Whether
Morgan actually made the remark, or whether Bradford
misunderstood something else Morgan said , is simply not
relevant . It is clear and undisputed that in fact Morgan
made some statement which Bradford in good faith
thought was a racist remark . Bradford told some of her
fellow employees about the remark as she perceived it,
.but there is no indication whatever that the Union dis-
seminated or published the remark . In fact, Bradford tes-
tified without contradiction that she never even told
anyone from the Union about the statement before the
election . There is simply no evidence to suggest that the
Union was in any way connected to this incident or tried
to take advantage of it in the campaign.
Nor is there any evidence to suggest that the Union in-
spired , encouraged , perpetuated , or disseminated the al-
leged remark made by Supervisor Pettit that the Em-
ployer had hired security guards "to keep all the niggers
out." This is the one alleged remark which can appropri-
ately be called a rumor, for no one claims to have heard
Pettit make this statement or any statement like it. It
goes without saying that rumored remarks of this type
can seriously impair a person 's reputation . Be that as it
may, as it relates to this case, the rumor simply has no
significance . Neither the rumor itself nor the participants
in it in any way involved the union campaign or the
Board-conducted election . There is no evidence that the
rumor was repeated or disseminated by the Union. The
remark does not appear in any of the Union's literature.
There is simply no evidence to suggest that the Union
was in any way connected to this rumor or tried to take
advantage of it in the campaign.'
The Employer alleges in objection 15 that by holding
weekly meetings for workers of the Samsons plant at the
Mystique Lounge in Waynesboro , the Union effectively
excluded Caucasian employees from those meetings be-
cause the Mystique Lounge is a night club known to be
frequented only by blacks . All of the witnesses called by
the Employer to testify concerning this objection admit
that they never made any attempt to go to any of the
union meetings at the Mystique Lounge . They were not
in fact excluded . Nor did any of these witnesses ever
notify the Union of their discomfort in attending a meet-
ing at the Mystique Lounge or suggest to the Union that
meetings be held in another location . While no one seri-
ously disputes the fact that the Mystique Lounge is a
night club frequented primarily by blacks, two witnesses
testified that when they have been there on social occa-
sions, they have also seen whites at the club. I am thor-
oughly convinced that the racial makeup of the clientele
at the Mystique Lounge could not possibly have been
disproportionate in relation to the racial makeup of the
employee complement , which is itself 95 percent black.
Even if the Union set out intentionally to hold its meet-
ings where the majority of the employees would be most
comfortable , I would find nothing objectionable in it
doing so . Such is not the case, however. The evidence is
uncontroverted that the Union attempted to obtain other
places at which to hold meetings , but was unsuccessful.
The Union finally settled on the Mystique Lounge as the
place to hold its meetings because it was available , suita-
ble in size, and in close proximity to Waynesboro. Fur-
ther, I note that the Mystique Lounge is open as a night
club only on weekends, and therefore was not open for
business on the nights when the Union used it for meet-
4 Without relying on this point , I note that these reports and/or rumors
of racist remarks by supervisors became generally known early enough
so that even the supervisors themselves were aware of them In several
cases, the supervisors involved had the opportunity to confront the indi-
vidual employee . To the extent it is significant. I must therefore note that
the Employer had an opportunity to distribute whatever campaign litera-
ture it might have wanted to in order to dispel what it perceived as
rumors or to clarify its own position on equal employment opportunity
The Employer chose not to do so
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ings. Even if white employees might have been uncom-
fortable in going to the Mystique Lounge as a night club
on weekends , there is no logical reason for them to have
been uncomfortable in going there for a totally different
purpose during the week . Simply stated , there is no evi-
dence whatever to support the Employer's objection that
the Union excluded Caucasian employees from union
meetings.
The Employer also alleges in objection 16 that Cauca-
sian employees were refused union campaign literature
being distributed by union organizers and black employ-
ees at the Samsons and Delila plants . The same five
white employees from Samsons who testified that they
felt excluded from union meetings , also testified that they
were intentionally denied union leaflets and campaign
materials at the Samsons plant gate . The Employer's evi-
dence concerning this objection actually relates more to
subjective mental impressions formed by certain white
employees who, it also happens , did not support the
Union. The evidence reflects fairly clearly, however,
that either from the very beginning or once they felt re-
buffed , these employees did not stop their cars, roll
down their car windows, or otherwise indicate any
desire to receive the leaflets being distributed. One of the
five employees testified that although literature was not
distributed to her on several occasions as she approached
the plant in her car, she several times walked out of the
plant and obtained leaflets from union supporters. She
was never denied the material on those occasions. I find
no evidence to support the Employer 's contention that
the Union refused to permit Caucasian employees to re-
ceive or review union literature.
Objections 12, 13, and 18 allege in essence that the
Union intimidated nonsupporters by threats and physical
violence . I note first that the incident to which the Em-
ployer points all involve employees who I have found
were not agents of the Union , and none involved the
Union's professional organizers . These incidents are
therefore not attributable to the Union in any event. Be
that as it may, I note to that in fact the record reflects
evidence of only one threat, which can be characterized
as isolated.
It is uncontroverted that in early February 1988, em-
ployee Michael Reeves and employee Betty Turner had
an argument concerning the Union during which Reeves
called Turner a fool. After the argument, Reeves was
with other employees when he made the remark that he
"should have kicked her ass." Reeves did not make this
remark to Turner . Nor did he say to the employees to
whom he was speaking that he intended or planned any
future actions toward Turner . From the very context of
Reeves' statement , it is clear that he had not done any-
thing to Turner . I do not find Reeves' statement a threat,
but rather empty bravado . The record is even more clear
that when Reeves told employee Lisa Miller that if she
did not wear a prounion sticker, Reeves would "kick her
tail," this was both intended and received as nonthrea-
tening. Miller testified that even as Reeves made the
statement , she knew he was joking . Even when Miller
mentioned the incident to her supervisor for reasons
which are not at all clear, the evidence shows that Miller
specifically told her Supervisor Reeves was kidding. I
find no threat of physical harm.
Regarding the brief altercation between employees
George Cooper and Andy Horton which lead to their
discharge , I find nothing in any way attributable to the
Union . The evidence is clear that it was Horton who
called Cooper a "motherfucker," which provoked
Cooper to take a swing at Horton . Not only was it
Horton, and not Cooper , who was largely responsible for
provoking the incident , but there is no evidence to show
that this altercation had anything whatever to do with
the Union or the union campaign . Accordingly, I find
the record all together void of all evidence to support
the Employer 's objection that Cooper attacked an em-
ployee for exercising his right to refrain from supporting
the Union.
The one incident in which I find that a threat was in
fact made against an employee because she did not sup-
port the Union was the remark made by employee Portia
Bostic to employee Loma Morgan on election day that
Morgan better "get back inside [the plant] before you get
a foot." This incident was brought on by the emotionally
charged atmosphere at the plant on election day, and
when placed in its proper context , it is actually fairly
minor. The Union was conducting a rally and prayer
service outside the plant shortly before the polls were to
open. A large crowd of union supporters was on hand. A
television crew was also outside the plant interviewing
employees . Morgan, a known union opponent , had just
finished expressing her opposition to the Union to this
news crew . It was as Morgan passed by the union sup-
porters on her way back to the plant that Bostic told
Morgan she had better get back inside before "you get a
foot." While Morgan could have chosen to ignore the
remark , she did not, turning instead to see who made the
statement or to meet the challenge . Rev. James Keeton,
who was there to attend the prayer rally, immediately
diffused the situation , and nothing more transpired.
There is no evidence that the threat was disseminated in
the plant . When viewed in its proper context , and all the
evidence surrounding this incident is considered, I find
the incident can only be characterized as isolated. There
is no evidence that the threat was disseminated to any
significant number of employees , and noting as well that
the election started within a short time at a polling place
some distance even from where Morgan worked, I find
no evidence upon which to base a conclusion that this
incident could have in any way affected the election.
Objections 2, 3, and 5 relate to the representation case
hearing held on February 8 and 19, 1988. The Employer
contends that the Union misrepresented the hearing as a
union meeting and subpoenaed an excessive number of
employees to the hearing . The Employer also alleges
that the hearing officer failed to control the conduct of
the hearing which therefore took on a "circus atmos-
phere ." I find no merit to any of these objections. More
specifically, I find that the leaflet distributed by the
Union to employees on the morning of the first day of
the hearing does not in any way misrepresent the hearing
as a union meeting . The leaflet specifically states that the
hearing is "a National Labor Relations Board hearing
S. LICHTENBERG & CO. 1317
...." Moreover , the leaflet informs employees that the
purpose of the hearing is for the Board to decide who
will be eligible to vote . The last line of the leaflet reads,
"Delila workers will meet in Waynesboro at the hearing
this evening-together with the Samsons workers-in-
stead of at our regular meeting in Louisville ." This line
does not suggest that the hearing is itself a union meet-
ing, but states simply that employees "will meet," i.e.,
attend , the hearing "instead of," i.e ., rather than the reg-
ular meeting . It would require a very strained interpreta-
tion indeed for anyone to conclude that employees were
mislead into believing that the Board hearing was a
union meeting.
Nor is there sufficient evidence to support the Em-
ployer's contention that the Union subpoenaed an exces-
sive number of employees . The Employer simply argues
that subpoenas were issued by the Union to employees
without inquiring about possible testimony they might
give . One employee was told she would not be subpoe-
naed , but then was subpoenaed . The Employer presents
no evidence to show how many employees were actually
subpoenaed, nor how many of those subpoenaed were
not called as witnesses.
The record simply does not support the Employer's
contention that the hearing officer failed to control the
conduct of the representation hearing or that a "circus
atmosphere" was created . Stated in its simplest form, the
record simply reflects that at one point during the hear-
ing, noise became a problem in the courtroom . When the
problem continued , the hearing officer directed the
Union to clear the room of all but its subpoenaed wit-
nesses . A break was taken , and the directive was met.
Rather than show that the hearing officer failed to con-
trol the conduct of the hearing, the record reflects exact-
ly the opposite . The hearing officer took appropriate
steps to control the hearing , and it is apparent that these
steps were successful.
The Employer alleges in Objection 4 that in a leaflet
to employees , the Union misrepresented the meaning of
the complaint in Case 10-CA-23179 by announcing that
the Board had found the Employer guilty of "massive
unfair labor practices ." Nowhere does the circular state
that the Employer has been "found guilty" of anything.
Rather, the circular correctly states that the Board
"issued a complaint charging that S. Lichtenberg violat-
ed the law . . . . " Later in the circular , the Union again
stated correctly that the Board "issued a complaint
against the Company charging . . . violations." The cir-
cular does not suggest that the Board has yet found the
Employer guilty of any unfair labor practice . In fact, the
circular ends by inviting the reader , "You be the judge."
I note too , that even if the Union had misrepresented the
complaint , misrepresentations made during an election
are not per se objectionable , even when those misrepre-
sentations apply to Board actions . Riveredge Hospital, 264
NLRB 1094 ( 1982), Midland National Life Insurance Co.,
263 NLRB 127 (1982). Since misrepresentations of its ac-
tions are subject to corrections by the opposing party,
just like other misrepresentations , the Board can remain
neutral . In the instant case, the Employer had at least 2
weeks to respond to the Union 's leaflet prior to the elec-
tion . I find the Employer 's objection to be totally with-
out merit.
Last but not least , the Employer alleges in Objection 6
that Board attorney Milton Jones interfered with the
election by making a public statement printed in the Au-
gusta Herald Chronicle which makes it appear that the
Board supported the Union in the upcoming election. I
find the most troublesome aspect of this article to be
Jones' statement , "What is illegal . .. is an employer
that does not give a flying fig before about what is
wrong . . . and all of a sudden , when the union comes
in, they want to be Mr . Good Guy ." While the reader
knowledgeable of labor law can discern the legal princi-
ple to which Jones refers , his description is so colloquial
as to be easily misunderstood . More importantly, the ref-
erences to "flying fig" and "Mr . Good Guy" implies that
the Board views this employer in that light . If that state-
ment by Jones was not placed in its proper context, it
might well be the basis for setting aside the election
herein . However, the article must be read in its entirety,
with particular emphasis on the paragraphs which imme-
diately precede and immediately follow Jones' quoted
statement.
The paragraph immediately preceding Jones' statement
reads in relevant part: "Jones . . . said the allegations
lodged by the Union contend the Company is putting on
a facade of generosity ." The paragraph which immedi-
ately follows Jones' quoted statement reads in relevant
part: "[T]here is a trial scheduled May 23 during which
the complaints will be heard ." When read in total con-
text, it becomes clear that Jones is not necessarily de-
scribing the Employer, but rather simply attempting a
very inarticulate description of Board law. The article
then contains a summary of the allegations included in
the complaint issued against the Employer and the Em-
ployer's response . In support of its objection , the Em-
ployer points to the fact employees testified that since
the description was titled "UNION" but contained a de-
scription made by Jones, they were lead to believe that
the Board sided with or favored the Union . The confu-
sion experienced by these employees is not so much the
result of any statement made by Jones as it is confusion
naturally experienced by many laymen as a result of the
difference in Board processes and, in particular, the dif-
ference in the role of the Board 's Regional Offices in
representation cases versus unfair labor practice cases.
While the article names and identifies and then para-
phrases or quotes statements by Employer attorney
Curtis Mack , Employer representative Rick Lichtenberg,
and union organizer Joan Carter , there is no question
that the article also quotes or paraphrases Board attorney
Jones when it describes the Union 's position regarding
alleged unfair labor practices . All Jones is doing in fact,
however, is summarizing the allegations of the complaint
which a regional director , acting on behalf of the Gener-
al Counsel , has issued against the Employer . In issuing
the complaint , an agent of the Board , i.e., a Regional Di-
rector acting on behalf of the General Counsel has
adopted the allegations made by the charging party
union. Further, in his role as Counsel for General Coun-
sel, the Regional Director , and any attorney assigned by
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him to try the matter, is acting in concert with the
charging party union in that aspect of the case . Rather
than Jones' statements serving as the basis for overturn-
ing the election , the Augusta Herald Chronicle article
simply highlights the potential confusion to the layman
whenever a complaint is issued against either party short-
ly before an election . That, however, is simply the way
Board processes operate pursuant to the Act, and cannot
serve as the basis of an objection to overturn the elec-
tion. When one fully understands how Board processes
operate, and thus understands the altogether different
roles which a Regional Director plays in representation
cases versus unfair labor practice cases, one realizes that
Jones' statements simply reflect accurately the fact that
in issuing the complaint , the Regional Director has taken
on one party's side in his statutory role of correcting
unfair labor practices. I therefore find that Jones ' state-
ments contained in this news article are not a sufficient
basis for overturning the election.
Determination and Recommendation
In light of all the dispositions set forth above, I find all
of the Employer's objections to lack merit . I recommend,
therefore, that the objections be overruled in their entire-
ty and that the results of the election be certified.5
5 Within 14 days from the date of issuance of this Decision and Report
of Objections, either party may file exceptions (an original and eight
copies ) with the Board in Washington , D C Immediately upon the filing
of such exceptions , the party filing the same shall serve a copy thereof on
the other party and shall file a copy with the Regional Director If no
exceptions are filed , the Board will adopt the recommendations of the
Hearing Officer /