American Enka Co.

National Labor Relations Board - Board Decisions

Sep 14, 1977

231 N.L.R.B. 1335 (N.L.R.B. 1977)

AMERICAN ENKA CO.
American Enka Company, a Division of Akzona
Incorporated and Amalgamated Clothing and
Textile Workers Union, AFLCIO-CLC,1 Peti-
tioner. Case I I-RC-4097
September 14, 1977
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Regional Director for Region I I of
the National Labor Relations Board, on November
12, 1975, an election by secret ballot was conducted
on December 22 and 23, 1975, among the employees
in the stipulated unit. At the conclusion of the
election, the parties were furnished a tally of ballots
which showed that of approximately 989 eligible
voters 928 cast valid ballots, of which 516 were cast
for the Union and 387 were cast against the Union.
There were 4 void and 25 challenged ballots. The
challenged ballots are not sufficient in number to
affect the results of the election. On December 30,
1975, the Employer filed timely objections to the
election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation of
the objections and, thereafter, on March 25, 1976,
issued and served on the parties his Report on
Objections, Direction, and Notice of Hearing,
recommending that Objection 1-2, 1-6(a), 1-6(b), 1-
8, 1-10, 1-14, 1-15, 1-17, 1-19, through 1-21, and 1-
23 through 1-28; Objection 2; Objection 3-2 and 3-
4, and Objection 4 be overruled and ordering that a
hearing be held with respect to Objection 1-1, 1-3, 1-
4, 1-5, 1-7, 1-9, 1-11, 1-12, 1-16, 1-18, 1-22, 1-29
and 1-30 and Objection 3-1 and 3-3.
Thereafter, on April 9, 1976, the Employer filed
timely exceptions to the Regional Director's Report
on Objections, Direction, and Notice of Hearing and
a brief in support of its exceptions. On April 14, 1976,
the Regional Director issued an order postponing the
hearing indefinitely.
On May 28, 1976, the Board issued a Decision and
Order 2 reversing the Regional Director's findings,
conclusions, and recommendations with respect to
Objection 1-2, 1-13, 1-14, 1-17, 1-19, 1-21, and 1-
23. Accordingly, the Board expanded the scope of
the hearing recommended by the Regional Director
I The Hearing Officer granted Petitioner's motion to amend its petition
to change the name from Textile Workers Union of America. AFL-CIO
to include those sections of Objection I. The Board
sustained the Regional Director's findings with
respect to Objection 1-6(a), 1-6(b), 1-8. 1-10, 1-15,
1-20, and 1-24 through 1-28; Objection 2; and
Objection 3-2 and 3-4. The Board further ordered
that the matter be returned to the Regional Director
for Region 11 for the purpose of conducting a
hearing pursuant to his Report on Objections,
Direction, and Notice of Hearing, dated March 25,
1976, and directed the Regional Director to amend
the notice of hearing accordingly.
Pursuant to the Board's Order a hearing was held
before Hearing Officer Charles T. Corn on July 6, 7,
and 8, 1976. All parties were present and participated
in the hearing; they were afforded full opportunity to
be heard, to examine and cross-examine the witness-
es, and to present evidence bearing on the issues. On
October 12, 1976, the Hearing Officer issued and
served on the parties his report wherein he recom-
mended that the objections be overruled. Thereafter,
the Employer filed exceptions to the Hearing
Officer's report, together with a supporting brief. The
Petitioner filed an answering brief in opposition to
the Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act.
All production and maintenance employees,
including laboratory and plant clerical employees
at the Employer's Whitakers, North Carolina,
plant, excluding office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
5. The Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds that
CLC. to Amalgamated Clothing and Textile Workers Union. AFL-CIO-
CL C
2 Not reported in bound volumes of Board Decisions
231 NLRB No. 140
1335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Hearing Officer's report, pertinent portions of which
are attached hereto as an appendix, the Employer's
exceptions and brief, the Petitioner's answering brief,
and the entire record in this case, and hereby adopts
the Hearing Officer's findings,3 conclusions, and
recommendations.
The petition was filed in the name of the Textile
Workers Union of America, AFL-CIO-CLC, herein
called Textile. On June 2, 1976, Textile merged with
Amalgamated Clothing Workers of America, AFL-
CIO, herein called Amalgamated, changing the name
of both Unions to the Amalgamated Clothing and
Textile Workers Union, AFL-CIO-CLC, herein
called ACTWU. Because of this name change,
Petitioner moved at the outset of the hearing to
amend the petition to change the name of the
Petitioner. After receiving evidence concerning the
merger, the Hearing Officer found that it satisfied
pertinent standards and granted the motion to
change Petitioner's name to Amalgamated Clothing
and Textile Workers Union, AFL-CIO-CLC.
The Employer does not challenge the validity of
the merger of the two International Unions but
excepts to the Hearing Officer's ruling granting the
name change on the grounds that ACTWU is not a
successor Union to Textile and that American Enka
employees did not participate in or ratify the merger
of Amalgamated and Textile.
Under the terms of the merger agreement, neither
of the constituent Unions has been dissolved or
terminated. The merged ACTWU is a combination
and continuation of both Amalgamated and Textile.
ACTWU is governed by four general officers; two
from Amalgamated and two from Textile. The
former president and secretary-treasurer of Amalga-
mated became president and secretary-treasurer of
ACTWU, respectively. The former president and
secretary-treasurer of Textile became senior execu-
tive vice president and executive vice president,
respectively. There are 46 vice presidents; 26 from
Amalgamated and 20 from Textile. All of these vice
presidents maintain the duties they possessed prior to
the merger. The existing locals and joint boards of
Amalgamated and Textile did not merge as a result
of the merger. All members of the two constituent
organizations continue to deal with the same repre-
sentatives with whom they dealt prior to the merger.
The merger agreement provides that all properties
owned by either of the constituent Unions shall, on
the effective date of the merger, be transferred to and
vested in ACTWU. ACTWU has assumed and
agreed to be responsible for all debts, liabilities, and
:' In finding that the allegedly objectionable statements or conduct did
not interfere with the election, we rely upon the fact that, objectively
obligations of Amalgamated and Textile. All employ-
ees of Amalgamated and Textile, on the effective
date of the merger, were deemed to be employees of
ACTWU with no interruption of their employment.
Each chartered local and joint board of the constitu-
ent Unions retained its charter as of the original date
of issue and became a chartered local or joint board
of the merged organization. The agreement further
provides that the merger would not affect any
collective-bargaining agreement or certification and
that all duties, rights, privileges, and responsibilities
were automatically vested in ACTWU. All members
of both Amalgamated and Textile automatically
became members of the merged organization. Their
memberships were deemed to have begun as of the
date of their original memberships in their respective
constituent Union.
In National CarJon Company, a Division of Union
CarJide and Caron Corporation (Edgewater Works),
116 NLRB 488 (1956), the Board relied on compara-
ble factors in finding the consolidated union to be a
continuation of each of the constituent unions. The
Board noted that in the consolidation of the United
Gas, Coal, and Chemical Workers of America and
the Oil Workers International Union into the Oil,
Chemical and Atomic Workers International Union
(OCAW) earnest efforts were made "to maintain the
continuity of the constituent unions"; "[p]rovision
was made for transferring all assets and liabilities,
and for preserving representative status and contrac-
tual obligations"; "OCAW assumed the contractual
and other responsibilities of the constituent unions";
OCAW was "responsible for all the debts, liabilities,
obligations, and duties of the constituent unions";
and after the consolidation "all the assets and
liabilities of the constituent unions were merged into
single accounts in the name of OCAW, and the deeds
of all property owned by the constituent unions and
their locals were changed to the new name." In these
circumstances, the Board found "that OCAW is
acting as the alter ego of the constituent unions not
only in acquiring their assets and bargaining rights,
but also in assuming their liabilities and the responsi-
bility for carrying out their contractual obligations"
(116 NLRB at 500-501); "that the consolidated
organization was a continuance of the certified
unions"; and that OCAW "has succeeded to the
status of that organization [the Gas Workers] as the
duly designated bargaining representative of the
Respondent's employees." (116 NLRB at 502.)
Since the foregoing factors relied upon in the
National CarJon case are present here, the same
result should follow. In Lloyd A. Fry Roofing
Company, 118 NLRB 587 (1957), which involved a
considered, the statements and conduct did not have a tendency to interfere
with, coerce, or restrain the employees.
1336
AMERICAN ENKA CO.
merger of the United Paperworkers of America
(UPA) and the International Brotherhood of Paper-
makers (IBPM) into the United Papermakers and
Paperworkers (UPP), the Board pointed to virtually
identical aspects of the merger, noted specially "that
the IBPM, and not a local, was certified to represent
the employees," and concluded "that the UPP (the
consolidated group) was intended to function as a
continuation of the IBPM and UPA, its two
constituent unions, and the consolidation would
therefore not impair any of their certifications."
In deciding whether ACTWU, as the continuation
of Textile, retained the latter's representation rights,
it is also significant that the merger effected no
substantial change in the representation of Respon-
dent's employees. Pearl Book3inding Company, Inc.,
206 NLRB 834 (1973); Ocean Systems, Inc., 223
NLRB 857 (1976). In the merger, a Textile Division
of ACTWU was established and the president of
Textile became director of the Textile Division with
virtually the same authority he enjoyed as president
of Textile. Textile's field structure was maintained
intact. Textile's regions became regions of the Textile
Division. Industry divisions became divisions of the
Textile Division. Every joint board in Textile
retained the identical jurisdiction in the Textile
Division. Every local union retained its charter as a
member of the Textile Division. Moreover, there
were to be no involuntary mergers of any subordi-
nate bodies for 12 years. This preserved the identity
of locals and their relationship to their joint boards,
to their industry divisions, and to the Textile
Division.
The same personnel who had responsibilities for
servicing locals and joint boards continued to have
the same responsibilities. The same organizing
personnel employed by Textile are now employed in
the Textile Division. Thus, the representation of the
Employer's employees remains unchanged in all
meaningful respects. They are within the jurisdiction
of the Textile Division's Central North Carolina
Joint Board, the same joint board that had jurisdic-
tion prior to the merger. All their rights and
privileges are unaffected. They will elect their officers
and negotiating committee, negotiate, and ratify their
collective-bargaining agreement just as if no merger
had occurred.
Since ACTWU is the continuation of Textile and
therefore has succeeded to its representation rights,
particularly since the merger effected no change in
the day-to-day representation of the Employer's
employees, the Hearing Officer was clearly correct in
granting Petitioner's motion to change its name to
ACTWU. The Employer contends, however, that the
change in name was improper because its employees
did not participate in or ratify the merger. For the
reasons previously recounted, such participation or
ratification is not required. Nevertheless, the Em-
ployer's employees participated to the extent to
which circumstances permitted.
The representation election was held on December
22 and 23, 1975, more than 5 months before the
merged ACTWU came into existence on June 2,
1976. Nevertheless, when the Employer's employees
voted in favor of Petitioner as their collective-
bargaining representative, they were aware of the
prospective merger and presumably took this possi-
bility into account when they cast their ballots.
During the organizational campaign, employees in
the plant were advised of the merger proceedings on
many occasions. The merger was discussed prior to
the election with committees of employees, at union
meetings, and at Saturday mass meetings. The
employees voted for Textile as their representative
and Textile, of course, was represented in the merger
proceedings. No local representatives of the Employ-
er's employees were represented at the merger
convention because a charter for a local union had
not yet been issued. This was because their bargain-
ing representative had not yet been certified. Under
Textile's constitution, representation at the conven-
tion required the existence of a local union.
Shortly after the merger became effective, however,
Petitioner desired to provide an opportunity for the
Employer's employees to consider the merger and
requested the Employer to furnish it with a current
list of the names and addresses of the bargaining unit
employees. After this request was ignored, Petitioner
prepared a leaflet for distribution to all employees in
the unit. The leaflet was accompanied by a special
edition of "Textile Labor," a union publication,
which contained all merger documents. The leaflet
described the merger and announced two meetings
on June 29 to provide all employees in the unit an
opportunity to attend, to ask questions about and
discuss the merger, and to vote their approval or
disapproval. Distribution of the leaflet and "Textile
Labor" commenced on June 22 and continued on
June 23 and 24 to make certain they were received by
employees on all shifts. As previously noted, the
merger of the two International Unions did not
affect representation at the local level and compara-
tively few unit employees attended the meetings.
Those who did attend voted unanimously by secret
ballot in favor of the merger. We therefore find
without merit Employer's exception to Petitioner's
change of name to ACTWU based on the contention
that its employees did not participate in or ratify the
merger.
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of valid ballots
have been cast for Textile Workers Union of
America, AFL-CIO-CLC, now known as Amalga-
mated Clothing and Textile Workers Union, AFL-
CIO-CLC, and that, pursuant to Section 9(a) of the
National Labor Relations Act, as amended, said
Amalgamated Clothing and Textile Workers Union,
AFL-CIO-CLC, is the exclusive representative of all
the employees in the following appropriate unit for
the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other
conditions of employment:
All production and maintenance employees,
including laboratory and plant clerical employees
at the Employer's Whitakers, North Carolina,
plant, excluding office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
APPENDIX
REPORT ON OBJECTIONS
Pursuant to the Regional Director's Amended Notice of
Hearing and Notice Rescheduling Hearing, a hearing was
held on July 6, 7 and 8, 1976, at the Commissioner's Room,
County Courthouse, Nashville, North Carolina, before the
undersigned Hearing Officer, duly designated for that
purpose. All parties were present and participated in the
hearing; they were afforded full opportunity to be heard, to
examine and cross-examine the witnesses, to present any
and all evidence bearing on the issues.3
Upon the entire record of the case and from the
observation of the witnesses, the undersigned makes the
following: 4
The Employer's Objections are as outlined below:
Objection 1-1: On or about December 18-20, Lorenzo
Battle, a maintenance employee, and Petitioner agent,
approached an employee who was wearing a "Vote No"
sticker. Battle allegedly told the employee, "You don't
know what you are doing." When the employee replied
that she had made up her mind, Battle allegedly made a
fist, shook it at the employee and said, "What hospital do
you want to be carried to?"
OJjection 1-2. During the week of the election, Wendell
Sanders, an employee and member of Petitioner's in-plant
organizing committee, told an employee that she had better
take off her "Vote No" sticker and throw it away.
OJjection 1-3. During the week preceding the election a
pro-Petitioner employee with alleged violent propensities,
allegedly told another employee: "You are not going to
work with me and wear that 'Vote No' sticker,"
:' Both parties filed briefs with the Hearing Officer.
In evaluating the credibility of the witnesses, the undersigned has
considered their general demeanor, closely observed while testifying under
oath,. partisan interest, guarded or indirect answers, conclusional and
conflicting testimony as distinguished from fact. self-serving answers.
OJjection 1-4: Several days prior to the election, an
unidentified Petitioner organizer, who was passing out
handbills at the plant gate, shook his fist in a menacing
manner at the witness when the witness refused to stop and
take a copy of the Petitioner's handout.
OJjection 1-5: During the week preceding the election, a
pro-Union employee confronted another employee who
was wearing a "Vote No" sign around his neck and
allegedly said, "You will never know where the devil
is. .... He could step up behind you, grab that sign, and
choke you to death."
OJjection 1-7: Several days before the election, Union
Agent James Williams started to rip off the employee's
"Vote No" button.
OJjection 1-9.: An Employer witness, who campaigned
against Petitioner, asserts that several days before the
election his mailbox was blown up at night.
OJjection 1-11: Several days before the election, an
employee allegedly received a phone call from an anony-
mous male caller who allegedly said she must vote for the
Union. The witness further stated that the telephone call
"scared her to death."
OJjection 1-12: Several days before the election, one
employee allegedly told another employees that she could
not get a ride home in her regular car pool unless she took
off her "Vote No" button and that the button "will only
cause trouble."
OJjection 1-13: Evans Hamilton, a Petitioner organizer,
and another unknown organizer, visited an employee's
home while she was trying to wash dishes. Hamilton
allegedly put his hands in the dish water and repeatedly
rubbed the employee's hands.
OJjeclion 1-14: Employee allegedly asserted that she
overheard a union adherent tell another employee, "I'll
kick your ass if you don't vote for the Union."
OJjection 1-16: On December 19, 1975, Employer
witness allegedly observed a member of the in-plant
organizing committee carrying a gun in his back pocket.
The incident was allegedly investigated, but the gun was
disposed of before the sheriff arrived.
OJjection 1-17: Employer witnesses allegedly assert that
several days before the election, a member of the in-plant
organizing committee (no name given) told an employee
that "You better take it (a "Vote No" sticker) off."
OJjection 1-18: An Employer witness allegedly asserts
that on or about October 23, 1975, Johnny Powell, a
terminated employee of the Employer, and an employee of
the Petitioner, said that he knew that Ann Harris and
Bernice Norman were the ones who told on him and got
him fired. That he was going to see Bernice.
Objection 1-19: Employer witnesses allegedly attest that
an employee who campaigned for the Petitioner and visited
employees' homes told them that "Anybody who don't
vote for the Union will get run off if the Union wins the
election."
03jection 1-21: Employer witness allegedly relates that
Petitioner organizers said that "Any non-union member
leading questions of counsel, attitude and apparent memory and recall for
details. Other criteria utilized by the hearing officer, bearing on credibility
resolutions, may from time to time hereafter be discussed with respect to
individual witnesses. When credibility issues arise. however, the credited
version may be indicated without further reference to the standards applied.
1338
AMERICAN ENKA CO.
will be let go after the Union wins the election, so you
might as well join the Union."
OJjection 1-22: An Employer witness allegedly states
that on or about December 16, 1975, an unknown
Petitioner representative came to the house. He allegedly
"almost forced or tried to force her to sign the card."
O0jection 1-23: An Employer witness allegedly asserts
she was visited by Johnny Powell and Evans Hamilton,
both alleged agents of the Petitioner, who asked her to sign
a card. When she refused, they allegedly told her to put it
under her pillow, that someone might come to her during
the night and she might want to sign it.
OJjection 1-29: Employer witness allegedly states that
several days before the election, a pro-Petitioner employee
attempted to physically tear off a "Vote No" sticker from
her chest in the employees' cafeteria.
OJjeclion 1-30. An Employer witness allegedly relates
that several days before the election, he was threatened for
wearing a "Vote No" sticker.
OJjection 3-1: An Employer witness allegedly attests that
on or about December 1, 1975, she was visited at her home
by Petitioner organizers John Kissack, Jesse Pryor, and
Jesse Rudd. Kissack allegedly asked her why she had not
attended a union meeting or signed a card. The witness
allegedly replied that she was not interested in the Union.
Kissack then allegedly asked her if the company had
threatened her, to which she allegedly replied no. Kissack
then said, according to the witness, that a lot of employees
had been brainwashed and had changed their minds about
the Union. He then allegedly stated, "It seems like the
white niggers in the plant have brainwashed you black
people."
OJjection 3-3: Employer witnesses will state that at the
NLRB representation hearing on November 11, 1975,
Evans Hamilton allegedly stated: "Don't be afraid of the
whities - come into the hearing."
FINDINGS OF FACT
OJjection 1-1: Employer witness Geraldine Taylor
testified that one day as she was walking into the cafeteria,
employee Lorenzo Battle was walking out. Battle said,
"Look at her, she has on a 'Vote No' button. She doesn't
even know what it means." Taylor said, "Yes, I do know
what it means. It means that I made my decision and I'm
letting everybody know how I feel." Taylor then said,
"Would you like for me to go and get one and put it on so
that you will know how everybody feels and it will tell us
how you feel?" Battle then said, "Which hospital do you
want to go to, Nash General?" Taylor testified that the
only person she told about this conversation was her
supervisor and she did not take the statement as a threat.
Battle was laughing when he made the statement. No date
was testified to as to when this event took place.
I fail to see where the conduct complained of is coercive
in any way. Taylor did not consider this statement to be
threatening. This is at most lively banter between two
employees of opposing views. Therefore, it is the opinion of
the undersigned that Objection I-1 does not raise material
or substantial issues which would warrant setting aside the
election and I recommend Objection 1-I be overruled.
OJjection 1-2: Employer witness Bonnie Wells testified
that approximately one day prior to the election,5 she
commenced wearing a "Vote No" sticker on her clothing.
As Wells was leaving her work area going on a break,
employee Wendell Sanders stopped her and said, "You'd
better take that sticker off." Wells ignored him and
proceeded on her break. Sanders had on TWUA tee shirt
and a big TWUA button. Wells told her husband, who is
supervisor of the electrical department, and employee
Zenith Rolley about the conversation. Wells continued to
wear the sticker after the incident.
Again, at most this was passing comments between two
rank and file employees of opposing views. No evidence
was submitted that shows this statement was made in any
threatening manner. Therefore, it is the opinion of the
undersigned that the conduct complained of does not fall
within the category of objectionable conduct which would
warrant setting aside of the election and I recommend
Objection 1-2 be overruled.
OJjection 1-3: Employer witness Vertica Richardson
testified that in the month or two preceding the election,
she had a conversation with employee Jean King while she
was wearing a "Vote No" sticker. King said, "Well, pull the
sticker off before somebody whips your ass out there. Some
of the men are going to whip your ass I hear." King said,
"I'm not going to work back here with you wearing that
sticker because the men out there on the floor will whip
your ass." Richardson then removed the "Vote No"
sticker. Richardson further testified that one of the male
employees, identity unknown, told her to pull her "Vote
No" sticker off. In another conversation, with other
unknown employees, one said, "Well, everybody that joins
the Union, the Union people will keep their jobs and you
will be the first one to be laid off."
The Board has long held that threats of loss of jobs made
by one rank and file employee to another is capable of
evaluation and cannot be reasonably held to be coercive.
Such is the case here. Therefore, I find Objection 1-3 to be
without merit and recommend it be overruled.
OJjection 1-4: Employer witness Evelyn Martin testified
that on an unspecified date, as she was leaving the plant,
union representatives were passing out leaflets at the gate.
When she got abreast of them, one of the representatives
offered her a leaflet and she told the representative that she
didn't want to clutter up the car with "that junk." The
representative said, "Well, you're just as stupid as he is."
Martin identified the representative as being Evans
Hamilton. Martin further testified that on another occasion
as she was leaving work, a union representative shook his
fist at her because she did not take a leaflet. Martin
identified this representative as being John Kissack.
Representative Kissack testified that he could not recall the
incident and that he did not believe he did it.
Even assuming, arguendo, the incident occurred as
alleged, no evidence was adduced that shows this incident
in any way deterred Martin or any other employee in the
exercise of their franchise at the polls. Therefore, the
Election held on December 22 and 23. 1975.
1339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct complained of is insufficient to set aside the
election and I recommend to the Board that Objection 1-4
be overruled.
OJjection 1-5: Employer witness Jesse Vernon Moseley
testified about a week prior to the election, he wore a "Vote
No" sign around his neck attached to a cord. About three
days prior to the election, employee Jessie Petway came up
to him, pointed his finger at the sign and said, "You had
better be careful when you go out the door tonight, you
might get choked. You never know where the devil is
standing." Moseley testified that he did not tell anyone else
about this incident. On cross-examination, Moseley testi-
fied that he did not know if Petway was for or against the
Union and he did not see Petway wearing any union
buttons or pins.
No evidence was adduced that shows Petway was a
union adherent. In no way can I construe this statement as
a threat or in any way coercive. Therefore, Objection 1-5 is
without merit and I recommend it be overruled.
OJjection 1-7: Employer witness Susie Irene McGee
testified that approximately one week prior to the election,
she started wearing a "Vote No" sticker on her clothing.
One day while at work, employee James Williams came up
to her and pulled her "Vote No" sticker about halfway off.
McGee asked Williams not to, saying, "You wear your
own sticker, and I don't bother yours, and so you don't
have no reason to pull mine off." Williams was wearing a
union pin at that time. Williams didn't say anything else to
her and the two continued to work side by side. On cross-
examination, McGee testified that she and Williams were
friends and that she continued to wear her "Vote No"
badge.
The evidence fails to show that this incident was coercive
in any manner and in that context, it does not fall in the
category of objectionable conduct which would warrant
setting aside the election, and, therefore, I recommend to
the Board that Objection 1-7 be overruled.
Objection 1-9: Employer witness Robert Richardson
testified that a couple of weeks prior to the election, he
commenced wearing a "Vote No" sticker. During this time,
his mailbox, at his house, was blown up. Richardson did
not have any information as to how the mailbox got blown
up, or who may have been responsible for it.
Inasmuch as no evidence was presented that shows the
Petitioner was in any way responsible for the incident, I
recommend to the Board that this objection be overruled.
OJjection 1-11: Employer did not introduce any evi-
dence to support his objection. Therefore, the undersigned
recommends to the Board that Objection 1-1l be over-
ruled.
OJjection 1-12: Employer witness Betty Whitaker testi-
fied that prior to the election, another employee, Mabel
Whitaker, told her, on one occasion, she would not carry
her to work any longer because Mabel had heard that Betty
was telling everyone who had signed union cards. Mabel
Whitaker told Betty Whitaker that she did not care
whether Betty voted for or against the Union. Mabel
Whitaker continued to carry Betty to work. Betty Whitaker
did not wear a "Vote No" sticker.
I see this kind of incident as nothing more than idle
chatter between employees concerning plant gossip. Cer-
tainly there is nothing here that remotely suggests conduct
on which an election should be set aside. Therefore, I
recommend to the Board that Objection 1-12 be overruled.
Objections 1-13 and 1-23: Joyce Armstrong testified that
during the union campaign, she was visited on several
occasions by union supporters and representatives. The
first visit was by employee Johnny Powell and another
"union" man, name unknown. They talked to her about
joining the union. Powell asked Armstrong why she
wouldn't vote for the Union and Armstrong told him that
she had her reasons. Powell then gave her the card and
said, "Put it under your pillow and sleep on it and if you
want a union in, sign a card." Armstrong told her
supervisor about this meeting and asked him if he could
stop them from coming out to to her house. She testified
that the visit didn't worry her, but she just didn't like these
visits.
On another occasion, these two individuals again visited
Armstrong along with a "new" man. Armstrong testified
that at this time, Powell had been discharged. Armstrong
was outside washing clothes when the individuals arrived.
One of the men put his hand in the wash water and
touched her fingers and said, "The water feels real nice."
Armstrong told him to get his hand out of the water and
when he did not, she threw water on his trousers.
Armstrong told her supervisor about this meeting.
On cross-examination, Armstrong testified that there
were pictures all over the plant bulletin boards pertaining
to strikes. At no time during Armstrong's testimony did she
describe any of the individuals who visited her home as
being Union Representative Evans Hamilton. It should
also be noted, that during her testimony, Evans Hamilton
was in the courtroom and she did not identify him.
There is no misconduct of any kind indicated by the
testimony of this witness. Therefore, I recommend that
Objections 1-13 and 1-23 be overruled.
OJjection 1-14: Employer witness Walter Little testified
that on or about December I, 1975, he was in the
breakroom and observed employee Edgar Cooper placing
some union literature on a table. Cooper asked Little how
he felt about the Union. Little said he did not feel too good
about it. Cooper asked Little what he meant. Little said,
"Because they is taking money away from me and not
giving me none." Cooper then said, "Well, anybody I find
that don't want to vote for the Union is going to have a
whole lot of ass-kicking going on." No other employees
heard this conversation. Little did relate this incident to
employee Estelle Knight. 6 Little further testified that he
observed Cooper passing out handbills at the plant gate
and acting as an observer at the election.
On cross-examination, Little testified that Cooper's
remark did not frighten him and he did not report this
incident to his supervisor until after the election and only
then when asked by Counsel.
Again the conduct complained of is nothing more than
virgorous campaigning and discussion that normally takes
place in an industrial plant during the "heat of battle"
*; Estelle Knight testified that Little told her about the conversation.
1340
AMERICAN ENKA CO.
leading up to an election. I don't view this statement as
being coercive and no evidence was adduced to show that
this statement, in any way, deterred Little or any other
employee from casting a ballot in the election or in any
way affected their choice.
Therefore, I recommend to the Board that Objection 1-
14 be overruled.
OJjection 1-16: Employer witness Tommy Connor,
supervisor of the dye department, testified that on or about
December 19, 1975, about 10:00 p. m., one of his
employees, Jane Richardson. 7 told him she had seen a gun
in employee Willie B. Evans' back pocket. Connor called
his supervisor, Mike Davis, and told him what had been
reported. Davis told Connor to take a look for himself and
be sure that Evans had a gun. Connor went to his office
and Evans was sitting on the desk. Connor observed
something in Evans' left back pocket. It was a gun wrapped
in a handkerchief. Connor then called Davis again. Davis
told Connor to call Supervisors Stewart and Harmon. After
calling Stewart and Harmon, Connor went back to his
office to see if Evans still had the gun in his pocket. Connor
alleges that Evans did. Evans then went into the warehouse
and started to work. There was an empty box sitting beside
the door and Connor was looking out the window when
Evans walked over to the box. Evans had two cardboard
separators in his hand. He put one of the separators down
in the box and held the other separator between himself
and Connor. Evans took something out of his pocket and
put it in the box. Evans then took the other separator, put it
in the box, and then sat another empty box on top of the
first one. Evans then returned to the office. In the
meantime, Connor went upstairs so he could see the box
more plainly without Evans seeing him, and as he was
looking at the box, one of his other employees walked up to
the box and looked inside. She looked at still another
employee and smiled. This third employee walked over to
the box, got a broom and started sweeping the floor.
Connor then called Quality Control Supervisor Davis
again, told him what happened, and Davis instructed
Connor to get Evans in the office, stating that he would be
there shortly with a sheriff to search Evans. Connor called
Evans into the office and the two sat and talked until Davis
and the sheriffs deputy arrived. Upon the arrival of Davis
and the deputy, Connor told Evans that it had been
reported to him that Evans had a gun in his pocket. The
deputy asked Evans if he had one and Evans replied no.
The deputy then asked Evans if he could search him. The
deputy searched Evans and found only a large knife. Upon
instructions from Davis, Connor checked the boxes
previously alluded to but found no weapon.
On cross-examination, Connor admitted that neither he
nor the sheriffs deputy found a gun and testified that what
he actually saw was a butt of a gun in Evans' back pocket.
Connor admitted the deputy did not arrest Evans nor did
the company discipline him for the alleged incident.
The incident complained of in this objection is obviously
unrelated to the organizing campaign and there is no
evidence that this incident, in any way, affected the results
7 Jane Richardson testified that while in the office with Willie B. Evans,
she saw what she believed to be a pistol handle in Evans' back pocket. She
reported this to Supervisor Tommy Connor.
of the election. Therefore, I recommend to the Board that
Objection I-16 be overruled.
OJjection 1-17: Employer witness Evelyn Harvey testi-
fied that approximately one month prior to the election,
she began wearing a "Vote No" button. One day while she
was standing near her work station waiting for the bell to
ring for work to start, a man came by and said, "You'd
better take that 'Vote No' button off." Harvey turned and
said, "What?" The man said, "You'd better take that 'Vote
No' button off." Harvey asked, "Why?" The man said,
"Because you might get a brick upside your head or in your
car." This individual kept on walking. Harvey turned to
employee David O'Neal, who was standing beside her, and
asked O'Neal if the man was joking. O'Neal allegedly said,
"I don't think so." The only other person Harvey told
about this was her supervisor. Harvey did not know
whether this individual was wearing a union button or tag.
After this incident, Harvey ceased to wear her "Vote No"
pin. Harvey could not ifentify this individual.
It is unfortunate that this type of a statement is made in
the heat of an organizational campaign by misguided and
overzealous individuals. However, in this case there is no
evidence that the individual making the statement was in
any way connected with the Petitioner and no evidence
that the statement was communicated to other employees.
The undersigned is of the opinion that this threat by one
rank and file employee to another is insufficient to set aside
the election, and, therefore, recommends to the Board that
Objection 1-17 be overruled.
OJjection 1-18. Employer witness Ethel Mae Powell
testified that she was visited at her home by union adherent
Johnny Powell after his discharges on three different
occasions. On one of the visits, Johnny asked Ethel, "What
did Bernice Norman say?" and Ethel said, "I don't know
what she said." Johnny then said to tell Norman that she
got him fired and that he was glad because he was working
for the Union, and they would get his job back.
The testimony given by this witness does not indicate
any threats or coercion. Therefore, it is insufficient as a
basis to set aside the election and I recommend to the
Board that Objection 1-18 be overruled.
O)jection 1-19: Employer witness Ellen Tofton testified
that sometime in November or December 1975, she had a
conversation with employee James Wilkins. Wilkins said,
"The Union was coming in there, that if I didn't vote for it,
the Union would eventually get rid of me." Wilkins was not
wearing a union button when this statement was made nor
had she ever seen him wear any buttons. Wilkins did not
tell Tofton that he was working for the Union.
On cross-examination, Tofton testified that she had
received a letter from the Employer or saw a letter on the
Employer's bulletin board to all employees stating all
employees would receive the same privileges, and would be
treated the same whether they were for or against the
Union.
Employer witness Norma Carol Crawley testified she
had a conversation with Ellen Tofton concerning Tofton's
conversation with employee James Wilkins. Tofton stated
that Wilkins had told her that she should sign a union card
s The record reflects that Powell was discharged on October 20, 1975.
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because if she didn't, she would lose her job and when they
got in, they would do away with her.
This type of comment between rank and file employees
can be evaluated by the individuals and in this case,
assurances were given that all employees would be treated
equally. Therefore, I recommend to the Board that
Objection 1-19 be overruled.
OJjection 1-21: Employer witness Vertica Richardson
testified that in group conversations, with other employees,
she was told that the Union was coming in and that she
might as well vote for it. She was also told, "Well,
everybody that joins the Union, the Union people keeps
their jobs and you will be the first one to get laid off."
Richardson couldn't recall which employee made this
statement, as there were several people in the group. She
was able to recall one or two names but could not identify
these two people as the one making the alleged statement.
She did say some of these people wore union buttons.
Again these types of statements can be evaluated and in
light of Employer's assurance that all employees would be
treated equally, I am of the opinion that these comments
are insufficient to set aside the election and I recommend
to the Board that Objection 1-21 be overruled.
OJjection 1-22: The Employer presented no evidence to
sustain this objection. Therefore, it is without merit and I
recommend to the Board it be overruled.
OJjection 1-29: Employer witness Amber Hasty testified
that during the union campaign, she wore a "Vote No"
sticker on her clothing. A male employee asked, "What did
I think that I was doing wearing a 'Vote No' sticker," and I
told him "that it was because of what I thought, and the
way I felt, that he had a right to his opinion, and that I had
a right to mine." The man then asked Hasty, "How did I
feel about him trying to take it off," and I told him that "I
didn't think that he ought to try." The man reached for her
but she stepped back and walked on back to her work
station. The man didn't say anthing further to her and she
did not identify him. This occurred about a week prior to
the election. Hasty continued to wear her "Vote No"
sticker.
There is no evidence that this remark, in any way,
interfered with or coerced Hasty inasmuch as she contin-
ued to wear her "Vote No" sticker. Therefore, the
undersigned is of the opinion that this remark is insuffi-
cient to set aside the election and recommends to the
Board that Objection 1-29 be overruled.
Objection 1-30. Employer introduced no evidence to
sustain this objection. Therefore, Objection 1-30 is without
merit and I recommend to the Board it be overruled.
Ofjection 3-1: Employer witness Patricia Phillips testi-
fied that during the campaign, she was visited, on two
different occasions, by individuals on behalf of the Union.
The first time it was a man by himself, whom she could not
identify. On the second visit, three people appeared at her
home. The three were black and two of them were
employees, Jesse Rudd and Jesse Pryor. Rudd told her they
wanted to sit down, talk for awhile and explain things to
her. They wanted to know why she hadn't been to the
meetings and stated they had tried to talk to her at the
plant but she wouldn't talk to them so they felt that they
could talk to her better at her home. They gave her some
literature and Jesse Pryor asked her how long she had been
at the plant and she told him she had just been promoted to
a new job and the three said that the only reason she got
promoted was because the company didn't want the union
in. The company had given her the job so she wouldn't vote
for the Union. Jesse Pryor said there had been several
promotions given to blacks and it was because the majority
were black and if the Union could get the blacks to vote for
the Union, then of course the Union would win. Pryor
further said that the only reason the promotions were given
was so that the blacks would be "white folks' niggers" or
something like that. Phillips testified this racial slur was
used several times by both Pryor and Rudd, but she could
not recall whether the third man used the term or not. The
third black man said that he was working with the Union.
On cross-examination, Phillips testified that both Pryor
and Rudd were rank-and-file employees and had been
employed by the Employer long before the union campaign
started. Phillips admitted having conversations with both
Pryor and Rudd in the plant prior to the union campagin
and testified that one of them was a neighbor. She further
admitted that she heard the term "white folks' nigger" used
before.
I note here there were other references to the words
"white folks' nigger" and "whities" in the record. I further
note that the record reveals that a majority of the
employees are black. What is in issue here is not the use of
the terms per se but whether or not an appeal to racial
prejudice was injected into the campaign. On the basis of
the evidence before me, I think not.
There is no evidence that the Petitioner interjected into
the campaign propaganda designed to infame racial
prejudice. If that was the case, the rationale of the Board in
Sewell Manufacturing Co., 138 NLRB 66, would apply and
would be grounds for setting aside the election. I view these
statements as being isolated and on the basis of the entire
record, I am of the opinion that he conduct complained of
is not sufficient to set aside the election. Therefore, I
recommend to the Board that Objection 3-I be overruled.
Objection 3-3: Employer witness Production Manager
Phil McBride testified that on the morning of the
representation case hearing, he arrived at the site of the
hearing, the National Guard Armory, early. Some other
cars were there. About this time, Union Representatives
Hamilton and Kissack came up and went inside for a few
minutes. Representative Hamilton then came out the door
and waved at somebody. McBride looked around. Hamil-
ton must have been waving at some people that were
coming to the hearing and Hamilton said something to the
effect, "Don't worry about the license plates out here." and
motioned something else and came up a little closer to
where he was sitting in the car with Personnel Manager
Horne and Winding Department Supervisor Snellgrove.
McBride couldn't hear exactly what Hamilton said, but as
Hamilton got closer, Hamilton said something to the effect,
"Come on in, don't let these 'whities' scare you." Hamilton
then walked on by the three, sitting in the car, and went on
back to where the other cars were parked. Hamilton said
something else but McBride could not make out what was
said. McBride testified they were parked in about the
second or third parking space before you walked up to the
1342
AMERICAN ENKA CO.
front of the Armory and Hamilton had to walk between his
car and another car to get to where the employees were
parking. He and the other two were sitting in the car with
the windows rolled down. Hamilton was no more than 10
or 15 feet away when he made the statement about the
license plates and "whities."
On cross-examination, McBride testified Hamilton was
on his way back out the front door, waving his arms,
"Come on" to the folks in the parking lot. McBride did not
recall any whites being in the group that Hamilton was
waving toward. McBride denied that Hamilton said,
"Don't be afraid of the wheels." McBride admitted that
there were blacks, Indians and at least one white employee
present at the R case hearing.
Representative Hamilton testified upon arriving at the
Armory for the Representation Case Hearing, there were a
couple of cars of people already there. Hamilton asked one
of the employees who was with him, who the people in the
cars were and this individual said, "that's wheels, wheels at
the plant." Hamilton proceeded into the building and then
went back outside and waved at the employees in the
parking lot to come on in. They didn't hear or see
Hamilton, so he walked further into the parking lot and
said, "Come on down, don't be afraid of the wheels."
Hamilton denied using the term "whitie" but testified he
refers to most bossmen as being "wheels." Hamilton
further denied that he uses racial slurs.
The Employer did not call Personnel Manager Horne or
Winding Department Supervisor Snellgrove to corroborate
McBride's testimony.
McBride testified that Hamilton said "something to the
effect," "Come on in, don't let the 'whities' scare you."
From this statement, I conclude that McBride was not
certain what Hamilton said. As I said earlier in this Report,
there is no evidence that the Petitioner injected or
attempted to inject racial prejudice as an issue into the
campaign. I find Hamilton's version of what was said to be
the more plausible one in light of no corroboration of
witnesses who were present and available to the Employer.
Therefore, the evidence submitted is not sufficient to set
aside the election and I recommend to the Board that
Objection 3-3 be overruled.
The Employer advanced the theory that the active union
supporters and more particularly, the In-Plant Organizing
Committee members, were agents of the Petitioner, and,
therefore, the Petitioner is responsible for their actions.
Under the facts of this case, I do not agree. No evidence
" The Great A/an li & Pacific Tea Company. 177 NLRB 942,
"' The LiJeral Market. Inc., 108 NLRB 1481. 1482.
was presented or adduced that would tend to show that the
Petitioner either authorized or condoned the acts alleged.
The Board was held that even where an employee is the
prime mover and principal organizer for the Union, the
Union would not be held responsible for threats made by
those adherents. Bujkor-Pelzner Division, Inc., 197 NLRB
950; Bronze Alloys Company, 120 NLRB 682: and Dixon
DistriJuring Co., Inc., 204 NLRB 1155.
The Employer also advanced the theory of "fear and
confusion" that was created by the acts of the union
adherents and "agents" and argued that the evidence
presented was sufficient to show that the "laboratory
conditions" were destroyed, and, therefore, a new election
should be directed.
For conduct to warrant setting aside of an election, not
only must that conduct be coercive, but it must be so
related to the election as to have had a probable effect
upon the employees' actions at the polls.9
The Board, while attempting to establish ideal election
conditions insofar as possible, acknowledges that actual
facts must be considered in light of realistic standards of
human conduct, and that elections must be appraised
realistically and practically,10 and should not be judged
against theoretically ideal, but nevertheless, artificial
standards of human conduct. It is not unmindful of the fact
that the "laboratory" for election purposes is usually in
industrial plants where vigorous campaigning and discus-
sion normally takes place, and where isolated deviations
from desired standards will sometimes arise notwithstand-
ing the best directed efforts to prevent their occurence."
Accordingly, the Board has not overturned the results of
elections where it was found that irregularities were not of
such nature as would have tended to make a free election
improbable.
CONCLUSIONS AND RECOMMENDATIONS
Having made findings of fact and conclusions based
upon all the credible evidence presented during the
hearing, I conclude and find that Employer's Objections I1-
1, 1-2, 1-3, 1-4, 1-5, 1-7, 1-9, 1-11, 1-12, 1-13, 1-14, 1-16,
1-17, 1-18, 1-19, 1-21, 1-22, 1-23, 1-29, 1-30 and
Employer's Objections 3-1 and 3-3, are insufficient to raise
material or substantial issues affecting the results of the
election and recommend to the Board that said objections
be overruled and a Certification of Representative issue.
11 Morganton Full Fashioned Hosierv Co.. etc., 107 NlRB 1534. 138.
1343