The Duplan Corp.

National Labor Relations Board - Board Decisions

Nov 16, 1962

139 N.L.R.B. 1028 (N.L.R.B. 1962)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, it is recommended that the amended complaint herein be dismissed.
spondent on behalf of the Union , the Respondent would have been properly charged with
a violation of the Act. The complaint was not so narrowly drawn as to preclude proof
of either of these matters , and under well-established rules of pleading , in ruling on a
motion to dismiss, the Board was entitled to construe the complaint most favorably to the
General Counsel . As these considerations would suffice to explain the Board 's action in
reinstating the complaint , it seems permissible to regard such action as not necessarily
dispositive of the issues before me.
The Duplan Corporation (Forsyth Division ) and Brice C. Oakley
The Duplan Corporation ( Forsyth Division) and Textile Workers
Union of America, AFL-CIO-CLC
The Duplan Corporation ( Forsyth Division ) and Textile Workers
Union of America, AFL-CIO-CLC. Cases No,. 11-CA-1886,
71-CA-1922, and 11-RC-1611. November 76, 1962
DECISION AND ORDER
On August 1, 1962, Trial Examiner Harold X. Summers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent has engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, and recommending further that the elec-
tion conducted on May 3, 1962, in Case No. 11-RC-1611 i be set aside,
and a new election held, as set forth in the attached Intermediate
Report.2 He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that the complaint be dismissed with respect thereto.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port, but no supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
'Pursuant to a Decision and Direction of Election issued by the Regional Director for
the Eleventh Region on April 6, 1962 (not published in NLRB volumes).
'On the basis of an investigation of objections to the election held May 3, 1962, the
Regional Director issued a Supplemental Decision and Direction (Case No. 11-RC-1611)
in which he determined that certain issues raised by the investigation could best be re-
solved by a hearing . The Regional Director subsequently issued an amended order con-
solidating the "C" cases herein with Case No . 11-RC-1611 for hearing and calling for a
report to the Regional Director in Case No. 11-RC-1611 On June 11 , 1962, the Supple-
mental Decision and Direction was further amended to the effect that the Trial Examiner's
recommendations in the "R" case should be directed to the Board
139 NLRB No. 87.
THE DUPLAN CORPORATION (FORSYTH DIVISION) 1029
mediate Report, the exceptions , and the entire record in these cases,
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the.
Trial Examiner.'
IT IS FURTHER ORDERED that the election of May 3, 1962, be, and it
hereby is, set aside, and Case No. 11-RC-1611 is hereby remanded
to the Regional Director for the Eleventh Region for the purpose of
conducting a new election at such time as lie deems the circumstances
permit the free choice of a bargaining representative.
J The penultimate sentence of the notice is hereby amended to read. "This notice must
remain posted for 60 consecutive days from the date of posting . . ." instead of stating
"60 days from the date hereof."
INTERMEDIATE REPORT AND REPORT ON OBJECTIONS
An unfair labor practice charge (Case No. 11-CA- 1886 ) having been filed by
Brice Oakley , an individual, on January 26, 1962, against The Duplan Corporation
(Forsyth Division ), the General Counsel issued a complaint on March 13, 1962,
alleging that Respondent had engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act; and an unfair labor practice charge (Case No. 11-CA-
1922 ) having been filed by Textile Workers Union of America , AFL-CIO-CLC,
on March 16, 1962, against Respondent , the General Counsel of the National Labor
Relations Board issued an order consolidating Cases Nos. 11 -CA-1886 and 11-CA-
1922 and an amended consolidated complaint on April 18, 1962, alleging that Re-
spondent had engaged in unfair labor practices in violation of Section 8(a)(1) of the
Act A second amended consolidated complaint was issued on June 5, 1962.
Respondent , in due time either before or at the hearing , filed anwsers to the various
complaints ; it admitted certain allegations , denied others , and denied the commis-
sion of any unfair labor practices.
Meanwhile , in Case No. 11-RC-1611 , on the basis of an investigation of objec-
tions to an election filed on May 7, 1962, the Regional Director for the Eleventh
Region on June 5, 1962 , issued a Supplemental Decision and Direction in which
he determined , among other things, that certain issues raised by the investigation
could best be resolved by a hearing thereon.
On June 5, 1962 , the Regional Director issued an amended order consolidating
Cases Nos. 11-CA-1886, 1l-CA-1922, and 11-RC-1611 and a notice of hearing
on the second amended consolidated complaint and on the issues framed by the
Supplemental Decision and Direction.'
A hearing was held before Trial Examiner Harold X . Summers at Winston-
Salem, North Carolina, on June 13 and 14, 1962. At the hearing, the complaint was
amended in certain respects , and the amended matters were duly answered ; also, the
Regional Director narrowed the scope of the issues with respect to Case No. 1 1-RC-
1611 2 All parties were afforded full opportunity to present evidence , to examine
1 The notice of hearing , as originally issued , called for an Intermediate Report in Cases
Nos. 11-CA-1886 and 11-CA-1922 and for a report to the Regional Director in Case No
11-RC-1611 On June 11, 1962 , the Supplemental Decision and Direction was amended
to the effect that the Trial Examiner's recommendations in Case No. 11-RC-1611 should
be directed to the Board Although the notice of hearing was not similarly amended, the
General Counsel , early in the hearing, moved that the Intermediate Report contain recom-
mendations as to the representation case, and the other parties indicated they had no
objections ; the motion is hereby granted
2 The Supplemental Decision and Direction had recited , as issues requiring a hearing for
their determination , a number of incidents allegedly occurring at various times from
January 9 through April 30, 1962. Since the petition leading to the election being ques-
tioned was not filed until February 27, 1962, counsel for the General Counsel, acting on
behalf of and at the request of the Regional Director , relayed his understanding that
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and cross-examine witnesses , to argue orally , and to submit briefs. Briefs have been
filed by the General Counsel and by Textile Workers Union of America , AFL-CIO-
CLC, which briefs have been fully considered.
Upon the entire record in the case,3 including my evaluation of the credibility
of the witnesses based upon the evidence and upon my observation of their demeanor,
I make the following:
FINDINGS OF FACT
1. COMMERCE
The Duplan Corporation (Forsyth Division), herein called Respondent, is a
corporation existing under and by virtue of the laws of the State of Delaware. En-
gaged in the business of processing fiber, it has plants in North Carolina, Tennessee,
and Pennsylvania, but only its plant at Winston-Salem, North Carolina, is involved
herein.
Respondent, during the 12 months preceding June 5, 1962, received goods at
its Winston-Salem plant shipped from points and places outside the State of North
Carolina, valued in excess of $50,000; and, during the same period, it shipped from
its Winston-Salem plant to points and places outside the State of North Carolina,
goods valued in excess of $510,000.
I find that Respondent is an employer engaged in commerce within the meaning
of the Act
H. THE UNION
Textile Workers Union of America , AFL-CIO-CLC, hereinafter called the
Union , is a labor organization within the meaning of the Act.
III. CHRONOLOGY OF EVENTS 4
1. The Union conducted an organizing campaign among employees of Respond-
ent beginning in January 1962.5
2. On or about January 11, 1962,6 Frederick Freudig, superintendent of the
hosiery throwing department,7 had a conversation with Alice Amos, a coning
operator in the coning department.8 Amos testified that, raising the subject of the
Union, Freudig told her that Hanes Hosiery ( a substantial customer for Respondent's
output of hosiery yarn ) ought to be organized before Respondent was organized,
to which she replied that she had neither signed nor distributed any union cards
and anyone who said otherwise was lying. Freudig testified that the only conversa-
tion with Amos which he remembered was one in which she stopped him near her
workplace and, remarking that everybody was accusing her of being an organizer,
she wanted him to know that she was not; he ( he further testified ) said nothing
about Hanes-in fact , he refused to discuss the matter further because he was busy.
matters occurring prior to that date could not be used , except as "background" material,
as a basis for setting aside the election ( Ideal Electric and Manufacturing Company,
134 NLRB 1275 ) I regard this as In the nature of a motion to amend the Supplemental
Decision and Direction to delete all reference to incidents allegedly occurring prior to
February 27, 1962 The Petitioner In 11-RC-1611 concurred in the General Counsel's
action and the Employer voiced no objection The motion is hereby granted
3 On July 10, 1962, I Issued an order to show cause why the transcript of the hearing
should not be corrected in specified respects No good cause to the contrary having been
shown , the corrections indicated In the order to show cause , which is received in evidence
as Trial Examiner's Exhibit No. 1, are hereby ordered made
4 My findings of what occurred-or what did not occur-as recited In this section will
not be repeated elsewhere in this report References elsewhere in the report to items in
this section will take the form of the abbreviation "Chron." followed by the item number
or numbers being discussed.
5 I base this finding upon the affirmative , credited testimony of various of the General
Counsel's witnesses , although a number of Respondent's witnesses testified that they were
unaware of the campaign until, at the earliest , February In so finding , I do not neces-
sarily find that all Respondent 's supervisors knew of the campaign in January . The first
public distribution of union literature of which this record contains information occurred
on February 13.
B Unless the contrary is indicated , all dates mentioned hereinafter are for the year 1962
7 Respondent ' s answer admits , and I find , that Freudig is a supervisor within the mean-
ing of the Act.
3In finding that the conversation occurred on or about January 11, I credit Amos.
Freudig did not remember the date, but , as will be seen, he remembered enough of the
conversation to identify it as the same conversation to which Amos was testifying.
THE DUPLAN CORPORATION (FORSYTH DIVISION) 1031
I credit Amos' testimony and find the conversation as that to which she testified .9
3. On or about January 16, Clifford Carter, foreman on the second shift in the
coning department,10 approached coning operator Kathleen Oakley at her work-
place at approximately 4 p.m. He said he was sorry about the discharge of Brice,
her husband," and he said that perhaps Brice would be better off since he would
probably get a better job in time. When she asked who could get a better job
with what had been noted on his "separation papers," 12 Carter agreed that "they
really throwed the book at him." She then said she knew the real reason for her
husband's discharge-"because he was for the Union," adding, "I am too." To
this, Carter said, "Kathleen, I'll forget you ever said that, just don't say it to anyone
else up here, it is bad enough one being out of work , much less two." 13
4. Next day-January 17-Kathleen Oakley asked Carter about the advisability
of showing her husband's dismissal notice to Owen George, a first-shift super-
visor who had earlier said, in effect, that he would not say anything bad about
Oakley's husband.14 Carter advised Oakley not to take the paper to George. She
questioned the advice; saying that "if they knew Brice was for the Union, they
would know I was too," she asked, "What do they want to do, fire me too?"
Carter's answer, as he walked off, was "Yep." 15
5. On January 22, allegedly, a conversation took place between Charles Swift,
a fixer on the second shift, and Sherman Bowman, head foreman on that shift.ls
Swift testified to the following: The conversation, which took place in the men's
bathroom, was initiated by Swift's saying he heard Brice Oakley was fired because
of the Union. Bowman denied this, saying that the discharge was for cause and had
been long overdue. Then Swift asked Bowman what the latter knew about the
Union, to which Bowman countered that Swift had better tell him-he knew more
about it. Continuing, Bowman asked who "started" the Union; Swift did not tell
him except to say that it was not a person Bowman thought it was. Then Swift
asked whether the mill would close if the Union came in; in answer, Bowman said
he did not think so, but that the plant would operate with those "good enough to
stay . while the rest of them was out." He said further that Respondent would
not sign a contract with any "kind of organization ,"-this was the "Company
policy."
Bowman flatly denied that any such conversation took place. Not recalling ever
having "talked union" with Swift, he specifically denied ever talking to him about
the person who started the union movement or about the Company's signing-or
not signing-a contract with the Union.
9 My observation of Amos persuades me that she would not exaggerate or fabricate.
Freudig , particularly on cross -examination as to a pretrial statement made to a Board
agent , was evasive ; in disclaiming the correctness of the statement , he gave, in my opinion,
a strained interpretation.
11 The answer admits, and I find , that Carter is a supervisor within the meaning of
the Act.
11 Brice Oakley had been discharged on January 15 His discharge was not an issue at
this hearing.
12 Among other things, Brice Oakley's dismissal notice had attributed the discharge to
misconduct and tardiness
13 This finding is substantially based upon the credited testimony of Oakley , whose de-
meanor convinced me of her truthfulness . Carter displayed an undue wariness which, on
occasion, led to self-contradictions For example , he placed this conversation as occurring
when Oakley received her husband 's dismissal notice; he said the subject of union did
not come up in any way, shape , or form ; yet he remembered that Oakley had said her
husband was fired because of the Union ; and he did not hear anything about a union until
"some time in February ." His testimony as to this and other incidents was marked by
numerous failures of recollection , necessitating refreshment thereof by counsel In my
opinion, Carter's dilemma as a witness was occasioned by his obvious friendliness with-
and frankness toward-his subordinates as contrasted with his responsibilities as a
supervisor
14 George is not involved in any allegation of this complaint.
is This finding accords with Oakley's testimony , except for her statement that Carter
started the conversation, which, in context, I reject as implausible. Carter 's version:
On one occasion , date unspecified , Oakley asked him if Respondent was going to get rid
of her, to which he replied , "No, indeed , as long as you keep your job up and do your
work right, you will have a job here "
11 The answer admits, and I find, that Bowman was a supervisor within the meaning of
the Act
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crediting Bowman's testimony, I find that the conversation related by Swift never
took place.17
6. On or about January 23, McRae (Mack) Temple, foreman in the textile yarn
department,18 spoke to Sue Bowers, line operator, about the defective yarn which
was being produced during that period. As he rose to leave, he said, "If you hear
or see anything going on , come and tell me. It'll never leave this office " 19
7. On or about January 24, according to Charles Swift, Mack Temple approached
him in the superloft department as he readied for work. He said he would like
to talk to Swift, and they walked to the office. There (Swift's testimony continues),
Temple asked whether Swift had not always been treated well, and what Swift had
"against the Company." When Swift said that, for one thing, the pay was too low,
Temple, disclaiming a desire to make any threats, asked Swift if he was aware
what would happen if a union came into the plant. Swift said he did not know,
but he thought it would be a good thing. Temple then said that if a union came in,
"they would lock the gates, and we would all be out of work."
Temple denies that any such conversation took place, at this or any other time
I credit his testimony and find that it did not.20
8. On January 26, the charge in Case No. 11-CA-1886 was filed.
9. On or about February 8, Kathleen Oakley and Clifford Carter had a conver-
sation. The topic of conversation was slackness of work (Prior to January, the
plant was working full time, and one department was working 6 days per week.
At or about this time, the work had fallen off.21) Among other things, Carter
told Oakley that Hanes would not order from Duplan if Duplan had a union. He
said that Respondent had moved from up north because of unions and would close
down if a union came in. Oakley's rejoinder was that the Company would have
to prove to the Government that they did not have orders before they could shut
down.22
10. On February 27 the petition in Case No. I1-RC-1611 was filed.
11. On March 13 a complaint was issued in Case No. 11-CA-1886. The com-
plaint was accompanied by a notice of hearing set for April 30.
12. On March 16 the original charge in Case No. 11-CA-1922 was filed
13. On March 21 a hearing was held in Case No. 11-RC-1611
14. On April 6 the Regional Director for the Eleventh Region issued a Decision
and Direction of Election in Case No. 11-RC-1611.
15. On or about April 16, William Ray Thomas, foreman of the third-shift
spinning department,23 had a conversation with John Love, third-shift spinning
operator. At approximately 2:30 a in., Thomas called Love into the office, alone.
There, he asked, "John, what do you think about it?" To Love's query, "What-
the Union?" Thomas said, "You know what I'm talking about. Well, I want to
tell you right now, John. I'll say the Union wouldn't be no good in here, for the
`old man' wouldn't accept it." He then asked what good Love saw in the Union.
When Love, complaining that employees got only 71/2 hours' pay while the machine
ran for 8 hours, suggested that "maybe we would get a voice in the company,"
Thomas said, "Well, I'll tell you right now, if the Union comes in here, and you
walk out on strike, you'll be gone, you'll be out, everyone of you can be replaced
171 was not impressed by Swift , who paused unduly long before giving many of his
answers.
19 The answer admits, and I find, that Temple is a supervisor within the meaning of
the Act.
19 The above finding is based on the credited testimony of Sue Bowers. Temple does
not relevantly dispute these facts although-as will be discussed later-his and her inter-
pretations of the conversation substantially differ.
20 I have commented elsewhere on my opinion of Swift's reliability as a witness Temple
impressed me favorably
a The cut in the workweek is not an issue in this proceeding
21 This finding is based on the testimony of Oakley , as opposed to that of Carter, who
testified that Oakley asked him bow he felt about the Union ; that he gave her his "per-
sonal opinion" that the Company had not made a lot of money for the past several years
and that "if anything goes wrong" ( meaning "if a union struck . . or anything") and
Hanes could not get their production and if Respondent lost enough customers, "we'd"
be out of work ; and that he said nothing about shutting down or about Duplan 's moving
from up north to get away from a union . I have earlier commented upon the relative
reliability of Oakley and Carter as witnesses.
23 The answer admits, and I find , that Thomas is a supervisor wtthin the meaning of
the Act
THE DUPLAN CORPORATION (FORSYTH DIVISION) 1033
immediately if you do that, for there [are] plenty of people . . . hunting jobs."
He went on, "John, you know what the law says, what it requires your wages to
start at, don't you?" Love said, "Yes, $1.15." "Well," said Thomas, "If the
Union comes in here, that's probably where your wages will stop, you won't be able
to get an increase at all from the Union." 24
16. On or about the same day-April 16-Clifford Carter had a conversation
with Cora Miller, coning operator on the second shift. He approached her with a
reference to "this business which has come up." When she asked, "What business?"
he said, "The Union." She said that she was for the Union "100 percent." He
suggested she consider the things Respondent had done for the employees to which
she observed, "Like what? Increasing and tripling our assignments?" He told her
she must "remember the good things along with the bad," but she persisted in saying
she was "for the Union." He then asked, "Can't you talk to some of the girls and
convert them?" When she said she would not, he left her, saying, "On election
day, I hope your vote is a big N-O1 no." 25
17. On April 18, the General Counsel, by the Regional Director, issued an
amended consolidated complaint in Cases Nos. I1-CA-1886 and 11-CA-1922.
The hearing on the complaint was now scheduled for May 28.
18. On or about April 30, Kathleen Oakley was stopped by Clifford Carter as
she passed his desk. He commented that he heard she had "a little job planned
for Thursday." After a short exchange, she admitted that she had planned to ask
for Thursday off in order to act as an observer in the election set for that day.
He said he could not let her off. She answered, "Well, I'll just have to take off
then." To this, he said, "What are you trying to do, get both of us fired?" She
denied any such intention, and he said, "Well, you know, that was the way it
looked . . . I hate to see you get mixed up in this." When she asked what he
meant, he asked how old she was; she said she was old enough to vote. He then
asked why she did not quit if she did not like her work. She said she did like her
work, which was the very reason she was trying to help bring the Union in. Again
he said, "I hate to see you get mixed up in it." She then asked whether he meant
that, if she were to look elsewhere for a job, he would tell them (prospective
employers) that she was for the Union or had been in a union campaign at Duplan.
He replied in the affirmative, and when she said this was "against the law," he said,
in effect, that it was not. After a discussion of the "government's" backing of the
Union, .the conversation veered to production. Carter said Respondent had been
operating in the red and could not afford to give raises. Oakley expressed the
opinion that Respondent was doing well and could not afford to shut down. Carter's
comment was, "If the Union come in , that would help." 26
19. On May 2, at 2 p.m., Leota McKnight, coning operator on the first shift,
asked her foreman, Willie Gabard,27 for time off on the following day, so that she
could be an observer for the Union at the election. (Mary Spencer, McKnight's
24 The facts recited in this finding are based on the credited testimony of Love, whose
demeanor as a witness persuaded me that he was telling the truth Thomas testified that
a conversation took place but said it was initiated by Love's volunteering that lie was
not involved in the "mess" or the Union ; that Love complained of his low pay, whereupon
he (Thomas ) pointed out that Love was getting $1 55 or $1.60 contrasted with the $1 15
required by law ; that he did not say there would be replacements in the event of a strike
(although , he testified , he understood that this was lawful) ; and that he did not use the
term "old man ." Thomas was a nervous witness , whose memory continually required
jogging.
25 Thus, I have credited Miller as opposed to Carter, who testified that Miller raised the
subject of the Union , saying she was 100 percent for it, and that he merely said , " Cora,
you are a grown person, and you can vote however you want to, but I hope you vote for
the company " I was favorably impressed by Miller as a witness . Counsel for Respond-
ent, in oral argument , pointed to the implausibility of Carter ' s having urged a person
who had asserted she was 100 percent for the Union to persuade others to work against
the Union. My observation convinces me that, in his relations with his subordinates, such
implausibility was not out of line with Carter's character ; moreover , for him to have
acted as testified to by Miller is no less plausible than-as conceded by Carter-his having
expressed the hope to this "100 percenter" that her vote would be against the Union
20 This finding is constructed from the credited testimony of Oakley . Carter, in his
testimony , remembered her mentioning that she would probably be quitting in a few
more months , due to pregnancy , and his saying , "I would hate to see you quit" , and lie
specifically denied talking about blacklisting her As indicated , I credit her testimony
27 The answer admits, and I find, that Gabard is a supervisor within the meaning of
the Act.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
floorlady, who was present, spoke up at this time, but the interrupted testimony as to
her remark was not pursued by counsel; so I make no finding respecting it.28) Gabard
said he could not excuse her since he had work for her. She said that her absence
was necessary in view of the fact that she had volunteered to act as an observer.
Gabard then said, "Leota, why have you turned against the company and us like
this? You know we like you, and have been good to you, and you have a good job
here, and we are glad to have you back." She repeated her insistence that she needed
the time off, and he asked, "Well, how are you going to vote?" She said that would
be a secret, and he said that "You could blackball the union if you wanted to, couldn't
you?" Her reply: "I didn't say I would." He then said she could have the time off,
but did say, "I just want to ask you, did they have a hard time getting anybody to be
an observer for the Union?" McKnight said, "No, I volunteered," and this ended
the conversation.29
20. On the same day, May 2, at 2:30 p.m., Alice Amos 30 asked Willie Gabard
if anyone was going to be "scheduled off" on the following day. (At that time,
coning operators were off 1 day each week.) He asked, "Why, do you want to be
off?" Her answer was, "No, not if it's not my time. I heard there wasn't going
to be anyone out tomorrow." Gabard verified this fact through the floorlady, upon
which Amos said, "Well, if I'm not out tomorrow, I'll be out Friday [the following
day]." Gabard then asked, "How are you going to vote tomorrow?" "I don't know,
I have not made up my mind," she replied. Gabard then said, "If I let you off tomor-
row, you won't come in and vote." Amos asked him if he was trying to "blackmail"
her, she had heard, she said, that if she did not vote one way or the other, she
would be "sorry out." Gabard then repeated his earlier question, "How are you
going to vote?" and she reasserted that her mind was not made up. After a few
(in this record) confusing remarks referring to one "Elsie," the conversation ended.
As she started to walk off, Gabard asked her if she had attended the union meeting
on the previous Sunday. Her answer: "Yes, I was there, and wasn't the only one
that attended." 3i
21. On May 3, an election was held among Respondent's employees under the
supervision of the Regional Director. The results:
Eligible to vote-------------------------------------------------- 411
Void ballots----------------------------------------------------- 4
Votes cast for Union-------------------------------------------- 173
Votes cast against Union------------------------------------------ 190
Challenges ----------------------------------------------------- 20
22. On May 7, the Union filed objections to the election.
23. On or about May 24, at 7 p.m., Carter approached Kathleen Oakley at her
work and asked her if she was going to "drop charges" against him or to forget about
the hearing.32 She gave a negative answer, saying they were not her charges and
saying she had nothing to hide. Carter then said, "Well, I thought what we talked
about was confidential between you and me, that the Labor Board wouldn't find out
about it . You'll probably be the only one testifying"; and, he continued, it
would probably cause nothing but ill feeling between the two of them. Her retort:
"If I lose a friend for telling the truth, I never had a friend to start with."
The conversation veered to Oakley's husband's discharge. She commented that,
if Brice got his job back, "probably there wouldn't be anything to it." When Carter
said that was not up to him, she said he was in a position to talk to (Plant Manager)
Taylor. At this point, Carter said he was scared. "Kathleen, I'm scared I'll
28 Neither Spencer's supervisory status nor any conduct on her part is at Issue here
29 My finding accords with McKnight's testimony. Gabard, who did not recall the con-
versation, specifically denied ever asking McKnight how she was going to vote. Conceding
that, in a conversation, he asked her why she did not like Respondent--he testified lie
knew she was pro-Union-he said he received no answer I note that between the ques-
tion by Respondent's counsel : "And [she says] that the subject of observers came up,
the union observers for the election Do you remember anything about that?" and
Gabard's answer- "No sir," there was an unduly long pause On such a subject, allegedly
of such recent vintage-and he had had the advantage of hearing McKnight testify
earlier-I would have thought that his answer, negative or affirmative, would have been
quickly evoked
Who also figures In Chron. 2
81 Thus, I credit Amos' testimony Gabard denied asking how Amos intended to vote
and whether she had attended a union meeting From my observation, Amos is the more
convincing witness
32 Which was now set for the 28th
THE DUPLAN CORPORATION (FORSYTH DIVISION) 1035
lose my job." She expressed little sympathy , commenting that his family and hers
might be in "the same boat."
Oakley then said she had passed on his remarks about blacklisting her (see Chron.
18), upon which he denied that he had ever said that; she said he was lying.
As the conversation ended, he said he was "going to be absent minded" ; her last
words were, "Yes, just like Mr. Taylor asked you to." 33
24. One hour later, Carter approached Oakley again. He asked what was
wrong, why she was not as happy as she had been earlier. When she said there
was nothing wrong, he asked her if she did not want to discuss what they had been
talking about earlier. She said that she did not.
25. At 10 p.m., on the same date, Carter brought Oakley her paycheck, with
"Here, Kathleen , this is as much money as you can make anywhere . Why don't
you forget about everything?" She, in turn, asked if he thought her the type of
person who would put lies in a Government affidavit 34
26. On or about May 25, Carter asked Oakley if she was going to drop the
charges. When she said she had no such intention, he suggested that she only had
to call the Labor Board and tell them that she had backed out, that she thought it
best not to appear.35
27. On May 25, the Union withdrew 19 of the 20 challenges of votes cast at
the election , and the hearing on the consolidated complaint was reset from May 28
to June 13.
28. On a date unspecified, but between May 15 and 30, Carter approached Oakley
at her work and asked if she had "heard anything." She said she had not but,
if she had, she would not tell him.
29. On June 1, the ballots on which the 19 challenges had been withdrawn were
counted. The revised tally of results:
Eligible to vote-------------------------------------------------- 411
Void ballots----------------------------------------------------- 4
Votes cast for Union---------------------- ------------------------ 175
Votes cast against Union---- -------------------------------------- 207
Unopened challenges--------------------------------------------- 1
30. Meanwhile , the investigation of the objections filed on May 7 had been go-
ing on. On June 5, the Regional Director issued the Supplemental Decision and
Direction and the second amended consolidated complaint which are the subject of
this hearing.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
As alleged in the amended complaint, I find that Respondent interrogated em-
ployees concerning their and other employees ' union membership , activities, and
desires, through its supervisor, William Ray Thomas, on or about April 16, 1962,36
and through its supervisor , Willie Gabard, on or about May 2, 1962.37 I do not
33 The findings as to this conversation accord with the testimony of Oakley, whom I
credit. Carter testified that he jocularly asked her if she was appearing against Respond-
ent; that he never mentioned that prior conversations between them had been " confiden-
tial" ; that Oakley said, if her husband were reemployed , "We'll drop it [the case]";
and that he never mentioned that he would be "absent minded " or, in fact , that Taylor
had ever told him to be absentminded ( I have not drawn, nor shall I draw , any inference
as to any conduct by Taylor arising out of this remark. ) Respondent ' s counsel has urged
that a witness who offers to withdraw from participation in the case if her husband is
reinstated is not worthy of belief . I disagree Assuming , without finding , that this inter-
pretation of her remarks be the correct one, I believe it would be more a reflection on
her willingness to testify rather than on her credibility . The issue is whether Carter said
what she testified she said; on this issue I take into consideration , in addition to my
observation of the witnesses , the plausibility of the conflicting versons, and, in context,
I am convinced as found above.
u Carter's ( rejected ) version: He brought her paycheck , a fairly large one, and said,
"You old operators , you make extra good money . I don't see why you all wouldn't be
satisfied "
31 Based on Oakley 's credited testimony . Carter did not remember any conversation
with Oakley about her dropping charges or refusing to testify , except for an occasion on
which she "was kidding about her birthday and said if I would go out with her and
celebrate her birthday , she would drop the charges
',See Chron 15
37 See Chron 19 and 20.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find interrogation by McRae Temple,38 by Sherman Bowman,39 or by Frederick
Freudig.40
As alleged in the amended complaint, I find that Respondent threatened em-
ployees with a shutdown of the plant if the Union won an election, through its
supervisor, Clifford Carter, on or about February 8, 1962,41 and on or about
April 30, 1962.42 I find no such threats by Frederick Freudig 43 or by McRae
Temple 44
As alleged in the amended complaint, I find that Respondent threatened employees
with loss of employment if they engaged in union activities, through its supervisor,
Clifford Carter, on or about January 16 45 and January 17, 1962.46 I find further-
although the incident was not specifically alleged, the issue was generally covered
by the complaint and was fully litigated at the hearing 47-that Respondent, through
its supervisor, Clifford Carter, on or about April 30, 1962, threatened Kathleen
Oakley with discharge if she acted as an observer at the coming election.48
I find no support for the allegations in the complaint that Respondent through its
supervisor, Sherman Bowman, threatened employees by informing them that Re-
spondent would not sign a contract with the Union if the Union should win an
election,49 or that, through its supervisor, McRae Temple, Respondent requested
employees to report on the union activities of other employees.50
As alleged in the amended complaint, I find that Respondent threatened an em-
ployee that it would inform other prospective employers of an employee's union
activities, through its supervisor, Clifford Carter, on or about April 30, 1962 . 51
As alleged in the amended complaint, I find that Respondent requested em-
ployees' assistance in influencing other employees to vote against the Union, through
its supervisor, Clifford Carter, on or about April 16, 1962.52
As alleged in the amended complaint, I find that Respondent attempted to in-
fluence employees not to testify against Respondent in the instant unfair labor prac-
tice hearing, through its supervisor, Clifford Carter, on or about May 24 and 25,
1962.53
Since it was not alleged in the complaint, and since it was not generally covered
thereby, I make no finding of unlawful threat of loss of pay if the Union should be
successful in its organizing campaign, as made by Respondent through its supervisor,
William Ray Thomas, on or about April 16, 196254
In the interrogations, threats of shutdown, threats of loss of employment, threat
of blacklisting , request for an employee 's antiunion assistance , and attempt to
38 See Chron. 7.
30 See Chron. 5
4° See Chron . 2 The credited testimony reveals no questioning by Freudig.
41 See Chron 9.
0 See Chron. 18.
43 See Chron . 2. I do not find a threat of shutdown in his suggestion that a customer be
organized first
44 See Chron 7.
45 See Chron. 3.
4a See Chron. 4.
47Local 198 , International Union of Operating Engineers , etc (Nassau and Suffolk Con-
tractors' Association, Inc.), 123 NLRB 1393, footnote 8; Pacific Mills, 91 NLRB 60, 61
Cf. Newspapers and Mail Deliverers ' Union of New York and Vicinity ( New York Times
Company et al ), 101 NLRB 589; Porter-DeWitte Construction Co., 134 NLRB 963.
43 See Chron 18.
"See Cbron 5
60 See Cbron 6. The credible testimony indicates, and I find, that at or about mid-
January, Respondent was beset with production problems-yarn was being rejected by
customers as defective ; either sabotage or wanton negligence was suspected , and efforts
were being made to correct the situation ; all involved personnel were retrained, and a
number of personnel changes were made ; and, among others, Sue Bowers ( who was not
suspected of performing defective work) was personally interviewed about the possible
sources of trouble. I find that, in asking Bowers to report to him on "anything going
on," Temple was referring to this production problem ; and that Bowers, although she
may have believed he was referring to the organizational campaign, had no reasonable
basis for her belief.
51 See Chron. 118.
51 See Chron. 16.
53 See Chron. 23-26.
51 See Chron 15.
THE DUPLAN CORPORATION (FORSYTH DIVISION) 1037
influence an employee not to testify, as above found, I find that Respondent inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
them in Section 7 of the Act.
V. THE CONDUCT ALLEGEDLY AFFECTING ELECTION RESULTS
The issues with respect to the objections to the election held on May 3, 1962, were
set by the Regional Director's Supplemental Decision and Direction of June 5, as
narrowed at the hearing to cover only conduct occurring between February 27 and
May 3. The findings herein are confined to the issues thus raised.
I find that Respondent interrogated employees concerning their and other employ-
ees' union membership, activities, and desires, through its supervisor, William Ray
Thomas, on or about April 16, 1962,55 and through its supervisor, Willie Gabard,
on or about May 2, 1962.56
I find that Respondent threatened employees with a shutdown of the plant if the
Union came in, through its supervisor, Clifford Carter, on or about April 30, 196257
I find that Respondent, through its supervisor, Clifford Carter, on April 30, 1962,
threatened an employee with possible discharge if she acted as an observer at the
coming election and threatened that, if she lost her job, other prospective employers
would be notified of her union activities.58
Finally, I find that Respondent, through its supervisor, Clifford Carter, on April 16,
1962, requested employees' assistance in influencing other employees to vote against
the Union.59
(In the absence of its being framed as an issue in the notice of hearing, I make
no finding, in the representation case, with respect to the threat of loss of pay should
the Union's organizing campaign be successful, made by Respondent, through its
supervisor, William Ray Thomas, on or about April 16, 1962.60)
By the above-found interrogations, threat of shutdown, threat of loss of employ-
ment, threat of blacklisting, and request for an employee's antiunion assistance, I
find that Respondent tended to inhibit the free choice of the employees in casting
their ballots on May 3, 1962.
Conceding that the law is otherwise with respect to charged unfair labor practices,
counsel for Respondent strongly urges that conduct, to be valid grounds for setting
aside an election, must actually affect the voting of employees-i.e., must result in
a switch of votes attributable to the conduct.81 He considers this a case of first
impression-he has submitted no precedents-but he points to the lack of ambiguity
in the words "conduct affecting the results of the election," as found in the Board's
Rules and Regulations.62 [Emphasis supplied.]
I reject the contention. It is clearly established, by cases cited by the General
Counsel 63 and by others,64 that the actual effect, or lack of effect, of acts of inter-
ference with an election is immaterial.
VI. THE EFFECT UPON COMMERCE OF RESPONDENT'S UNFAIR LABOR PRACTICES AND
CONDUCT AFFECTING ELECTION
The activities of Respondent as set forth in sections IV and V, above, occurring
in connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
15 See Chron 15.
56 See Chron. 19 and 20
61 See Cbron 1B.
"See Cbron 18.
11 See Chron. 16.
"See Chron 15
81 In pursuance of this contention, he sought to ascertain from each employee-witness
whether the Respondent's conduct being testified to did in fact cause that employee to
vote other than was his original intention. Objections to this line of questioning were
sustained.
11 Section 102.69.
e3 Lane Drug Stores, Incorporated, 88 NLRB 584, footnote 6; American Tool Works of
Hartford, Incorporated, 102 NLRB 1143, 1149; Allied Plywood Corp, 122 NLRB 959,
961, Threads, Incorporated, 124 NLRB 968, footnote 20 of Intermediate Report, p 981
e4 For example, N.L R.B v Brown-Dunkin Company, Inc., 287 F. 2d 17 (CA 10)
Boss Manufacturing Company, 78 NLRB 538; Dixie Shirt Company, Inc., 79 NLRB 127;
Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439; American Wholesalers,
116 NLRB 1492.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
VII. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, 1
shall recommend that it be ordered to cease and desist therefrom and to take
certain affirmative action in order to effectuate the policies of the Act.
Having found that Respondent has engaged in conduct affecting the results of an
election, I shall recommend that the election be set aside and that a new election be
conducted by the Regional Director at an appropriate time.
Experience has demonstrated that in less than 25 percent of "re-run" elections
(resulting from objectionable conduct either by employers or by unions) do the
results differ from those of the original, set-aside elections.85 This could be due
to any one of a number of factors, including but not limited to (1) the possibility
that, in most cases, the results in the original election represented the actual desires
of the majority irrespective of the objectionable conduct, or (2) the possibility that,
in most cases, the harm done by the objectionable conduct has not been fully
remedied by the mere setting aside of the original election. In my recommenda-
tions, I shall seek to eliminate, to the extent possible, the second factor by making
clear to eligible voters the basis for the holding of a new election.66
Upon the basis of the foregoing factual findings and conclusions and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating employees as to their union membership, activities, and
desires, by threatening employees with a cessation of operations if the Union's
organizing campaign should be successful, by threatening employees with loss of
employment for engaging in union activities, by threatening employees with inform-
ing other prospective employers of employees' union activities, by requesting em-
ployees' assistance in influencing other employees to vote against the Union, and
by attempting to influence employees not to testify in an unfair practice hearing,
Respondent has interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a) (1)
thereof.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
5. Except for the above, Respondent has not engaged in unfair labor practices
as alleged in the complaint herein.
6 By interrogating employees as to their union membership, activities, and de-
sires, by threatening employees with a cessation of operations if the Union's organiz-
ing campaign should be successful, by threatening employees with loss of employ-
ment for engaging in union activities, by threatening employees with informing
other prospective employers of employees' union activities, and by requesting em-
ployees' assistance in influencing other employees to vote against the Union, during
the period from February 27 to May 3, 1962, Respondent rendered impossible a
free expression of the choice of its employees on the latter date.
65 Results in rerun elections :
Number
elections
set aside
Number re-
run elections
with different
results
Percentage
of changed
results
Fiscal year ending 6/30/60---------------------------- --
Fiscal year ending 6/30/61__--_
11 months ending 5/31/62--------------------------------
95
97
123
23
24
27
24 2
24 7
22
66 As an example of a Board attempt to clarify the issues for eligible voters, see Park-
chester Machine Corporation, 72 NLRB 1410, footnote 3.
THE DUPLAN CORPORATION (FORSYTH DIVISION) 1039
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case , I recommend that The Duplan Corporation (Forsyth
Division ), of Winston-Salem, North Carolina , its officers , agents, successors, and
assigns shall:
1. Cease and desist from:
(a) Interrogating employees as to their membership in, activities on behalf of,
or desires with respect to Textile Workers Union of America , AFL-CIO-CLC, or
any other labor organization.
(b) Threatening to close down the Winston-Salem plant if a labor organization
should achieve majority representation.
(c) Threatening discharges to discourage activities on behalf of a labor
organization.
(d) Threatening to inform other prospective employers of employees' union
activities.
(e) Requesting employees' assistance in influencing others to vote against a labor
organization in a representation election.
(f) Attempting to influence employees not to testify at a proceeding before the
National Labor Relations Board.
(g) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of their right to self-organization , to form labor organizations,
to join or assist any labor organization , to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , and to refrain from any and
all such activities.
2. Take the following affirmative action , which I find will effectuate the policies
of the Act:
(a) Post at its plant at Winston -Salem , North Carolina, the attached notice
marked "Appendix A." 67 Copies of such notice, to be furnished by the Regional
Director for the Eleventh Region , shall after being duly signed by an authorized
representative of Respondent , be posted immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that such notices are not altered , defaced,
or covered by any other material.
(b) Notify the Regional Director for the Eleventh Region , in writing , within 20
days from the date of receipt of this Intermediate Report , what steps Respondent
has taken to comply therewith.68
It is further recommended that the second amended consolidated complaint in
Cases Nos. 11-CA-1886 and 11-CA-1922 be dismissed in all respects other than
the above.
It is further recommended that the election held in Case No. 11-RC-1611 on
May 3, 1962, be set aside, and that a new election be conducted at such time as
the Regional Director deems that circumstances permit the employees' free choice
of a bargaining representative; and, in connection with the holding of any such new
election , that the Regional Director post , alongside each notice of said election,
a signed copy of the attached notice marked "Appendix B."
611f this Recommended Order Is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "Pursuant
to a Decree of the United States Court of Appeals, Enforcing an Order" for the words
"Pursuant to a Decision and Order."
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Eleventh Region, In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT ask our employees about .their membership, activities, or in-
terest in Textile Workers Union of America, AFL-CIO-CLC, or any other
labor organization.
WE WILL NOT threaten to close down our Winston -Salem plant if our em-
ployees select a labor organization as their bargaining agent.
WE WILL NOT threaten employees with discharge to discourage activities on
behalf of a labor organization.
WE WILL NOT threaten employees that we shall inform other prospective
employers about their union activities.
WE WILL NOT ask for employees ' assistance in influencing others to vote
against a labor organization in a representation election.
WE WILL NOT seek to influence employees not to testify at hearings before
the National Labor Relations Board.
WE WILL NOT, in any like or related manner, interfere with , restrain, or
coerce employees in the exercise of their right to organize ; to form , join, or
assist a labor organization ; to bargain collectively through a bargaining agent
chosen by themselves ; to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection ; or to refrain from
any such activities.
THE DUPLAN CORPORATION (FORSYTH DIVISION),
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1831
Nissen Building , 310 West Fourth Street , Winston-Salem , North Carolina, Telephone
Number , Park 4-8356 , if they have any question concerning this notice or com-
pliance with its provisions.
APPENDIX B
NOTICE TO ALL VOTERS
The representation election conducted on May 3, 1962 , was set aside because
certain conduct of the employer, through its supervisors , rendered impossible a
free expression of the choice of its employees on that date . The conduct included
asking employees about their union membership , activities, and desires ; threatening
a shutdown if a union was voted in; threats of discharge for union activities; threats
of ,informing other prospective employers of employees ' union activities ; and asking
employees' assistance in influencing others to vote against a union.
Now, as will be noted in the accompanying notice of election , a new election
will be held. Eligible employees are assured of their right to cast their ballots
as they see fit, free from coercive interference by any of the parties.
----------------------------
(Regional Director , 11th Region,
National Labor Relations Board)
Maxam Buffalo , Inc., d/b/a Maxam and Local 212, Retail Clerks
International Association , AFL-CIO and Maxam Niagara, Inc.,
d/b/a Maxam and Local 212, Retail Clerks International Asso-
ciation , AFL-CIO. Cases Nos. 3-CA-1809 and 3-CA-1809-2.
November 19, 1962
DECISION AND ORDER
On August 9, 1962, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
139 NLRB No. 85.