Tenneco, Inc.

National Labor Relations Board - Board Decisions

May 11, 1988

288 N.L.R.B. 888 (N.L.R.B. 1988)

888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Walker Manufacturing Company, a Division of Ten-
neco, Inc. and URW Local 833, United Rubber,
Cork, Linoleum & Plastic Workers of America,
AFL-CIO. Case 26-CA-11745
May 11, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 17, 1987, Administrative Law
Judge Richard A. Scully issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed cross-
exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
The judge's conclusion that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by with-
drawing recognition from the Union is predicated
on his finding that the Respondent's alleged basis
for good-faith doubt did not arise in a context free
of unfair labor practices. In particular, he found
that the decertification petitions signed by a majori-
ty of the unit employees were tainted by unfair
labor practices committed by the Respondent's su-
pervisors. We agree and, in adopting, we reject the
Respondent's contention that the violations com-
mitted by the supervisors were too isolated and in-
significant to taint the petitions.
It is apparent from the nature of the unfair labor
practices found in this case that the Respondent
sought to undermine the relationship between its
employees and their union by engaging in conduct
likely to cause employee disaffection from a bar-
gaining representative. In this regard, we note par-
ticularly the unlawful promises of increased bene-
1 The Respondent 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.
2 The General Counsel's exceptions state that the Judge erred in failing
to include in his recommended Order a vintatortal clause authorizing the
Board, for compliance purposes, to obtam discovery from the Respond-
ent under the Federal Rules of Civil Procedure under the supervision of
the United States court of appeals enforcing the Order In fact, the Judge
included such a provision in par. 2(c) of his recommended Order. How-
ever, we conclude that under the circumstances of this case such a clause
is not warranted. See Cherokee Marine Terminal, 287 NLRB 1080 (1988)
We shall modify the recommended Order accordingly.
fits should the employees revoke the Union's repre-
sentative status, the threats of plant closure, and
the coercive interrogation about employees' union
sympathies. 3 We note that the unlawful activities
engaged in by the Respondent's front-line supervi-
sors coincided with the rapid circulation of decerti-
fication petitions throughout the facility in issue.
The timing of the above unfair labor practices—
coupled with actual supervisory solicitation-of de-
certification signatures, assistance with the circula-
tion of the antiunion petitions, and monitoring of
employee decertification activities—persuades us
that employees were improperly coerced into sign-
ing the decertification petitions. The record in fact
confirms that some individuals who were the
object of unlawful supervisory conduct were in-
duced to affix their signature to the circulating pe-
titions.
We recognize that we cannot establish the pre-
cise impetus the unlawful supervisory conduct may
have given to the overall decertification drive.
However, any uncertainty in this regard should be
resolved against the Respondent, which engaged in
the misconduct and which has the affirmative obli-
gation to establish a good-faith doubt of the
Union's majority status. We are persuaded that the
improperly induced decertification signatures en-
abled the Respondent to elicit employee support
for the revocation of the Union's representative
status that could have influenced subsequently ap-
proached employees to join their coworkers in a
drive to sever their relationship with their union.
Thus, we reject the Respondent's argument that
the unfair labor practices engaged in by its supervi-
sors were isolated, noncoercive incidents. 4 As the
Board stated in Hearst Corp., 281 , NLRB 764
(1986):
An employer that has engaged , in unlawful
conduct, of the type engaged in by the Re-
spondent, cannot expect to take advantage of
the chance occurrence that some of its em-
ployees may be unaware of its actions. . . .
[Ain employer who engages in efforts to have
its employees repudiate their union must be
3 Although the contents of an unprecedented plantwide speech deliv-
ered on June 3, 1986, by the Respondent's vice president of operations,
Sam Licavoli, are not alleged as unlawful, it seems quite clear that com-
ments made during the speech set the stage for widespread discussions
among employees and supervisors immediately thereafter regarding supe-
rior benefits available at the Respondent's nonunion plants in Harrison-
burg, Virginia, and Seward, Nebraska.
4 We find it unnecessary to pass on the alleged agency status of em-
ployee Vasser insofar as the solicitation activities engaged in by Supervi-
sor Carr with respect to employee petitions circulated by Vasser have al-
ready been found unlawful. Thusat best, any findmg of alleged unlawful
conduct engaged in by Vasser would be cumulative.
288 NLRB No. 99
v":1 ,". !„;
Wt?i. LKER MFG. CO. 889
held responsible for the forseeable conse-
quence of its conduct.
As noted above, a foreseeable consequence here
was that coerced signatures might induce other em-
ployees to sign the tainted petitions and, according-
ly, the petitions cannot serve as a basis to establish
a good-faith doubt of the Union's majority status.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Walker Manufacturing Company, a Divi-
sion of Tenneco, Inc., Aberdeen, Mississippi, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Substitute the following for paragraph 2(c).
"(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
Margaret Brakebush, Esq., for the General Counsel.
Michael J'. Rybicki, Esq., of Chicago, Illinois, for the Re-
spondent.
George Barrett, Esq., of Nashville, Tennessee, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RicHAtua A. SCULLY, Administrative Law Judge.
Upon a charge and an amended charge filed 8 August
and 10 September 1986, respectively, URW Local 833,
United Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO (the Union), the Regional Director
for Region 26 of the National Labor Relations Board
(the Board), issued a complaint alleging that Walker
Manufacturing Company (the Respondent) had commit-
ted violations of Section 8(a)(I) and (5) of the National
Labor Relations Act (the Act). The Respondent filed a
timely answer denying that it had committed any viola-
tion of the Act.
A hearing was held at Aberdeen, Mississippi, on 16
and 17 December 1986 at which all parties were given a
full opportunity to participate, to examine and cross-ex-
amine witnesses, and to present other evidence and argu-
ment. Briefs submitted on behalf of the General Counsel
and the Respondent have been given due consideration.
On the entire record and from my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corpora-
tion with an office and place of business in Aberdeen,
Mississippi, engaged in the manufacture and sale of auto-
mobile parts. During the 12-month period preceding Sep-
tember 1986, the Respondent, in the course and conduct
of its business, sold and shipped products, goods, and
materials valued in excess of $50,000 from its Aberdeen
facility directly to points outside the State of Mississippi
and purchased and received products, goods, and materi-
als valued in excess of $50,000 at its Aberdeen facility di-
rectly from points outside the State of Mississippi The
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has been the collective-bargaining repre-
sentative of the employees at the Respondent's Aberdeen
plant since 1967, in a unit consisting of:
All production and maintenance employees, includ-
ing truck drivers, employed by the Company in
Monroe County, Mississippi, only, excluding office
and clerical employees, technical employees, tempo-
rary employees, part-time employees, professional
employees, nurses, receiving clerks, watchmen,
guards, and supervisors and assistant supervisors
with authority to hire, promote discharge, discipline
or otherwise effectively recommend such action.
The Union and the Respondent have been parties to a
series of collective-bargaining agreements, the most
recent of which extended from 22 August 1983 through
14 September 1986.
The Aberdeen plant is one of eight production facili-
ties operated by the Company. It primarily services the
"after market" with replacement auto parts, but does also
produce a limited amount of original equipment. The
Company operates similar "after market" production fa-
cilities in Harrisonburg, Virginia, and Seward, Nebraska.
Both of those plants are nonunion.
On 3 June 19861 Respondent's vice president of oper-
ations, Sam Licavoli, who was at the Aberdeen plant for
an operations meeting, addressed all employees during
working hours at the local high school because there
was no place large enough to assemble the 250 employ-
ees at the plant. During his speech Licavoli said that em-
ployees at the Company's Harrisonburg and Seward
plants were receiving higher wages, more holidays, and
dental benefits that were not available to the Aberdeen
employees. He referred to the fact that the Aberdeen
plant had lost work to the Harrisonburg and Seward
plants and said that there was a chance of getting some
of the work back. To do so, he said, they did not have to
work harder, "just smarter." Licavoli also said that the
Company was attempting to get work from the new
General Motors Saturn plant, and that to do so the Corn-
1 Hereafter all dates are in 1986.
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany had to be able to guarantee 5 years of uninterrupt-
ed production. The General Counsel does not allege that
any of Licavoli's remarks were unlawful.
Following the speech there was a great deal of discus-
sion at the plant concerning the better benefits At the
Harrisonburg and Seward plants and petitions to revoke
the Union's status as bargaining representative were cir-
culated among the employees. By 16 June Plant Manager
William Maclean had received petitions signed by a ma-
jority of the Aberdeen employees and he communicated
that fact to the Union by letter on that date. By letter of
15 July, the Union gave the Company notice that it
wanted to negotiate a new contract to replace the one
that would terminate on 14 September. The Respondent
replied by letter of 16 July that it would not negotiate
with the Union because a majority of its employees had
indicated that they no longer wished to be represented
by the Union.
B. Alleged Violations of Section 8(a)(1)
1. Actions of Supervisor Butch Bryan
In mid-June after Licavoli's speech, employee John
Jackson was approached in his work area by employee
Clayton Smith who told Jackson that the Union was no
good and they ought to try it without one for a year. He
asked Jackson if he wanted to put his name on a piece of
paper to get rid of the Union. Jackson declined saying he
wanted to talk to some of the older workers who had
been there before there was union representation and get
their opinions. A day or so later Jackson's supervisor,
Butch Bryan, came to him at his work station and asked
Jackson what was wrong with everybody. Jackson re-
sponded by telling Bryan about Smith's approaching him
to sign a petition to get rid of the Union. In the course
of their conversation, Bryan told Jackson that the Com-
pany was attempting to get business for the Aberdeen
plant from General Motors, that to do so the plant
would have to have a "Spear 2" rating, which would
guarantee nonstop production, 2 and that this could not
be done with a union. Jackson asked why and Bryan re-
sponded that it was because of the possibility of a strike.
Bryan said that if the Aberdeen plant did not get the
GM business it would be in trouble and that they could
all be without jobs. Bryan also said that Jackson would
have nothing to lose if the Union went out. Jackson re-
plied that he would have nothing to gain either. Bryan
then said, "I don't understand you," and walked away.
Bryan did not testify and Jackson's credible testimony is
uncontradicted.
Bryan's remark to Jackson that if the Union continued
as the employees' representative it would preclude the
Company from obtaining new business from General
Motors was untrue, was not based on objective facts, and
could reasonably be expected to interfere with the free
exercise of the employees' rights. It was an unlawful
statement of the detrimental results of continued union-
2 Plant Manager Maclean testified that GM's "Spear 2" rating is essen-
tial for a supplier of original equipment to be considered for future busi-
ness, but has nothing to do with uninterrupted production True or not,
Jackson credibly testified as to what Bryan told him and that he did not
otherwise know what "Spear 2" involved.
ization in violation of Section 8(a)(1) of the Act. 3 Like-
wise, Bryan's statement that without the GM business
they would all be out of jobs did not purport to be based
on any objective facts, but was an unlawful threat of
plant closure meant to coerce employees into supporting
the union decertification movement in violation of Sec-
tion 8(a)(1).4
2. Actions of Clayton Smith
Clayton Smith is a nonsupervisory employee who so-
licited employees to sign petitions to revoke the Union's
representative status. The General Counsel alleges that
Smith was acting as an agent for the Respondent and
committed several violations. The evidence is clear that
Smith did in fact solicit several employees to sign peti-
tions. However, it does not establish that Smith was an
agent of the Respondent. Smith did not testify and there
is no evidence how he got involved in circulating peti-
tions. Employee Doyle House testified that during June,
while the petitions were being circulated, he had a tele-
phone conversation with Smith. 3 It was not unusual for
them to talk by telephone with each other and the con-
versation began with a discussion of satellite television
receivers in which they had a mutual interest. Eventual-
ly, Smith asked House what he thought about "signing a
card getting the Union out." House responded that he
did not think they should do so. Awhile later Smith
again asked House if he did not think he should sign a
card and House again demurred. House asked Smith
what they would get out of it if the Union were out and
Smith said, "they said we would get a raise, we'd get
three more days holiday and a dental plan." House said
that the employees would not get such benefits because
"they can't promise us nothing," and Smith replied,
"Yeah, that's what they told us." Smith did not indicate
to House who he meant when referring to "they."
Although the benefits Smith referred to in his conver-
sation with House are similar to those mentioned as
being available to employees in the Company's Harrison-
burg and Seward plants by Licavoli in his speech to all
employees and in conversations other company supervi-
sors had with employees, there is no evidence that any
company representative ever promised such benefits to
Smith or authorized him to promise them to others. In
his conversation with House, Smith acknowledged that
there was no guarantee that removing the Union would
result in increased benefits and agreed with House that
"they can't promise us nothing." The facts that Smith
asked John Jackson to sign a petition the day before Su-
pervisor Bryan made unlawful threats to Jackson if he
was ready to sign the petition a day or two after Bryan's
remarks to Jackson and again asked Jackson do not, as
the General Counsel contends, establish that Bryan and
Smith were working in concert. It was Jackson who
mentioned to Bryan that Clayton Smith had solicited his
3 Crown Cork & Seal Co., 255 NLRB 14 (1981); Blaser Tool & Mold
Co., 196 NLRB 374 (1972),
4 NLRB Y. Gissel Packing Co., 395 U.S. 575 (1969); Coca-Cola Bottling
Co, 250 NLRB 1341 (1980).
5 House works at the Company's returned goods center, which is sev-
eral miles from the main plant where Smith works
WALKER MFG. CO, 891
signature on a petition. Nothing that Jackson said to
Bryan during their conversation gave any indication that
he was in favor of removing the Union or, likely to sign a
petition. Consequently, there is no basis to infer that
Smith's followup request to Jackson a day or two later
was at Bryan's instigation. I find there is no significant
evidence tending to support the allegation that Clayton
Smith was an agent of the Respondent or that would
lead other employees to believe Smith was speaking and
acting on behalf of management. I shall recommend that
the allegations that Smith engaged in unlawful interroga-
tion of an employee and unlawfully promised employees
increased benefits in the event they revoked the Union's
representative status be dismissed.
3. Actions of Supervisor Perry Carr
Perry Carr is the Respondent's production foreman
who directly supervises approximately 27 employees, in-
cluding all who perform welding functions. In February
1986, Can had begun an evaluation and training program
for the welders. When business conditions necessitated a
layoff of welders later in the year, it was Carr who made
an evaluation of the welders' skills, which was used to
determine who among them would be laid off or reas-
signed to lower rated jobs.
Ronnie Doss, a welder, testified that during early
June, after Licavoli's speech, he was approached at his
welding booth by Perry Carr, who began a conversation
by asking Doss how he felt about the Union. Doss an-
swered that he was satisfied and Carr asked what the
Union was doing for him. When Doss said he thought it
was doing all it could, Carr began describing wages and
benefits that employees at other nonunion plants of the
Respondent were receiving and Aberdeen employees
were not. These included better wages and dental and
prescription drug plans. Carr told Doss that if he wanted
to better his chances of getting better wages and benefits
he should sign a petition to get rid of the Union and said
that someone would be around later with the petition for
him to sign. About an hour and a half later, Robert
Vasser came to Doss and asked him if he was ready to
sign a paper to get rid of the Union. Doss signed the pe-
tition Vasser proffered. About 30 minutes later, Carr
came to Doss and asked if he had signed and Doss told
him "yes." Carr said nothing further to Doss about it.
Perry Carr generally denied ever interrogating any
employee about union activity or sympathy, promising
improved benefits if the Union's representative status was
revoked, soliciting signatures on a petition to remove the
Union, and initiating, sponsoring, or encouraging the cir-
culation of such a petition. Specifically, Carr testified to
having a conversation that Doss initiated by asking Carr
about a petition going around to get rid of the Union.
Carr responded that he did not know what Doss was
talking about. Then, Doss said that people were saying
that the Seward and Harrisonburg employees were get-
ting better benefits and Carr offered to give him a com-
parison of the three plants and what the employees at
each were getting. Doss asked Carr to do so and Carr
told him that the other two plants' employees were get-
ting better group life insurance, their wages were better,
and they got one more paid holiday. Doss replied that he
liked that and wished they had it. Carr told him one day
they might because anything was possible. Carr denied
asking Doss how he felt about the Union, telling him he
would get better benefits, asking Doss to sign a petition,
or sending anyone to Doss with a petition. Carr testified
that he had given other employees a comparison of
wages and benefits similar to what he gave Doss when
those employees asked him to do so.
No one else was present at the conversation between
Carr and Doss. Resolution of this matter is strictly a
question of the credibility of Carr versus that of Doss. In
observing Doss testify, I found him to be a credible and
convincing witness. 6 He is a current employee of the Re-
spondent who had signed a petition and testified in direct
contradiction of his immediate supervisor. Under the cir-
cumstances, it is unlikely that he would fabricate his tes-
timony. 7 I did not find Carr to be a credible witness
based on his demeanor while testifying, and I credit the
testimony of Doss over that of Carr concerning this inci-
dent to the extent that it differs.8
I find that Carr's questioning of Doss regarding how
he felt about the Union was a violation of the Act under
the criteria established by the Board in Rossmore ouse.9
There is no evidence that Doss was an open or active
union advocate. It was Can who raised the subject and
when Doss indicated that he was satisfied with the
Union, Carr began telling him about better wages and
benefits enjoyed by the Respondent's nonunion plants
and suggesting that he should sign a petition to get rid of
the Union in order to get such benefits at the Aberdeen
plant. Considering the totality of the circumstances, I
find Carr's interrogation of Doss was coercive and vio-
lated Section 8(a)(1) of the Act. Carr's promise of in-
creased benefits in return for removing the Union as the
employees' bargaining representative likewise violated
the Act as did his solicitation of Doss to sign an antiun-
ion petition. The facts that Carr told Doss someone
would be around with a petition, that 1-1/2 hours later
Vasser came to Doss and asked him if he was ready to
sign, and that half an hour after that Carr asked Doss if
he had signed, together, create a strong inference, which
6 The Respondent's attempt to attack Doss' credibility is not persua-
sive. He testified without hesitancy that Vasser had not approached him
to sign a petition until after his conversation with Carr. A careful reading
of Doss' testimony provides no support for the Respondent's contention
that Doss was uncertain about whether he had spoken to Vasser before
Carr.
7 See Gold Standard Enterprises, 234 NLRB 618, 619 (1978); St. Anne's
Home, 221 NLRB 839, 844 (1975)
8 Carr admitted to giving numerous employees throughout the plant a
comparison of the better wages and benefits employees at the Respond-
ent's nonunion plants were receiving, but claimed that in every case he
was merely responding to an employee's question about those benefits I
did not believe Cart's testimony that no one instructed him about what to
say concerning the benefits available at the nonunion plants I also did
not believe that he knew what the benefits were at the Seward plant be-
cause he had once seen a report that said their wages were higher and
other supervisors had told him "their benefits were better than Aber-
deen's" In each instance recounted, Carr unequivocally told employees
that the wages and benefits at both nonunion plants were better and de-
scribed what they were. Finally, I did not believe Carr's testimony that
he never knew that a petition was being circulated at the plant, but only
heard rumors to that effect. He apparently put enough credence in these
rumors that he reported them to the plant manager.
9 269 NLRB 1176 (1984).
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I draw, that Carr sent Vasser to him Carr's words and
actions went beyond what was permissible 10 He not
only solicited and facilitated Doss' signing of the peti-
tion, but continued to monitor the situation until assured
that Doss had signed. His actions violated the Act.11
Around June 10, employee LaRue Hampton observed
Carr talking individually with three other employees in
his work area. When Carr finished speaking, Hampton
called him over and asked what was going on. Carr re-
plied that Hampton already knew what was going on.
When Hampton said he did not, Carr began comparing
the wages and benefits that employees at the Seward and
Harrisonburg plants were getting with those at Aber-
deen. While Carr was doing this, employee James Willis,
who was standing nearby, interrupted and asked what it
would take for the Aberdeen employees to get what the
others were getting. Carr responded that they would
have to get the "damn Union" out of there.
On the same day, Carr had spoken to Willis alone and
mentioned the same benefits that the other plants' em-
ployees were receiving. He told Willis that he was going
"to send Rob around" to him. Some time later Robert
Vasser came to Willis and asked him if he wanted to sign
a paper indicating that he no longer wished to be repre-
sented by the Union. Willis declined to do so at that
time. Thereafter, Carr met Willis while walking to "the
crib" and told him not to forget what Carr had told him
and to think of his wife and kids because if they did not
get the Union out Carr was afraid that the plant would
shut down. Over the next few days, Carr said to Willis,
"don't forget what I told you," on several occasions
when they passed each other during the course of the
day. Willis was also asked to sign a petition by Clayton
Smith, but declined. He finally signed a petition when
asked by Billy Wells who told him it was the last day
because over 50 percent of the employees had already
signed. After signing, Willis told Carr that he had fixed
him up and Carr nodded.
The foregoing findings are based on the credible testi-
mony of Willis and the corroborating testimony of
Hampton with respect to the conversation involving
Willis, Hampton, and Carr. Carr flatly denied that any of
these conversations ever occurred; however, I found the
testimony of Willis and Hampton, who are current em-
ployees, more credible than that of Carr." Can's corn-
1 ° See Indiana Cabinet Co, 275 NLRB 1209 (1985).
" Central Washington Health Services Assn, 279 NLRB 60 (1986);
Western Truck Service, 252 NLRB 688 (1980).
12 There is nothing in the record to support the Respondent's gratui-
tous assertion that witnesses such as Willis and Hampton, who are black,
fabricated a story because they "viewed Carr as having succumbed to the
pressure of white management at the expense of racial loyalties by laying
off black welders while retaining less senior white welders." Equally un-
supported and speculative is its contention that Willis fabricated his testi-
mony because Carr had been involved in a decision to lay off his brother.
The only thing in the record concerning this was Maclean's testimony
that "he believed" a welder named Willie T.' Willis who had been laid off
was James Willis' brother I find this insufficient to establish that Willis
had a brother who was laid off or to discredit his testimony. Interesting-
ly, in one part of its brief the Respondent points to the testimony of
Hampton and Willis about their conversation with Carr, which the Re-
spondent contends never occurred, as substantiating its position that what
Carr said to various employees about wages and benefits was lawful.
ments to Wilis and Hampton that in order to get better
wages and benefits they had to get the Union out violat-
ed Section 8(a)(1) of the Act. His statement to Willis that
the plant might be closed was not founded on any factu-
al basis, but was an unlawful threat. As in the case of
Ronnie Doss, I find the facts support the inference that
Carr was responsible for Vasser's coming to Willis with
a petition for him to sign. Although Carr did not specifi-
cally ask Willis to sign the petition, his overall conduct
amounted to an unlawful attempt to solicit Willis' signa-
ture on the petition.
Employee Leo Gibson testified that Perry Carr came
to him in the distribution department on the morning of
June 10 and asked him how he felt about what was
going on at the plant. Gibson asked what he meant and
Carr said, "You know what I'm talking about." When
Gibson said, "a Union," Carr responded affirmatively.
Gibson said he thought they needed a union and Carr
began describing benefits that the Respondent's nonunion
plant employees had said and that the Aberdeen employ-
ees could have them too. Gibson again said that he felt a
union was necessary. Carr continued telling Gibson
about better wages, more vacation days, and a dental
plan the other plants had. When Gibson asked what he
had to do to get these benefits, Carr told him he had "to
sign this petition." He asked Gibson if he would sign,
and Gibson agreed. Carr told Gibson he would send his
man back in 5 or 10 minutes. A short time later Robert
Vasser came to Gibson and said that Perry had sent him.
He showed Gibson a piece of paper with a place to sign
in order to withdraw from the Union. Gibson told
Vasser he would not sign. About 5 or 10 minutes later,
Carr came back to Gibson and questioned him about not
signing. Gibson told Carr that he would not sign the pe-
tition because he was going to the union convention later
that month. Carr told Gibson that he had been counting
on him and that Gibson had let him down. Carr conclud-
ed their conversation by telling Gibson it was "strictly
off the record."
Carr testified that he talked to Gibson about the Union
in the distribution area during June, but said that Gibson
spoke first and accused Carr of trying to break up the
Union. Carr told Gibson he would not talk to him along
those lines because he was not going to be made to say
something unfair. Gibson accused Carr of promising ben-
efits to two employees in the distribution department and
Carr said he was just giving them a comparison of bene-
fits at the nonunion plants at their request. Gibson said
he wanted to know also and Carr gave him a comparison
of wages and benefits. Gibson said this was not true and
that Maclean had put Carr up to it. Nothing more was
said. Carr denied telling Gibson he could get benefits if
he got out of the Union and asking Gibson to sign a peti-
tion.
I found Gibson to be a believable and convincing wit-
ness. The Respondent seeks to attack Gibson's credibility
on the grounds that he is a union supporter and that his
testimony differs from that of Carr, neither of which is
persuasive. It appears that Can had convinced Gibson
that the Aberdeen employees could obtain better wages
and benefits and that he agreed to sign "a petition" until
WALKER MFG. CO . 893
he actually read it and learned that the petition required
withdrawal from the Union, something Gibson was un-
willing to do. As discussed above, I did not find Carr to
be a credible witness and credit Gibson's testimony about
their conversations where it differs from Carr's. Al-
though Carr testified that he knew Gibson to be a union
supporter who had been on "a Union trip before,"
Gibson credibly denied ever discussing the Union with
Carr or doing anything for the Union aside from attend-
ing meetings prior to June 1986. I find that Carr's action
in promising Gibson improved benefits, his soliciting
Gibson's signature on a petition to withdraw, from the
Union, and his monitoring Gibson's refusal to sign violat-
ed Section 8(a)(1) of the Act.
Employee Ted Booker testified that on 9 or 10 June,
Perry Carr approached him, asked him how he felt about
working without a union, said that without a union
wages and benefits would be increased, said the plant
would close down if they did not get rid of the Union,
and asked him to sign a petition to get rid of the Union.
After observing Booker's demeanor 'while testifying and
considering that his testimony about others in his depart-
ment telling him about being made promises by Carr and
being asked to sign a petition was contradicted by three
of' those workers, I find that Booker's testimony should
not be credited. These alleged violations have not been
established by a preponderance of the evidence.
Employee Robert Coggins testified about a conversa-
tion with Perry Carr in which Carr responded to Cog-
gins' questions about benefits at other company plants.
Coggins said, "Well, I think he [Carr] mentioned a few
things like they could close down, or we had lost a lot of
business to Nebraska, or Harrisonburg, or one of—some-
thing like that." I find Coggins' testimony too indefinite
to establish a threat of plant closure by Carr.
C. Alleged Violations of Section 8(a)(5)
The complaint alleges that the Respondent has unlaw-
fully withdrawn recognition and refused to bargain with
the Union since June 1986, in violation of Section 8(a)(5)
of the Act. The Respondent contends, based on the peti-
tions it received from employees indicating that they
wished to withdraw from the Union, that it has had a
reasonable doubt since 16 June that the Union continued
to enjoy majority status among its employees.
The Respondent's defense that the Union no longer
enjoys majority status must be raised in a context free of
unfair labor practices. 13 In the present case, I have
found that the Respondent engaged in several significant
unfair labor practices that occurred during the same
period of time that the petitions on which it contends its
doubt was based were being circulated and which were
directly related to undermining support for and encour-
aging withdrawal from the Union. Two of its supervisors
made unlawful threats of plant closure in the event the
employees failed to get rid of' the Union. One of those
supervisors, Perry Carr, also told several employees they
could get better wages and benefits, comparable to those
at the Respondent's nonunion plants, if they got the
13 Western Truck Services, supra at 691; Guerdon Industries, 218 NLRB
658, 659 (1975):
Union out of the Aberdeen plant. Carr was also directly
involved in the unlawful solicitation of employees to sign
petitions withdrawing from the Union. Two of the em-
ployees Carr solicited did sign petitions. This activity on
the part of the Respondent's supervisors tainted the with-
drawal petitions and, therefore, they cannot serve to jus-
tify the Respondent's refusal to bargain with the
Union. 14 I find that the Respondent, by withdrawing
recognition of and refusing to bargain with the Union,
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Walker Manufacturing Company,
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
by:
(a) The statement of Supervisor Butch Bryan to an
employee that continued union representation would be
detrimental.
(b) The actions of Supervisor Perry Carr in promising
employees increased wages and benefits if they withdrew
from the Union and coercively interrogating an employ-
ee about his union sympathies.
(c) The actions of Supervisor Perry Carr in assisting,
facilitating, and monitoring the circulation of petitions
whereby employees withdrew from the Union and solic-
iting employees to sign such petitions.
(d) The actions of Supervisors Butch Bryan and Perry
Carr in threatening employees with plant closure.
4. The Respondent violated Section 8(a)(5) and (1) of
the Act by withdrawing recognition and refusing to bar-
gain with the Union as the exclusive collective-bargain-
ing representative of its employees.
5. The aforesaid unfairlabor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Respondent did not engage in any unfair labor
practices alleged in the complaint not specifically found
herein.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed15
14 Jay Mold & Machine, 255 NLRB 942 (1981); Fort Wayne Newspa-
pers, 247 NLRB 548 (1980).
15 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, an recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Walker Manufacturing Company,
Aberdeen, Mississippi, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union sympathies or activities.
(b) Promising employees increased wages and benefits
in return for signing petitions withdrawing from repre-
sentation by the Union.
(c) Telling employees that continued representation by
the Union would be detrimental.
(d) Assisting, facilitating, and monitoring the circula-
tion of petitions whereby employees withdraw from rep-
resentation by the Union and soliciting employees to sign
such petitions.
(e) Threatening employees with plant closure in the
event they continue to be represented by the Union.
(t) Refusing to bargain with the Union as the exclusive
collective-bargaining representative of its employees in
the appropriate unit.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively concerning wages,
hours of employment, and other terms and conditions of
employment with the Union, as the exclusive collective-
bargaining representative of all employees in the appro-
priate unit and, if an agreement is reached, embody it in
a signed contract.
(b) Post at its facilities in Aberdeen, Mississippi, copies
of the attached notice marked "Appendix." Copies of
the notice, on forms provided by the Regional Director
for Region 26, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply. For the purpose of determining or se-
16 If this Order is enforced by a judgment of,a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
curing compliance with this Order, the Board, or any of
its duly authorized representatives, may obtain discovery
from the Respondent, its officers, agents, successors, or
assigns, or any other person having knowledge concern-
ing any compliance matter, in the manner provided by
the Federal Rules of Civil Procedure. Such discovery
shall be conducted under the supervision of the United
States court of appeals enforcing this Order and may be
had on any matter reasonably related to compliance with
this Order, as enforced by the court.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate employees concerning their
union sympathies or activities.
WE WILL NOT promise employees increased wages and
benefits in return for signing petitions withdrawing from
representation by URW Local 833, United Rubber,
Cork, Linoleum & Plastic Workers of America, AFL—
CIO.
WE WILL NOT assist, facilitate, or monitor the circula-
tion of petitions seeking to withdraw from representation
by the Union or solicit employees to sign such petitions.
WE WILL NOT threaten employees with plant closure
in the event they continue to be represented by the
Union or tell them that such continued representation
will be detrimental.
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the appropriate unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees on the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL, on request, bargain collectively with the
Union concerning wages, hours of employment, and
other terms and conditions of employment of our em-
ployees in the appropriate unit and, if an agreement is
reached, WE WILL embody it in a written contract.
WALKER MANUFACTURING COMPANY