NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Narricot Industries, L.P. and United Brotherhood of Carpenters and Joiners of
January 30, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On May 6, 2008, Administrative Law Judge Margaret G. Brakebusch issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief.1
The National Labor Relations Board2
has considered the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions, as modified herein,
and to adopt the recommended Order as modified. As discussed below, we agree
with the judge that the Respondent violated Section 8(a)(5) of the Act by
withdrawing recognition from the
i. withdrawal
of recognition
As fully described in the judge’s decision, the Respondent
withdrew recognition of the Charging Party Union as exclusive bargaining
representative of a two-facility unit of production and maintenance
employees. The withdrawal of
recognition, effective on the October 2, 2007 termination date of the parties’
last collective-bargaining agreement, was based on the Respondent’s receipt of a decertification petition
signed by a majority of bargaining unit employees.
In an unfair labor practice proceeding challenging a
withdrawal of recognition from an incumbent bargaining representative, the
employer is required “to prove by a preponderance of the evidence that the
union had, in fact, lost majority support at the time the employer withdrew
recognition.” Levitz Furniture Co., 333 NLRB 717, 725 (2001). Here, the Respondent relied solely on the
decertification petition as objective proof of the
As detailed by
the judge, both Human Resource Manager Kris Potter
and Supervisor Eric Hayes actively participated in the decertification
process. After employee Henry Vaughn
asked for information about how to oust the
This conduct is sufficient proof that the Respondent’s officials provided more than the permissible “ministerial
aid” in the initiation and circulation of the decertification petition.9 The
Respondent’s conduct was “aimed specifically at causing employee disaffection
with their union.” See Hearst Corp., 281 NLRB 764, 764–765
(1986), affd. mem. 837 F.2d 1088 (5th Cir. 1988). The petition was therefore tainted, and the
Respondent could not lawfully rely on it as evidence of the
The Respondent contends that the judge should have
considered other evidence (an alleged decline in union membership, alleged
vacancies in steward positions, the claim that union membership was
concentrated among certain groups of employees, and testimony that an unspecified
number of employees discussed removal of the Union), which showed that
employees’ disaffection with the Union began before the Respondent engaged in
the conduct found to have constituted unlawful assistance to the
decertification effort. We
disagree. The Board has not found that
this type of evidence, even if considered collectively, would be sufficient as
objective proof of a union’s loss of majority support. Furthermore, as previously stated, the
Respondent did not rely on any of this evidence when it withdrew recognition.10 We therefore conclude that the Respondent violated Section 8(a)(5)
and (1) of the Act by withdrawing recognition from, and failing and refusing to
bargain with, the
ii. the
affirmative bargaining order
The
judge recommended that the Respondent be required to recognize and bargain in
good faith with the
1. An affirmative bargaining order in this case vindicates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Respondent’s withdrawal of recognition. An affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation, as the duration of the order is no longer than is reasonably necessary to remedy the ill effects of the violation.
Moreover, we note that the Respondent committed unfair
labor practices both before and after its unlawful withdrawal of recognition
that manifested its disregard for employees’ Section 7 rights. Prior to the withdrawal of recognition, the
Respondent solicited employees to withdraw from union membership and to revoke
their dues checkoff, it provided unlawful assistance in the initiation and
circulation of the decertification petition, and it promised a wage increase if
the
2. An affirmative bargaining
order also serves the Act’s policies of fostering meaningful collective bargaining
and industrial peace. It removes the
Respondent’s incentive to delay bargaining or to engage in any other conduct
designed to further discourage support for the
3. As an alternative remedy, a cease-and-desist order alone, without a temporary decertification bar, would be inadequate to remedy the Respondent’s withdrawal of recognition and refusal to bargain with the Union because it would allow another challenge to the Union’s majority status before the employees had a reasonable time to regroup and bargain with the Respondent through their chosen representative in an effort to reach a collective-bargaining agreement.13 Indeed, permitting a decertification petition to be filed immediately might very well allow the Respondent to profit from its own unlawful conduct. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union representation.
For all the foregoing reasons, we find that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the violation in this case.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Narricot
Industries, L.P.,
1. Substitute the following for paragraph 1(a).
“(a)
Promising its employees increased wages if they remove the
2. Substitute the attached notice for that of
the administrative law judge.
Dated,
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We
will not promise our employees increased wages if they remove the
We
will not unlawfully assist employees in their attempt to remove the
Union by soliciting employees to sign a petition to remove the
We will not unlawfully solicit our employees to resign their union membership or their authorization for dues deduction.
We will not refuse to recognize or to bargain with United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council, Local No. 2316 as the exclusive bargaining representative of our employees in the following appropriate unit:
All production, maintenance, and plant
clerical employees employed at Respondent’s
We will not unilaterally change wages and benefits for our bargaining unit employees without first notifying their exclusive collective-bargaining representative and affording it a reasonable opportunity to bargain about the decision to increase wages and employee benefits and its effects on employees.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will recognize and, upon request, bargain in good faith with the United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council, Local No. 2316 as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit set forth above regarding wages, hours, and other terms and conditions of employment, and, if an understanding is reached, reduce the agreement to writing and sign it.
We will, upon the request of the Union, rescind any or all unilateral changes to unit employees’ wages, holidays, overtime premiums, health and welfare benefit plans, and other terms and conditions or employment unless and until the parties bargain in good faith to an agreement or lawful impasse concerning any proposed changes thereto.
We will make whole, with interest, our bargaining unit employees for any loss of wages or loss of benefits they may have suffered due to our unilateral changes in wages and benefits.
Narricot Industries, L.P.
Jasper C. Brown Jr., Esq., for the General Counsel.
James M. Powell, Esq. and J. Mark Sampson, Esq., for
the Respondent.
Ira H. Weinstock, Esq., for the Charging Party.
DECISION
Statement of the Case
Margaret G.
Brakebusch, Administrative Law Judge. This case was tried in
On February 7, 2008, the Regional Director for Region 11
of the National Labor Relations Board (Board) issued a second order consolidating
cases, consolidated complaint, and notice of hearing based upon the allegations
contained in Cases 11–CA–21827, 11–CA–21828, and 11–CA–21856. The consolidated complaint alleges that on
various dates occurring between June and September 2007, Narricot Industries,
L.P. (Respondent) engaged in conduct violative of Section 8(a)(1) of the
National Labor Relations Act (Act).
Specifically, the consolidated complaint alleges that Respondent, acting
through its supervisors and agents, promised its employees increased benefits
if its employees removed the
On the entire record,3
including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel,
Findings of Fact
i.
jurisdiction
Respondent, a
ii. alleged
unfair labor practices
A. Background
Respondent is engaged in the business of manufacturing and
dyeing narrow textile fabrics used to construct vehicle seatbelts. Respondent has maintained a manufacturing
facility in
The International Textile Group (ITG) is a textile group
that owns various textile plants throughout the world. In early 2007, ITG acquired the Boykins and
A majority of the complaint allegations relate to conduct
by Kris Potter and Anja Baumann. Kris
Potter (Potter) has been Respondent’s human resource manager since April
2007. He serves as human resource manager
for not only Respondent’s Boykins and
B. Bargaining
By letter dated July 20, 2007, the
Bargaining sessions were also held on September 19 and 20. The last bargaining session occurred on September 26, 2007. Weitzel testified that based upon the progress that the parties had made during negotiations; he believed that the parties could have reached an agreement4 during the next scheduled negotiations meeting on October 1, 2007. The meeting never occurred, however, due to the Respondent’s withdrawal of recognition on September 29, 2007.
C.
Removing the
1. Respondent’s preparation of the petition
Potter testified that sometime in late July or early
August, employee Henry Vaughn met with him and asked what the employees could
do to remove the
On cross-examination, Potter was asked why the Respondent’s name was misspelled in the sample petition provided by the corporate HR department. While Potter acknowledged that Respondent’s name was misspelled, he could provide no explanation. He was also unable to explain why the petition contained the apparent misspelling of “do no” rather than “do not.”
Vaughn confirmed that he received the petition from Potter
after he inquired about how the employees could get rid of the
2. Baumann’s participation in the petition solicitation
Baumann testified that she heard from other employees that
Henry Vaughn had a petition to get rid of the
Using her own computer, Baumann retyped the list of employees. She explained that she created a list that better reflected employees’ shifts and departments. The following work day, Baumann began using the list to speak with employees. She estimated that she solicited employees to sign the petition for approximately 4 hours a day for a week and a half. Although Baumann worked on first shift, she came to work early and stayed beyond her shift to talk with employees on second and third shifts. She admitted that she was paid for the time that she solicited employees to sign the petition. During this period of time, she was also paid for 6 to 7 hours overtime.
When Baumann met with employees she told them that she was
working on an HR project. She recalled
that she told employees: “I’m working on
this petition here and we need signatures to get the
Baumann recalled that when she spoke with employees she tried to pull them away from where they were working on the production floor in order to better speak with them with less noise. She recalled that she either took them into the break room or just outside the production area. Baumann explained that she stopped the petition solicitation after a week and a half because employees would no longer talk with her and because she heard other employees talking about her.
At the end of each day that she solicited employee signatures, she took the copies of the petition to Potter. She recalled that after the second or third day that she gave him the petitions; Potter began telling her that he needed more signatures. In order to get more signatures, Baumann worked overtime. She recalled that during the period that she circulated the petition, she came in an hour early and stayed over an hour in the afternoons. Baumann testified that Potter would have known that she was working overtime to circulate the petition because he saw her arrive early during this period of time.
Potter testified that between April and October 1, he had
only one conversation with Baumann about the
In contrast to Potter, Baumann testified that when she submitted
the signed petition forms to Potter each day, he responded by saying “good” or
telling her that they needed more signatures.
Baumann recalled a specific conversation with Potter after her second or
third day of circulating the petition.
During the conversation, Potter gave her materials to show a comparison
between the employees’ current insurance benefits and those that would be
available to employees with ITG. The
materials reflected that there were more doctors and hospitals available to
employees under the nonunion plan.
Potter also told her that the employees in Respondent’s nonunion
facility (South Hill) had received a raise.
Potter explained that all of the employees working at the ITG’s nonunion
plants have a higher pay scale. Baumann recalled that Potter told her that
without the
During the first week in September, Union Vice President Brenda Fields observed Baumann talking with employees in the production area between 7:45 and 8 a.m. After 7 or 8 minutes of observing Baumann, Fields approached her. Fields asked Baumann if she had the petition that was being circulated in the plant and Baumann confirmed that she did. When Fields asked Baumann why she had the petition, Baumann told her that she was doing the job that she was told to do by Potter. Fields also asked Baumann why she had the petition when she was only going to be at the facility for the short term and it didn’t matter to her. Baumann pulled out some papers that Fields understood to pertain to insurance information. Baumann told her that with the new insurance policy, employees could go to a wider range of doctors. Fields countered by pointing out that a new insurance plan would probably have a higher premium and higher doctors’ fees and prescription costs. Union President Vickie Eley joined Baumann and Fields during their conversation. Eley testified that she heard Fields ask Baumann why she was circulating the petition. She recalled that Baumann responded that she had to do it because Potter told her to do it. Eley also recalled that although Baumann told them about the new insurance, she also assured them that she would no longer circulate the petition.
Employee Willie Mitchell recalled that during the first
part of September, Baumann approached him while he was working in the production
area. Baumann told him that she had paperwork
that management had asked her to get employees to sign in order to get rid of
the
While Baumann was soliciting employee signatures, employee Katrina Powell asked about removing her signature from the petition. Baumann told her that she would have to talk with Potter because he had the petitions.
3. Potter’s involvement with other employees
Potter initially testified that he also spoke with
employees Shelton McGee and Shirley Lewis about the petition and that both
Lewis and McGee submitted signed copies of the petition to him. Later in the hearing, Potter testified that
he only remembered receiving copies of the petition from Baumann and
Vaughn. Potter, in fact, testified that
he did not think that he gave Lewis a copy of the petition. Lewis, however, testified that she approached
Potter and asked for his help in getting a copy of the petition. Lewis maintained that approximately 5 or 6
years previously, she had also tried to get the
4. Potter’s continuing involvement with the petition
While Potter admitted that he spoke with both Vaughn and Baumann about the petition, he denied giving them instructions as to what they should say to employees. He asserted that he told them that they could talk with employees about the petition during their breaktimes, before or after work, and off Respondent’s premises, however, they could not talk with employees during worktime. Baumann, however, denied that Potter ever told her that she was restricted in soliciting employees’ signatures during working time.
Potter admitted that he told Vaughn and Baumann to return the petition forms to him and that he told these employees that a majority of the employees’ signatures were needed. While Potter denied that he ever told any of the employees circulating the petition the number of signatures that were needed, he also acknowledged that he kept a running tally for his own personal information. As Potter collected the petition forms, he reviewed a list of employees, and checked off the names of employees as their names appeared on the petitions.
5. The circulation
of the petition at the
Tim Beals is the weave manager at Respondent’s
It is undisputed that rule 9 of Respondent’s plant rules provides for progressive discipline for “selling, collecting, soliciting, or distributing literature on Company time or property without prior Company approval (except there may be solicitation or distribution for Union purposes on Company property but not on Company time).” The progressive discipline provides for a verbal warning for the first offense, a written warning for the second offense, and discharge for the third offense. Supervisor Beals acknowledged that while the petition violated rule 9, no discipline was ever issued to any employees as a result of the violation. Beals also testified that he had observed magazines, newspapers, and paperwork to raise money for churches or charities. Beals denied that he had ever issued any discipline for literature or information in the break room.
6. Supervisor Eric Hayes and the circulation of the petition
Employee Shelton McGee worked in the seatbelt weaving department
until his transfer to the warehouse in the summer of 2007. While working in the seatbelt weaving department,
he was supervised by Eric Hayes. In
approximately August 2007, McGee received a copy of the petition to remove the
Employee Oddie Mercer was aware of the petition’s circulation
in August 2007. He specifically recalled a conversation that he had with Hayes
around the latter part of August. Hayes
came to the work area and asked Mercer and two other employees to accompany him
to the office. Mercer identified the
other employees as Bridgette Newell and another employee whose first name is
Kim. Once inside the office, Hayes
handed Mercer a piece of paper. Mercer
recalled that Hayes told him: “I just came from my meeting and Charles wants to
get rid of the
Employee Willie Mitchell testified that on or about mid-
to late-August, he had a conversation with Hayes in the seatbelt weaving department. Mitchell testified that Hayes told him that
there was a petition going around to eliminate the
Hayes acknowledged that McGee asked him about leaving the
petition on his desk. While Hayes
testified that he told McGee that he could not be involved with the petition,
he does not dispute that the petition was placed in the supervisors’ office and
remained on his desk for as long as a week.
Supervisors Roger Langley and Randy Long also use the same office. Hayes’
desk is approximately 2 feet by 4 feet in size and contains a telephone. Hayes admitted that he never told McGee not to
put the petition on his desk. Hayes also
testified that when the petition appeared on his desk, he never called HR or
asked what he should do with the petition.
He confirmed that neither of the other two supervisors did anything with
the petition or removed the petition. He
also denied that he told any employees that the petition was in his office or
that he encouraged them to sign the petition.
Hayes admitted that he knew that employees were coming into his office
to sign the petition because he saw their signatures on the petition. He denied, however, that he promised any
employee better insurance or a pay raise if the
D. Revocation of Union Membership
The General Counsel alleges that Respondent, acting
through various supervisors, unlawfully solicited employees to withdraw from
membership in the
1. Supervisor Beals’ involvement
Beals testified that sometime in July 2007, employees
Betty Whitfield,
Beals confirmed that on September 17, Danny Mallon6 in the Boykins HR office brought three
copies of a letter to the
Employee Betty Whitfield testified that she asked Beals
about how employees could get out of the
2. Potter’s involvement
Potter recalled that employees Phillip Bell and Henry
Vaughn approached him about how they could stop paying union dues and revoke
their membership in the
Employee Edna Worrell recalled that in August she told
Henry Vaughn that she was considering getting out of the
E. Events Occurring in Late September
Potter acknowledged that during the time that the petition
was circulated in the facility, there was discussion and rumors in the plant
about Respondent granting a wage increase and changing the insurance
benefits. Specifically the rumors involved
employees’ getting a change in insurance benefits and wage increase if the
On September 24, 2007, Respondent’s Plant Manager Ed Hull
gave a notice to employees addressing a union handbill. In the notice, Respondent denies the Union’s
assertion that without a
F. Respondent’s Withdrawal of Recognition
In describing his discussions with corporate HR, Potter initially testified that Respondent was “gathering” petitions and then he corrected his testimony to reflect that he told corporate that Respondent “had petitions being submitted by employees.” Potter initially testified that he never told corporate HR the specific number of petitions that he had received. He opined that at some point he notified corporate HR that he had the signatures for an excess of 50 percent of the employees. Upon further examination, however, he confirmed that he told corporate HR that he had 212 signatures.
By letter dated September 29, 2007, Respondent’s attorney
informed the Union that a majority of its employees had presented a petition to
Respondent stating that they did not want to be represented by the
G. Respondent’s Unilateral Changes
The parties stipulated that on November 11, 2007, Respondent
implemented a wage increase and eliminated a double time overtime premium for
working in excess of 48 hours in a week.
The parties further stipulated that effective January 1, 2008,
Respondent implemented a change to its health and welfare benefit plans,
holidays, and 401(k) plan. Potter
acknowledged that Respondent did not negotiate or bargain with the
iii. analysis
and conclusions
A.
Whether Respondent Unlawfully Solicited Employees
to Withdraw Union Membership
The General Counsel alleges that Respondent, acting
through Supervisors Tim Beals and Kris Potter, unlawfully solicited employees
to withdraw their membership in the
Employee Edna Worrell testified that when she had told
Henry Vaughn in August that she was thinking about getting out of the
Based upon the record as a whole, I find that Respondent,
acting through Kris Potter, unlawfully solicited Worrell to resign her
membership in the
Whitfield credibly testified that when Beals presented her
and Towns with the revocation letters, he told her that it was her choice as to
whether she signed the letters. Towns
testified that Beals told her that since she had already signed the petition,
she could also sign the letter revoking her membership. Beals, however, recalled that Towns asked him
if she should sign the letter since she had already signed the petition. Beals testified that he explained to her how
the documents were entirely different.
Although Whitfield was also present during the conversation, she did not
corroborate Towns’ more coercive version of the conversation. Overall, I found Beals to be a credible
witness and his testimony appeared straightforward and genuine. Accordingly, the record does not support a
finding that Beals specifically solicited employees to resign their membership
in the
B.
Whether Respondent Unlawfully Assisted Employees
in the Circulation of the Petition
The General Counsel alleges that acting through
supervisors Potter, Beals, and Hayes, Respondent unlawfully provided assistance
to employees in the circulation of a petition to remove the
1. Potter’s involvement in the unlawful assistance
Henry Vaughn testified that when he asked Potter how the
employees could remove the
In addition to working through Vaughn, Potter also
provided a copy of the petition to Anja Baumann and to employee Shirley
Lewis. In addition to giving her the
copy of the petition, Potter provided Baumann with a list of all of the employees
in order to facilitate her solicitation for signatures. Additionally, Potter gave Baumann
documentation concerning the insurance that would be available to employees if
they removed the
There is no dispute that once Vaughn and Baumann secured signatures on the petition, the signature pages were submitted to Potter. Potter kept a running tally of the employee signatures. As he collected the forms, he reviewed a list of employees and checked off the names of the employees as their appeared on the petitions. Baumann recalled that after her second or third day of soliciting signatures, Potter told her that he needed more signatures. Baumann recalled that at the same point in time in which Potter told her that he needed more signatures, he told her about the raise that the employees had received at Respondent’s nonunion plant and about the insurance available to employees if they were nonunion. Baumann took this information and used it in her conversations with employees as she solicited signatures.
As discussed above, there is ample record evidence that Potter
unlawfully provided assistance to employees in the circulation of the
petition. The evidence demonstrates that
with the benefit of corporate office, Potter created the petition for employees
to remove the
In asserting that it provided only lawful and ministerial assistance to employees, Respondent points to the Board’s decision in Washington Street Brass & Iron Foundry, Inc., 268 NLRB 338, 339 (1983). In preparing a decertification petition to circulate among his fellow employees, a bargaining unit employee sought the advice of the employer’s labor consultant. The consultant reviewed the employee’s draft of the petition language and recommended one change in wording and recommended using the union’s full name in the petition. The judge determined that there was no showing that the employer instigated the petition and noted that the only conduct in drafting the petition was to provide some “inconsequential” phrases upon the specific request of an employee. Unlike the circumstances involved in the instant case, the employees then circulated the petition without further manifestation of the employer’s approval and without further involvement by the employer during the solicitation process. The Board affirmed the judge’s decision without comment concerning the alleged unlawful assistance.
Citing the Board’s decision in Bridgestone/Firestone, Inc., 335 NLRB 941 (2001), Respondent argues
that it lawfully prepared the petition and provided it to Vaughn only in response
to his inquiry about removing the
Respondent also argues that it did nothing unlawful in providing
Baumann with the list of employees because Baumann asked Potter for the list.9
Although both Potter and Baumann testified that Baumann asked for the
list, I do not find their testimony credible. Baumann testified that one of the reasons that
she contacted Potter was to understand what she had signed when she signed the
petition. She recalled that she told
Potter that she did not understand how unions functioned in the
Respondent submits that there was nothing unlawful about Potter’s tracking the number of employee signatures. Respondent argues that inasmuch as the tracking was accomplished after the employees’ signing the petition, it could have had no impact on the employees’ willingness to sign the petition. In support of its argument, Respondent relies upon McClatchy Newspapers, Inc., above at 1178, in which the employee circulating the petition gave periodic reports on his progress to management and was complimented and praised on his efforts. Although management received the reports of the progress without remonstrance, the judge noted that the employer’s tacit approval of the decertification effort did not equate to assistance.
Without a doubt, Potter did far more than simply provide “ministerial assistance” to employees. He engineered, directed, and supported the petition effort. The Board dealt with similar employer involvement in Condon Transport, Inc., 211 NLRB 297 (1974). In Condon Transport, the Board affirmed the judge in finding that the employer violated Section 8(a)(1) by its overall assistance to, and support of decertification activity. The judge explained: “It may well be that the law permits an employer, upon request of employees, to provide on an isolated and limited basis certain information otherwise unavailable to them or beyond their personal knowledge. However, such privilege may not be construed as a license for an employer to use employee requests as a pretext for enmeshing itself in virtually every stage of the decertification process.” The judge went on to find that the degree of involvement was such as to make the employer a full partner in the effort to oust the union, and would “create an atmosphere whereby employees, despite indifference or only marginal opposition to the union, would be encouraged to support management’s implicit intention in this regard.” In the instant case, the overall evidence demonstrates that by virtue of Potter’s sustained interaction with Vaughn, Baumann and other employees, in addition to the support given by Hayes and Beals, Respondent clearly became a significant participant in the petition process and engaged in conduct violative of Section 8(a)(1) of the Act.
2. Hayes’ involvement in the unlawful assistance
Respondent does not dispute that employee Shelton McGee placed a copy of the petition in the supervisors’ office and left it there for several days. During this period, McGee told employees about the petition’s presence in the office. Hayes admitted that although McGee asked permission to put the petition on Hayes’ desk, Hayes did not forbid him to do so. Although Hayes saw the petition on his desk, he did not tell McGee to remove it. He denies that he contacted HR to find out what he should do about the petition. Hayes was also aware that employees were adding their names to the petition while it remained in his office. Although Supervisors Langley and Long also shared the office, there is no evidence that either supervisor made any attempt to remove the petition or forbid its presence in the office.
Certainly the Board has found similar assistance to be
unlawful. In Placke Toyota, Inc., 215 NLRB 395 (1974), an employee placed a
decertification petition on a supervisor’s desk that was used by the supervisor
to distribute work orders to employees and to retrieve completed work orders
from the employees. The petition
remained on the desk for several days, during which time employees signed the
petition. The Board found that by
allowing the petition to remain on the supervisor’s desk for several days, the
employer gave the petition its open support or at least the clear impression of
open support. An employer does not maintain
a “neutral position” when it not only drafts the petition, but also allows
employees to sign the petition during working time and with supervisory
assistance in making the petition available to potential signers. Corrections
Corp. of
Counsel for the General Counsel also presented the testimony
of employees Oddie Mercer and Willie Mitchell concerning Hayes’ alleged
involvement in circulating the petition.
Mercer contends that Hayes brought him into the office along with
employee Bridgett Newell and another employee whose first name is Kim. Mercer alleges that Hayes told the employees
that he had just come from a meeting with “Charles” who wanted to get rid of
the
With respect to the alleged conversation between Hayes and
Mitchell, however, I find Mitchell’s recall to be credible. He alleges that when he passed Hayes on the
work floor, Hayes told him about the petition in the supervisors’ office. Mitchell recalled that Hayes opined that if
the employees got rid of the
As discussed above, I find that Respondent, acting through
Eric Hayes, unlawfully provided assistance to employees in the circulation of
the petition and unlawfully promised increased benefits if the employees
removed the
3. Beals’ involvement in the unlawful assistance
Complaint paragraph 8(c) alleges that in September 2007,
Beals informed employees of a petition to remove the
Towns confirmed that both she and Whitfield had been present
in the break room during a September discussion with Beals. Towns testified that after she and Whitfield
signed the petition that was present in the break room, she asked Beals how to
get out of the
Accordingly, based upon the testimony of both Towns and Whitfield, there is no evidence that Beals informed employees of the petition or instructed them to read or sign it. Beals acknowledged that during the month of August, he observed the petition in the break room and saw that it contained employee signatures. The petition remained in the break room for approximately a week. As discussed above, there is no evidence that Beals attempted to remove the petition or take any action that would dispel the perception that management supported and authorized the petition. Thus, Beals’ tacit permission to allow employees’ free and undisturbed access to the petition throughout the workday aided in the support and endorsement of the petition and violates Section 8(a)(1) of the Act.
4. Baumann as Respondent’s agent
Section 2(13) of the Act provides that:
In determining whether any person is acting as an “agent” of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.
In determining whether an employer is responsible for the actions of a rank-and-file employee, the Board has historically applied the general rules of agency and particularly the rules of apparent authority. Corrugated Partitions West, 275 NLRB 894, 900 (1985). “The Board has long held that where an employer places a rank-and-file employee in a position where employees could reasonably believe that the employee spoke on behalf of management, the employer has vested the employee with apparent authority to act as the employer’s agent, and the employee’s conduct is attributable to the employer.” Ibid.
Paragraph 8 of the complaint alleges that acting as an
agent of Respondent, Baumann unlawfully promised employees increased benefits
if they removed the Union as their bargaining representative and solicited
employees to sign the petition to remove the
The overall record evidence indicates that Baumann told
employees that she was working on a HR project and that signatures were needed
to get rid of the
Citing Precipitator
Services Group, 349 NLRB 797, 801 (2007), and
The question is whether, under all the circumstances, employees would reasonably believe that Baumann spoke for, and acted on behalf of, Respondent’s management. Futuramik Industries, 279 NLRB 185 (1986); Community Cash Stores, 238 NLRB 265 (1978). Phrased differently, the inquiry is whether the employer has placed the employee in the position of a conduit where employees reasonably believe that he or she speaks for management. Three Sisters Sportswear Co., 312 NLRB 853, 865 (1993). Either the principal must intend to cause the third person to believe the agent is authorized to act for him, or the principal should realize that its conduct is likely to create such a belief. Pan-Oston Co., 336 NLRB 305, 306 (2001).
Although it is apparent that Baumann promised employees
better benefits and wages if they removed the Union as their bargaining
representative, Baumann never testified as to why she wanted to get rid of the
In analyzing agency, the Board will also consider whether
the statements or actions of an alleged employee agent are consistent with
statements or actions of the employer.
Such consistencies support a finding of apparent authority. Pan-Oston,
above at 306; Hausner Hard Chrome of KY, Inc., 326 NLRB 426, 428
(1998). Baumann’s apparent authority is
bolstered by Respondent’s treatment of the petition in other parts of the
facility. There is no dispute that the
petition was allowed to remain in the supervisors’ office for a number of
days. During this time, Supervisor Hayes
was aware of the petition and yet neither he nor the other supervisors using
the office did anything to remove the petition or disavow management’s support
of the petition. The record also
reflects that the petition was allowed to be placed in the break room for
approximately a week at the
Aside from the issue of whether Baumann acted with apparent
authority, the record also reflects that Baumann acted with actual
authority. She solicited employee signatures
using the petition form provided by Potter.
There is no evidence that Baumann asked for a copy of the petition. She testified that when she first spoke with
Potter, she told him that she had signed the petition and she asked him to
explain what she had signed. Potter responded
by giving her a copy of the petition and telling her that approximately 200
signatures were needed to remove the
The overall record evidence supports a finding that Baumann acted as an agent of Respondent in soliciting employees to sign the petition. It is well settled that an employer violates Section 8(a)(1) of the Act by “actively soliciting, encouraging, promoting, or providing assistance in the initiation, signing, or filing of an employee petition seeking to decertify the bargaining representative.” Mickey’s Linen & Towel Supply, Inc., 349 NLRB 790, 791 (2007); Wire Products Mfg. Corp., 326 NLRB 625, 640 (1998), enfd. sub nom. NLRB v. Blankenship & Associates, Inc., 210 F.3d 375 (7th Cir. 2000). Clearly, as an agent of Respondent, Baumann actively solicited, encouraged, and promoted the signing of the petition in violation of Section 8(a)(1) of the Act.
Additionally, Potter’s comments to Baumann about better wage rates and more extensive insurance at Respondent’s non-union facilities tended to encourage Baumann in the circulation of the petition and thus also violated Section 8(a)(1). Fabric Warehouse, 294 NLRB 189, 191 (1989), enfd. 902 F.2d 28 (4th Cir. 1990). As an agent of Respondent, Baumann’s subsequent promise of the raise and the improved benefits to employees was also violative of the Act.
C. Respondent’s Unlawful Recognition Withdrawal
Respondent argues that as an employer, it not only had “the
right—it had the duty—to withdraw recognition” from the Union because a
majority of its employees exercised their Section 7 right not to be represented
by the
In its 2001 decision in Levitz Furniture Co., 333 NLRB 717, 724 (2001), the Board overruled Celanese Corp., 95 NLRB 664 (1951), and its progeny insofar as those decisions permitted an employer to withdraw recognition from an incumbent union on the basis of a good-faith doubt of the union’s continued majority status. As Respondent asserts, the employer under Levitz, has the burden of showing that, at the time it withdrew recognition, a majority of employees did not support the union. Thus, Respondent relies upon Levitz to support its argument that an employer may lawfully withdraw recognition from a union when it is able to show a numerical loss of majority status. It should also be noted however, that the Levitz case was decided in the absence of any other alleged unfair labor practices. In Levitz, there was no allegation that the employer was involved in any way in the circulation, support, or initiation of the petition that was relied upon by the employer.
1.
Respondent’s argument concerning the
loss of support
Respondent asserts that once it shows that a majority of
its employees did not support the Union at the time of its withdrawal, the
burden shifts to the General Counsel to show that Respondent violated Section 8(a)(1)
and that there was a “causal connection” between the Section 8(a)(1) and the
loss of majority. Respondent maintains
that other than the signing of the petition, employees evidenced their nonsupport
of the
In its brief, Respondent submits a comprehensive graph
demonstrating union membership in each of its departments. The Respondent argues that prior to the
initiation of the petition, only 24 percent of the bargaining unit employees
were members of the Union and thus argues that the
In General Dynamics Corp., 169 NLRB 131, 138 (1968); a case that proceeded the Levitz decision, the employer withdrew recognition from the union, arguing that it had a good faith doubt in questioning the union’s majority. Although the Board ultimately found that the employer had a reasonable basis for doubting that the union still represented a majority of its employees based upon a number of factors, the Board specifically added:
We must, however, emphasize that, in reaching this conclusion,
we do not rely to any significant extent on the fact standing alone that less
than a majority of the employees supported the
Thus, a union may enjoy majority support even if less than
a majority of employees maintain union membership or authorize their employer
to deduct union dues from their paychecks.
Furniture Rentors of
Respondent also cites two recent court decisions in its argument that a decline is union membership is relevant in withdrawal of recognition cases. Respondent cites Tri-State Health Service v. NLRB, 374 F.3d 347, 354–355 (5th Cir. 2004), and McDonald Partners, Inc. v. NLRB, 331 F.3d 1002, 1005–1007 (D.C. Cir. 2003). In both cases, the courts admonished the Board and the respective administrative law judges for a failure to consider membership and dues checkoff data as one of the factors in evaluating the employers’ alleged good-faith doubt of the unions’ majority status.
Interestingly, these same cases were analyzed by the Board in a recent case involving an allegation that the employer unlawfully polled its employees to determine their support for the incumbent union. In Wisconsin Porcelain Co., 349 NLRB 151, 152 (2007), the employer argued that the judge erred by failing to give any weight to evidence that only a minority of the unit employees were union members and that dues checkoff had declined from 43 percent in the fall of 1997 to 28 percent at the time of the poll. The Board stated that in both Tri-State Health Service v. NLRB and in McDonald Partners, Inc. v. NLRB, the courts acknowledged that in light of Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998),12 union membership and dues check-off evidence can “in some circumstances,” be probative “to some degree” of good-faith uncertainty. The Board also noted that both courts emphasized that the weight to be given to such evidence is dependent on the circumstances of each case. Special attention was given to the fact that in Tri-State, dues checkoff fell from 11 to 0 in a unit of 30–40 employees and in McDonald, dues checkoff fell from nearly all the employees to 0 in a unit of 100 employees. The Board contrasted this level of acute decline to the circumstances in Wisconsin Porcelain Co., where 28 percent of the bargaining unit still authorized dues checkoff. This percentage is only slightly higher than the 24 percent upon which Respondent relies in the instant case.
In Wisconsin
Porcelain, the Board not only considered the existence of the 28 percent of
employees who continued to authorize dues deductions, the Board also found it
significant that the number of union members and dues payers had been less than
50 percent for many years, and yet the parties had still enjoyed a long and
stable collective-bargaining history. In
the instant case, Respondent argues that in June 2005, the
Respondent not only argues that the petition demonstrates
an actual loss of majority support, but also asserts that the decline in
membership solidifies the loss. I note
however, that despite the fact that union membership may have been declining over
a period of years, Respondent did not rely upon the decline as a basis for the
withdrawal of recognition. In its letter
to the Union of September 29, 2007, Respondent told the
2. Conclusions with respect to the recognition withdrawal
It is well settled that a withdrawal of recognition must
occur in a context free of unfair labor practices. Mathews
Readymix, 324 NLRB 1006, 1007 (1997);
Respondent argues that all of the complaint allegations involve
isolated incidents and would only have affected a small percentage of the
number of employees who signed the petition.
Accordingly, Respondent asserts that there is an insufficient causal
nexus between the alleged misconduct and employee disaffection as a whole to
taint its withdrawal of recognition.
Certainly there were a total of 212 employees who signed the petition
and they did so under different circumstances and for varying reasons. While not all of the signatures on the petition
may have been tainted by Respondent’s unlawful assistance and support, the General
Counsel need not prove that the employees were aware of Respondent’s unfair
labor practices. The Board has found
that where an employer engages in unlawful conduct aimed specifically at
causing employee disaffection with their union, the employer’s conduct will bar
any reliance on an expression of disaffection by its employees, even if some of
the employees may be unaware of the employer’s misconduct. Vanguard
Fire & Supply Co., 345 NLRB 1016, 1045 (2005); Hearst Corp., 281 NLRB 764, 765 (1986). Additionally, when an employer commits unfair
labor practices in connection with an employee decertification effort, the
Board does not require proof of how many employees were exposed to, or were
aware of, the employer’s illegal conduct.
House of Good Samaritan, 319
NLRB 392, 396 (1995);
Additionally, this case does not involve simply random
8(a)(1) comments that occurred during the course of an otherwise independent
circulation of a petition to remove the
In order to lawfully withdraw recognition from an
incumbent union, an employer cannot rely upon a tainted petition or the results
of the employer’s own efforts. Shen-Lincoln-Mercury-Mitsubishi, Inc.,
321 NLRB 586, 595 (1996); Weisser Optical
Inasmuch as Respondent relied solely on the petition as
the basis for its decision to withdraw recognition from the
D. Respondent’s Unilateral Changes
In November, Respondent held meetings with employees to announce changes in wages and benefits. During one of the meetings, Plant Manger Hull announced that there would be a new health care plan and that employees would receive pay raises. On November 1, Respondent implemented a wage increase and eliminated double overtime premium pay for work in excess of 48 hours in a week. On January 1, 2008, Respondent implemented a change in its health and welfare benefit plan, and changed its holiday schedule as well as its 401(k) plan.
Potter admitted that Respondent did not notify or bargain
with the
Conclusions of Law
1. Narricot Industries, L.P., Respondent, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council, Local No. 2316 is a labor organization within the meaning of Section 2(5) of the Act.
3. By promising its
employees increased benefits and wages if they removed the
4. By soliciting
employees to sign a petition to remove the
5. By soliciting
employees to withdraw their membership in the
6. By unlawfully
providing assistance to employees in the circulation of a petition to remove
the
7. Respondent has violated Section 8(a)(5) and (1) of the Act since September 29, 2007, by failing and refusing to bargain with the Union as the exclusive bargaining representative of its employees in the following appropriate unit:
All production, maintenance, and plant clerical employees
employed at Respondent’s
8. Respondent has
violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the
9. Respondent has violated Section 8(a)(5) and (1) of the Act by unilaterally changing wages, the 401(k) plan, health and welfare plans, holidays, and other conditions of employment of its bargaining unit employees.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act.
A determination has been made that Respondent has unlawfully
refused to bargain with the Union as the collective-bargaining representative
of its employees and that Respondent has unlawfully withdrawn recognition of
the
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended13
ORDER
The Respondent, Narricot Industries, L.P.,
1. Cease and desist from
(a) Promising its employees increased benefits and wages
if they remove the
(b) Soliciting its employees to sign a petition to remove
the
(c) Soliciting employees to withdraw their membership in
the
(d) Providing assistance to employees in the circulation
of a petition to remove the
(e) Failing and refusing to bargain with the
(f) Withdrawing recognition from the
All production, maintenance, and plant clerical employees
employed at Respondent’s
(g) Unilaterally changing wages, the 401(k) plan, health and welfare plans, holidays, and other conditions of employment of its bargaining unit employees.
(h) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith with the United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council Local No. 2316 with respect to the wages, hours, and other terms and conditions of employment for its bargaining unit employees and, if an understanding is reached, reduce the agreement to writing and sign it.
(b) Upon the request of the Union, rescind any or all unilateral changes to unit employees’ wages, holiday, overtime premiums, health and welfare benefit plans, 401(k) retirement plans, and other terms and conditions of employment, and maintain the unit employees’ terms and conditions of employment unless and until the parties bargain in good faith to an agreement or lawful impasse concerning any proposed changes thereto.
(c) Within 14 days after service by the Region, post at its Boykins, Virginia, and Murfreesboro, North Carolina facilities copies of the attached notice marked as “Appendix.”14 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 2007.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not promise our employees increased
benefits and wages if they remove the
We will not unlawfully assist employees in their attempt
to remove the Union by soliciting employees to sign a petition to remove the
We will not unlawfully solicit our employees to resign their union membership or their authorization for dues deductions.
We will not refuse to recognize or to bargain with United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council, Local No. 2316 as the exclusive bargaining representative of our employees in the following appropriate unit:
All production, maintenance, and plant clerical employees
employed at Respondent’s
We will not unilaterally change wages and benefits for our bargaining unit employees without first notifying their exclusive collective-bargaining representative and affording it a reasonable opportunity to meet and bargain about the decision to increase wages and employee benefits and its effects on employees.
We will not in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will recognize and, on request, bargain in good faith with the United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council, Local No. 2316 as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit set forth above regarding wages, hours, and other terms and conditions of employment, and if an understanding is reached, reduce the agreement to writing and sign it.
We will, upon the request of the Union, rescind any or all unilateral changes to unit employees’ wages, holidays, overtime premiums, health and welfare benefit plans, 401(k) retirement plans, and other terms and conditions of employment, and maintain the unit employees’ terms and conditions of employment unless and until the parties bargain in good faith to an agreement or lawful impasse concerning any proposed changes thereto.
We will make whole, with interest, our bargaining unit employees for any loss of wages or loss of benefits they may have suffered due to our unilateral changes in wages and benefits.
Narricot Industries, L.P.
1 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties.
2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
3 The Respondent has
excepted to some of the judge’s credibility findings. The Board’s established
policy is not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us that
they are incorrect.
The Respondent also contends that the judge improperly credited one
part, but discredited another part, of Supervisor Eric Hayes’ testimony. We disagree. “[N]othing is more common in all kinds of judicial
decisions than to believe some and not all”
of a witness’ testimony.
4 We affirm the judge’s findings that the Respondent violated Sec. 8(a)(1) by soliciting employees to resign their union membership and to revoke their dues checkoff authorizations. In adopting the judge’s finding in this regard, Member Schaumber does not pass on whether merely preparing letters revoking dues-deduction authorization on behalf of employees would be unlawful. Here, the Respondent went well beyond such assistance.
5 In such circumstances, it is unnecessary to
pass on whether the petition was tainted under the standards set forth in
6 We find no need to rely on the judge’s speculation that misspellings on the petition were intended to disguise the Respondent’s role in its preparation.
7 Member Schaumber does not pass on whether the mere provision of an employee list to facilitate the collection of signatures on a decertification petition would constitute unlawful assistance. He finds the violation based on the cumulative evidence cited above.
8 The judge also found that Potter made an unlawful promise to Baumann that employees would receive wages and insurance benefits comparable to those received by employees at the Respondent’s nonunion facilities. We reverse the judge’s finding inasmuch as there was no complaint allegation regarding this conduct, the Respondent had no notice that it would need to defend the legality of this statement, and the issue was not fully litigated. We have modified the Order and notice accordingly.
9 We therefore find it unnecessary to pass on whether Baumann acted as the Respondent’s agent in unlawful support of the decertification effort. We also reverse the judge’s finding that Weave Manager Tim Beals provided unlawful assistance by failing to remove a copy of the decertification petition placed by an employee on a break room table. The Respondent’s rules permitted the petition’s placement at this location, and there is no evidence that Beals took any affirmative action to encourage employees to read or sign it.
10 NLRB v. Mullican Lumber & Mfg. Co., 535 F.3d 271 (4th Cir. 2008), which issued after the judge’s decision here, does not require a different result. In that case, the court denied enforcement of the Board’s bargaining order emphasizing that the employer withdrew recognition based on a decertification petitioner’s letter stating that a majority of unit employees no longer wanted their union and had signed slips in support of a decertification petition pending in a Board Regional Office. During the underlying unfair labor practice hearing, the General Counsel and union did not contest the accuracy or authenticity of the letter or of corroborative witness testimony introduced by the employer. Furthermore, there were no allegations that the respondent engaged in any unfair labor practices tainting the petition. Thus, in the court’s view, the respondent in Mullican did what we find the Respondent here has failed to do, i.e., it proved actual loss of majority support based on an untainted decertification petition signed by an employee majority.
Member Schaumber acknowledges that Hearst Corp., supra, relied on by the judge, is extant Board law
and applies it for the purpose of deciding this case. In his view, even unfair
labor practices such as those in this case might not taint a petition if there
was affirmative evidence that a majority of unit employees both signed the
petition and were unaffected by the unlawful conduct. However, here, the only
other evidence with respect to employees’ support for the
11 We also affirm the judge’s findings that postwithdrawal unilateral changes in unit employees’ terms and conditions of employment violated Sec. 8(a)(5).
12 Member
Schaumber does not agree with the view expressed in Caterair International,
supra, that an affirmative bargaining order is “the traditional, appropriate
remedy for an 8(a)(5) violation.” He
agrees with the United States Court of Appeals for the District of Columbia
Circuit that a case-by-case analysis is required to determine if the remedy is
appropriate.
13 We note that union negotiator Jason Weitzel testified that the parties were on the verge of a complete agreement when the Respondent withdrew recognition in late September 2007.
1 The formal papers were amended at hearing to reflect the correct name of the Charging Party.
2 All dates are in 2007, unless otherwise indicated.
3 Because of transcribing errors, a portion of the testimony of Kris Potter and Eric Hayes was omitted from the transcript. Following the hearing, the parties reached an agreement and stipulation concerning the testimony that was erroneously omitted from the transcript. Both joint stipulations are received into the record and I have considered the stipulated testimony. The document captioned as joint stipulation regarding Eric Hayes’ testimony on direct examination is received as Jt. Exh. 2. The document captioned as joint stipulation regarding portions of Kris Potter’s testimony on cross-examination is received as Jt. Exh. 3.
4 The
parties stipulated that prior to withdrawing recognition from the
5 He estimates that this same number of employees have been present since September 2005, when he transferred from the Boykins facility.
6 During the course of the hearing, the complaint and answer were amended to include Mallon as a supervisor.
7 Potter
testified that
8 Complaint
par. 8(c) alleges that Respondent unlawfully provided assistance to employees
in the circulation of the petition through the conduct of Supervisor Tim Beals
in September 2007. Specifically, the
complaint alleges that Beals informed employees of a petition to remove the
9 In its argument that an employer may lawfully provide employees with a list of employees in connection with a decertification campaign, Respondent relies upon the Board’s decisions in McClatchy Newspapers, Inc., 337 NLRB 1161, 1178 (2002), and Times-Herald, Inc., 253 NLRB 524, 524 (1980). In Times-Herald, the Board found that an employer was not responsible for a supervisor’s participation in a decertification effort, noting that he was also a member of the bargaining unit. Although a member of management provided the supervisor/unit employee with the telephone number for the Board’s Regional Office, there was no evidence relating to the circumstances in which solicitations were made. During its discussion, the Board referenced its earlier decision in Consolidated Builders, Inc., 171 NLRB 1415 (1968), in which an employer had lawfully provided a list of employee names and addresses to an attorney representing a decertification committee. There was no discussion, however, in the Board’s decision in Times-Herald to indicate that the employer had provided such a list to the supervisor/bargaining unit employee in issue. In McClatchy Newspapers, Inc., the administrative law judge found that the employer did not unlawfully assist in the inception or fruition of a decertification petition. No exceptions were filed and the Board dismissed the complaint; which also included other allegations of Sec. 8(a)(1) and (3). In her discussion of the alleged unlawful coercion related to the petition, the judge cited the Board’s decision in Times-Herald in relation to an employer’s providing a list of employee names to a decertification committee. While the judge listed the conduct that was alleged to have constituted unlawful assistance, providing a list of employee names was not included in the alleged conduct. I note, however, that in Consolidated Builders, Inc., the case cited by the Board in its Times-Herald Inc. decision, there was no evidence that the employer did anything to assist in the decertification effort and simply responded to the attorney’s written request for the names and addresses of employees.
10 Respondent submits that Mitchell should not be credited because he had previously received counseling from Hayes. Mitchell denied that the prior counseling constituted a warning. While Mitchell was terminated from Respondent’s facility in December 2007, he did not report to Hayes at the time of his discharge. Based upon his testimony as a whole, I do not find the circumstances of Mitchell’s discharge or counseling sufficient to discredit his testimony concerning this brief conversation with Hayes. Even assuming that Mitchell harbored some animus toward Hayes for this unidentified nondisciplinary counseling, Mitchell did not appear to exaggerate or embellish his testimony.
11 Complaint par. 8(c) alleges that acting through Potter, Respondent allowed the use of worktime to solicit signatures on the petition. Respondent argues that there is no evidence that Potter or any other managerial employee was specifically aware of any employee solicitations during work hours. Respondent is correct that no witness testified that Baumann or any other employee solicited signatures on working time in the presence of a supervisor. While there is no evidence that management officials specifically witnessed and sanctioned the working hours solicitations, Baumann admitted that she did so. While this conduct may not demonstrate Respondent’s unlawful assistance, it supports the finding that Baumann acted with apparent authority. Baumann credibly testified that Potter never told her that she could not solicit during working time. Carrying her clipboard with the list of employees and the petition, she began soliciting employees the very next day after meeting with Potter. Although there is no evidence that Potter or any other management official observed Baumann in her solicitation efforts, other employees most certainly were aware of what she was doing. There was no evidence that any of the other employees involved in the solicitation acted with such disregard for Respondent’s rules prohibiting solicitation during working hours. The fact that Baumann openly did so only bolstered employees’ perception that she was acting with management’s authority and approval. Her conduct, coupled with her telling employees that she was working on an HR project, provided strong evidence of her agency status to her fellow employees.
12 In Allentown Mack, the Court clarified that the Board must interpret “doubt” to mean uncertainty rather than disbelief. The burden is on the employer to prove good-faith reasonable uncertainty.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
14 If this
Order is enforced by a judgment of a