American Can Co.Download PDFNational Labor Relations Board - Board DecisionsFeb 28, 1966157 N.L.R.B. 167 (N.L.R.B. 1966) Copy Citation DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 167 WE WILL bargain collectively , upon request, with General Teamsters , Chauf- feurs, Warehousemen and Helpers , Building Materials, Heavy and Highway Construction Employees Local Union No 404 , a/w International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America as the collective- bargaimng representative of all of our employees in the unit described as follows All beer, wine , and liquor salesmen at the Company 's Holyoke and Pitts- field, Massachusetts , establishments , excluding all other employees , office clerical employees , guards, professional employees , and supervisors as defined in the Act WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named Union or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by the provisions of Section 8(a)(3) of the Act, as amended NEW ENGLAND LIQUOR SALES Co , INC, Employer Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material If employees have any question concerning this notice or compliance with its pro- visions , they may communicate directly with the Board 's Regional Office , Boston Five Cents Savings Bank Building, 24 School Street , Boston, Massachusetts, Tele- phone No 223-3358 Dixie Cup, Division of American Can Company and International Union of Electrical , Radio and Machine Workers, AFL-CIO. Cases Nos 9-CA-3222 and 9-RC-5875 February 28,1966 DECISION AND ORDER On July 15, 1965, Trial Examiner Arthur E Reyman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in and was not engaging in the unfair labor prac- tices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Exam- iner's Decision Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Charging Party filed cross-exceptions and a brief in support thereof The Respondent filed a brief in support of the Trial Examiner's Decision, a brief in answer to the General Counsel's exceptions, and a brief in answer to the Charging Party's cross-exceptions 1 i The Respondent in its answering brief moved to strike the Charging Party's cross exceptions on the basis that they were untimely in view of Section 10$ 46 ( e) of the Board 's Rules and Regulations Series 8, as amended General Counsel 's exceptions herein were filed on August 19, 1964 , and his brief in support thereof on August 31, 1964 The Charging Party's cross-exceptions were received on September 20 1964 We find that the said cross exceptions were untimely filed under the provisions of Section 102 46(e) of the Board's Rules Accordingly, the Respondent ' s motion to strike is granted 157 NLRB No 9 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the National Labor Relations Act,, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Members Fanning, Brown, and Zagoria]. - The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,2 and recom- mendations of the Trial Examiner with the exceptions stated below. The complaint as amended at the hearing alleged that the Respond- ent violated Section 8(a) (1) of the Act when its attorneys questioned certain employees during prehearing interviews. The Trial Exam- iner recommended the dismissal of this allegation of the complaint on the ground that the interrogations complied with the criteria the Board has indicated it would look to in determining whether such interrogations were properly pursued, or contained elements of un- lawful interference, restraint, or coercion of employees in violation of their statutory rights. In finding that the Respondent's attorneys conduct was proper, the Trial Examiner relied on a statement of Attorney Robert Kleeb to the effect that in his opinion none of the employee interviews were unlawfully conducted. But, the credible evidence in the record shows that on at least three occasions employees in the course of interviews with Respondent's attorneys were ques- tioned as to the identity of the persons from whom they received union authorization cards. Such interrogation goes beyond the per- missible limits set by the Board and is coercive in nature. Insofar as this record goes, we find no justification for such interrogation in the events or circumstances with which we are here concerned. Accord- ingly, we find that the Respondent violated Section 8(a) (1) of the Act by the conduct of its attorneys in asking employees questions which pried into their union activities and the union activities of fel- low employees. The Trial Examiner also found that the Respondent's preelection notice of March 1, its letter of June 3, and its speeches of June 10 and 11 to the assembled employees were no more than expressions of views, arguments , or opinions and therefore fell within the privilege of See- 2 The complaint alleged a violation of Section 8(a) (1) of the Act by an alleged threat of Supervisor Vernon . Employee Readnower testified that Vernon told him that he could be "discharged for putting things [union literature ] on the bulletin board without 'the authorization of the Company." Vernon denied that any such statement was made and the Trial Examiner credited his denial . However, he expressed the view that even were Readnower 's testimony accepted , "Nothing in the way of a threat, direct or implied, can be read into the remarks Readnower said Vernon addressed to him ." While we adopt the Trial Examiner 's credibility finding and his dismissal of the allegation , we find it un- necessary to pass on the additional view expressed by him. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 169 tion 8(c) of the Act. Accordingly, he found no violation of Section 8(a) (1) of the Act and recommended dismissal of the complaint. While we agree with the Trial Examiner that the letter and speeches were privileged under Section 8 (c), we do not agree that the paragraph in its March 1 notice warning employees "that if a Union were to get in here, it would not work to your benefit, but in the long run, would itself operate to your serious harm" was similarly privileged .3 It is true that no other elements of the Respondent's letter and speech are found to have violated the Act, but given a course of conduct on the part of the Respondent which narrowly treads the dividing line between right and wrong, we are not prepared to say that in this in= stance the language of the notice did not step over the line into the forbidden area. Moreover, we regard the unlawful interrogation by the Respondent's attorneys in the course of preparing a defense herein as symptomatic of the Respondent's unlawful conduct in which it ini- tially engaged 4 REMEbY Having found that Respondent has engaged in unfair labor .prac- tices violative of the Act, we shall order that it cease and desist there- from and take certain affirmative. action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Dixie Cup, Division of American Can Company, Respondent Employer, is an employer as defined in Section 2(2) of the Act and is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL--CIO,. is a labor organization as defined in Section 2(5) of the Act. 3. By interrogating its employees concerning their union activities and the union activities of other employees and:by threatening to take reprisals against employees if they selected the Union as their bar- gaining representative, the Respondent has violated Section 8(a) (1) of the Act. 4. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its 8 See Owene-Corning Pibergla8s Corporation, 146 NLRB 1492 , 1494 ; Spruce Pine Manu- facturing Company, 153 NLRB 309. * Member Fanning does not subscribe to the above rationale. He finds only that the "serious harm" language in Respondent 's March 1 notice violates Section 8 ( a) (1) In the context of Respondent's unlawful interrogation. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order the Recommended, Order of the Trial Examiner, as modified herein, and orders that the Respondent, Dixie Cup, Division of Amer- ican Can Company, Lexington, Kentucky, its officers, agents, succes- "sors, and assigns, shall: 1. Cease and desist from : (a) Coercively interrogating employees concerning their union activities and sympathies and the union activities of other employees and threatening employees with reprisals if they selected the Union as their bargaining representative. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization , to form labor organizations , to join or assist Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization , to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. ' 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Lexington, Kentucky, copies of the attached notice marked "Appendix." 5 'Copies of said -notice, to .be furnished by,the Regional Director for Region 9, shall, after being duly signed by the Company's representative, be posted by the Company immedi- ately-upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company -to insure that said notices are not altered, defaced, or covered by any other material. - " . :(b) Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the,Union's objections to the conduct of the election- conducted on June.12, 1964, in Case No. 9-RC-5875, be, and they hereby are, overruled. Inasmuch as the Union failed to receive a majority of the valid ballots cast in the election, it is hereby certified that International Union of Electrical, Radio and Machine Workers, AFL-CIO, is not the exclusive bargaining representative of the employees of Dixie Cup, Division of American Can. Company, IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" -the. words, "ii Decree , of the United States Court of Appeals , Enforcing an Order." DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 171 at its Lexington, Kentucky, plant, in the unit found appropriate' by the Regional Director in his Decision and Direction of Election of May 121, 1964, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. - MEMBER BROWN, dissenting in part: - While I join with my colleagues in finding that the Respondent violated Section 8(a) (1) of the Act in the particulars noted, I must dissent from their adoption of the Trial Examiner's findings that the Respondent's letter of June 3, 1964, and speeches of June 10 and 11, 1964, amounted to no more than an expression of views, 'argumeiits, or opinions, permissible under Section 8(c) of the Act. I am of the firm opinion that both the letter and speeches' contain certain statements that amount to clear threats of economic reprisals for selecting the Union.6 I can place no other interpretation on Plant Manager Boyer's statements, made in the course of his, speeches that the Respondent moved its plant from Chicago to Louisville in order to get away from a union; that a local company had gone out of,busi- ness after a union came in ; and that another local company moved its machinery back up north after its employees selected a union as'their bargaining representative. Thus, 'in the speeches the Respondent threatened the employees with the possible loss of their jobs if' the Union came in and held forth in the letter addressed to the employees the lure of "a steady job at good wages and a good place-here to work" if only they would not "run the risk of tearing apart everything that they now had by. bringing this outside union in." The plain meaning of the Respondent's words could not have failed toyimpress the em- ployees that their "security" depended on being loyal and cooperative with the Company and not by casting their lot with tlie.Union; and that the employees "[stood] to lose if the Union were to get in here and ... [stood] to gain by keeping it out !" My colleagues agree that the, "serious harm", portion of `Respond- ent's March 1 notice violated Section 8(a)•(1) of the Act:- But,-l would not stop short there. It is very clear, to me that this,notice. was just the beginning of the Respondent's efforts to weave a distinctive pattern with one thread running throughout which could only instill in the minds of its employees the fear of the dire consequences that would follow if the employees selected union representation. Thus, in keeping with the theme of the inevitability' of strikes if the Union came in and of the "serious harm" that such event could occasion, the Respondent in its letter of June 3, ' in addition to threatening eco- nomic reprisals, told its employees that "WHERE UNIONS ARE IS WHERE STRIKES' GENERALLY 'OCCUR"; that strikes' often 6 C. J Glasgow Co, 148 NLRB 98,112; Caribe General Electric, Inc, and General Elec- tric Switchgear, Inc., 149 NLRB 1541, 1548. 1' 1 1 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause violence and bloodshed; that this could happen at Dixie Cup; and that the only way a union could make Dixie Cup do anything it was not willing to do would be by "PULLING YOU OUT ON STRIKE." In his speech Boyer, in addition to threatening plant closure, also raised the spectre of futility of bringing in the Union and the possibility of an anticipatory refusal to bargain by informing the employees that strikes, which were inevitable after unionization, would not do the employees any good since when "Dixie says this is what we can pay; this is what we can do; this is what we, will do-we mean it ! " He reminded the employees that every Dixie plant that has a union . has had a strike, and informed them that strikes at other Dixie plants have gained nothing for any of the employees involved. Words and phrases cannot be deprived of their meaning and voided of their reasonably calculated effect by being placed in isolation. They are, like other utterances and conduct to which they relate, meaningful only in,the context from which they arise. An analysis of the entire notice, letter, and speech clearly reveals that they were used together and interwoven in order to: (1) Convey the'firm impression that strikes and loss of benefits and security aris' ing therefrom were inevitable with the selection of union representa- tion; ( 2) instill in the employees' minds that they were risking good working conditions by selecting the Union; and (3) show the futility of collective bargaining because the Respondent would pay what it wanted to, regardless of the Union and its strikes.. Under the circum- stances, I am convinced that they were not appeals to reason or even expressions of opinion, but, can only be regarded as declarations con- trived to warn employees that, if they chose the Union as their bar- gaining representative, strikes, loss of wages, and loss of jobs would result. I would therefore find that the Respondent's letter and speech were not protected by 8(c) of the Act, but constituted restraint and coercion of employees in the exercise of their rights guaranteed under the Act thereby violating Section 8 (a) (1) of the Act.7 7 See Northwest Engineering Company, 148 NLRB 1136, 1143-1144; Brownwood Manu- facturing Company, 149 NLRB 921; 924. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT coercively interrogate our employees concerning their union activities and sympathies or the union activities of other employees or threaten them with reprisals for selecting the Union as their bargaining representative. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 173 WE WILL NOT in any like or related manner interfere With, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, join or assist In- ternational Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compli- ance with its provisions, they may communicate directly with the Board's Regional Office, Room' 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE International Union of Electrical , Radio and Machine Workers, AFL-CIO, herein- after sometimes called the Union or IUE , on June 11, 1964,1 filed a charge, and on June 29 filed an amended charge against Dixie Cup, Division of American Can Com- pany, hereinafter sometimes called the Respondent , the Respondent- Employer, or the Company, the basis for the amended charge being that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5 ) of the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151 , et seq., herein called the Act. On October 14, the General Counsel of the National Labor Relations Board, on behalf of the Board , by the Regional Director for Region 9, pursuant to Section 10(b) of the Act and Section 102.15 of the Board's Rules and Regulations , Series 8, as amended, issued a complaint and notice of hearing against the Respondent , the complaint alleging that the Respondent by certain acts and con- duct "has engaged in, and is engaging in, unfair labor practices as defined in Section 8(a)(1) and ( 5) of the Act, affecting ` commerce ' as defined in Section 2(6) of the Act." The Respondent filed timely answer to the complaint , effectively denying that it had or was engaging in the alleged unfair labor practices. Pursuant to notice , Case No. 9-CA-3222 came on for hearing before Trial Exam- iner Arthur E. Reyman at Lexington, Kentucky , on December 10. On December 11 the Board caused an order to be entered in Dixie Cup, Division of American Can Company and International Union of Electrical, Radio and Machine Workers, AFL-. CIO, Case No. 9-RC-5875 , granting the Employer 's (here Respondent 's) request for review of the Regional Director 's Supplemental Decision , Order, and Direction therein , and further ordering ". . . that a hearing be held with respect to the issue raised by the Objections and the Regional Director is authorized to consolidate the ' Unless specifically noted , all dates hereinafter mentioned are for the year 1964. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Proceeding with Case No 9-CA-3222 for purpose of hearing and disposition of the Objections issued by the Trial Examiner therein " The Regional Director, by tele- gram of the same date, advised me of the entry of the Board's order, and further " you are hereby notified that these cases are accordingly consolidated for purposes of hearing, ruling and decision " The hearing was closed on December 17 At the hearing, the General Counsel and the Respondent were at all times represented by counsel Appearances of two International representatives were noted as repre- senting the Union, and the appearance of counsel on the third day All parties were afforded full opportunity to be heard, to call and examine and cross-examine wit- nesses, to present oral argument, to file proposed findings and conclusions or both, and to file briefs Briefs have been submitted on behalf of the General Counsel and the Union, and a brief with proposed findings on behalf of the Respondent From my observation of the witnesses, and upon the whole record of these proceed- ings, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT EMPLOYER Dixie Cup, Division of American Can Company, a New Jersey corporation, is engaged in the manufacture of paper cups at its plant at Lexington, Kentucky During the year immediately preceding the issuance of the complaint herein, which is a representative period, the Respondent had a direct outflow in interstate commerce of goods and products valued in excess of $50,000 which were shipped directly from its plant at Lexington, Kentucky, to points outside the State of Kentucky At all times material herein, the Respondent is and has been an employer, as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act, respectively II THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio and Machine Workers, AFL-CIO, is, and has been at all times material herein, a labor organization as defined in Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Union's request for recognition and subsequent Board-conducted election The complaint avers, and the answer admits, that at all times material herein, a unit of Respondent's employees at its Lexington, Kentucky, plant, appropriate for purposes of collective bargaining, consisted of "All production and maintenance employees employed by the Respondent at its Lexington, Kentucky, plant, excluding office clerical employees, plant clerical employees, salaried personnel, guards, profes- sional employees, and supervisors as defined in the Act " The complaint avers, and the answer denies, that at all times since on or about May 9, 1964, a majority of the employees of the Respondent in said unit designated and selected the Union as its exclusive representative for the purposes of collective bargaining with Respondent and, at all times since said date, the Union has been and is now the exclusive representative for all employees in the said unit for the purpose of collective bargaining with Respondent as to rates of pay, wages, hours, and other terms and conditions of employment In February, the IUE began an effort to organize the employees in the Lexington plant Under date of April 22, William Edwards, Jr, union representative, addfessed a letter to the general manager of the Respondent's Lexington plant, as follows Please be advised a majority of your employees in the Production and Mainte- nance Departments, have made application for membership in the International Union of Electrical, Radio and Machine Workers, AFL-CIO, to represent them in Collective Bargaining I would appreciate an early meeting to discuss mutual agreed-to dates for the purpose of contract negotiations, for your Production and Maintenance Employees, and thereby consummate a Collective Bargaining Agreement Please advise the undersigned of your suggested date for our first meeting Under date of April 24, the Respondent's plant manager responded to this letter, as follows We have received your recent letter in which you claimed that your union represents the majority of our employees Circumstances coming to our attention indicate, however, that if our employees are permitted to express their wishes in a secret ballot election, the majority of them would not be in favor of being represented by your union DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 175 It is our understanding that questions of this sort are properly resolved through the procedures of the National Labor Relations Board, and we assume that you will submit this matter to that Board for its determination. On April 24 a petition for certification of representative was filed by the Union and a hearing was held on May 15 (Case No. 9-RC-5875). On May 21 the Regional Director issued a Decision and Direction of Election and an election was held on June 12. Of approximately 300 eligible voters, 81 votes were cast for the Petitioner and 200 against. There were no challenged ballots The Union filed objections to the result of the election on June 19 As noted, the Union filed a charge on June 11 and an amended charge on June 29 in Case No. 9-CA-3222 On October 15 the Regional Director issued a Supplemental Decision, Order, and Direction setting aside the election and dismissing the petition. On November 10 the Respondent filed its request for review by the Board of the Supplemental Decision, Order, and Direc- tion issued October 15 by the Regional Director on the grounds that- (1) There are compelling reasons for reconsideration of an important Board rule or policy, and (2) a substantial question of law and policy is raised because of (in some cases) the absences of, and (in other cases) the departure from, officially reported Board precedent. - The Supplemental Decision, Order, and Direction set forth the objections of the Petitioner Union, in substance, as follows: 1. The Employer, on the day before election, gave a speech to employees. 2. The Employer threatened to discharge employees because of their activities on behalf of the Petitioner and to close the plant-if the employees designated the Petitioner. 3. The Employer threatened employees that if the Petitioner were designated as employees' representative it would refuse to change-any conditions of employ- ment and collective bargaining would be futile and employees would be forced to strike. 4. The Employer interrogated employees as to-their activities on behalf of the Petitioner-and engaged in surveillance of employees' activities in behalf of the Petitioner-and solicited Petitioner employee leaders to resign from employ- ment-and threatened if Petitioner were selected as agent all seniority would be based upon date of membership in, Petitioner. 5. The Employer misrepresented wages and working, conditions existing at other plants of the Employer and otherwise misrepresented material facts peculiarly within the Employer's knowledge. 6.- By these, and other acts, the Employer interfered with its employees' free choice of a bargaining representative 'and thus interfered with, coerced, and" restrained employees in the exercise of their rights under the Act. In his Supplemental Decision, Order, and Direction in Case No. 9-RC-5875 the Regional Director concluded and ordered that: - . - For the reasons and to the extent set forth above, the undersigned sustains Petitioner's Objections 2, 3, and 4, and hereby voids' and sets aside the election herein. The undersigned overrules, Objection 2, insofar as it alleges direct threats to employees of discharge for union activities, and Objection 4 insofar as it alleges surveillance because of union activity or threats that seniority would be based on membership in the Petitioner if the Union won the election. For reasons likewise set forth above, the undersigned overrules Objection 5 in its entirety.12 However, no new election will be directed herein inasmuch as the Petitioner filed an unfair labor practice charge (Case No: -9-CA=3222) against, the Employer herein, and a complaint has issued alleging-violations of'Section 8(a) (1), and (5) of the Act., Under these circumstances, no question concerning representation exists. Accordingly, pursuant to Section, 102.71 of the Rules of the Board, Series 8, as amended, IT IS HEREBY ORDERED that the Petition herein be, and it hereby is, dismissed. 12 Objection 1 is mere reference to the giving of the speech, the content of which is considered under other Objections and requires no ruling. Objection 6 is a broad allegation with reference to other, Objections and employer conduct generally. The investigation revealed no evidence of acts or,condiict requiring or needing considera- tion under this Objection and no separate ruling is either required or indicated with respect thereto. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , The specific acts of the Respondent said to violate Section 8(a) (1) of the Act are set forth in the complaint Substantially, these acts are conclusions as to what is meant by the contents of a notice to employees posted on the bulletin board, a copy of which was mailed to the employees on or about March 1; conclusions as to what is meant by certain language contained in a letter mailed to employees on or about June 3; conclusions concerning the meaning of certain remarks made by the plant manager to groups of assembled employees on or about June 10 and 11; a reprimand to an employee on or about June 8; the conduct of a supervisor on or about June 3 in warning an employee to "leave the Union alone"; and the conduct of another supervisor on or about June 3 in warning an employee against discharge for "putting things (pertaining to the Union), on the bulletin board." The complaint further alleges that the Respondent has refused to recognize and bargain collectively in good faith with the Union as the exclusive representative of its employees employed at its Lexington plant by refusing to grant recognition to the Union as the majority repre- sentative of said employees in the appropriate unit, refusing to meet with the repre- sentative of the Union to discuss wages, hours, and other conditions of employment of said employees, and engaging in conduct designed to gain time to undermine the Union. The General Counsel was allowed at the hearing to amend the complaint to include a charge that the Respondent violated Section 8 (a) (1) of the Act, in that its attorneys interrogated employees during the preparation of the defense of their case and that the nature of their interrogation was unlawful; and in that on or about October 15 the Respondent unilaterally granted its employees a wage increase, addi- tional insurance benefits, economic benefits in the printing department, and, in a speech on that day, promised economic benefits in order to discourage membership in and activities on behalf of the Union The Union did not petition the Board for review of or file exceptions to the Supple- mental Decision, Order, and Direction issued October 15 by the Regional Director. There is before me, then, for disposition, the questions raised by the Respondent in its request for review on the objections to the result of the election and the Regional Director's Order; and the issues raised by the pleadings and the evidence in Case No- 9-CA-3222. B. Questions presented Counsel for the General Counsel has correctly stated the questions to be decided: 1. Whether the Respondent has interfered with, restrained, or coerced its employees in the exercise of their rights guranteed them in Section 7 of the Act, in violation of Section 8(a)( 0 of the Act. 2. Whether the Respondent had a good-faith doubt of the Union's majority status or engaged in unlawful conduct aimed at destroying the Union's majority, and dis- closed a disposition to evade its obligation to bargain in violation of Section 8(a) (5) and (1) of the Act. 3. Whether the conduct of the Respondent interfered with the employees' free choice of a bargaining representative and that the election should be set aside and the- petition dismissed. C. The Company's notice to employees In the year 1963, prior to the beginning of the organizational efforts of IUE, the United Mine Workers had attempted to organize the employees, the efforts of that labor organization being discontinued about February 1964; and it was late that month that management of the plant became aware of the activities of IUE. On or- about March 1, Plant Manager Boyer posted a notice and mailed a copy to each employee. His letter read: TO ALL EMPLOYEES: There is a Notice now posted here at the Plant, which I believe to be of interest and of vital importance to you. In order that you may have the opportunity of" studying it thoroughly and at your convenience, I am enclosing a copy of this- Notice. The notice read: TO ALL EMPLOYEES: As most of you know, there are now two Unions trying to get into this Plant. They are the Mine Workers Union and the IUE Union. Many of you were here when Unions have previously tried to come in. But whether Unions are something new to you or not, we believe that you are all entitled to know clearly and definitely what the Company's position is on this subject: (1) This matter is, of course, one of concern to the Company. It is also, how- ever, a matter of serious concern to you and our sincere belief is that if a Union DIXIE CUP,, DIVISION OF AMERICAN CAN COMPANY 177 were to get in here, it would not work to your^benefiit but, in the long run, would itself operate to your serious harm. (2) It is our positive intention to oppose these Unions and by every proper means to prevent them from coming in here. (3) We would like to make it clear that it is not necessary, and it is not ever going to be necessary, for anybody to belong to the Mine Workers Union or the IUE Union, or any other Union, in order to work in this plant. (4) Those who might join or sign up with a Union are not going to get any advantages or any preferred treatment of any sort over those who do not join or belong to any Union. (5) If anybody causes you any trouble at your work or puts you under any sort of pressure to join any Union, you should let the Company know, and we will undertake to see that this is stopped. (6) No person will be allowed to carry on Union organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge. Anybody who tells you anything contrary to what is stated above is not telling you the truth. LEXINGTON PLANT DIXIE Cup DIVISION AMERICAN CAN COMPANY This notice, alleged in the complaint to be one of the acts violative of Section 8(a)(1), is not noticed by the Regional Director in his Supplemental Decision and Order. Taken by itself, the notice falls within the privilege of Section 8(c) of the Act and does not constitute a violation of Section 8(a) (1)2 Counsel for the General Counsel would interweave the notice posted on March 1 with a company letter dated June 3, discussed below. The notice should not be read in that sense. It was a company statement of position issued and circulated to the employees at a time when, apparently, the United Mine Workers and IUE were competing for membership ; and at a time when no question of alleged interrogation of any other of the acts alleged in the complaint to constitute unfair labor practices had occurred. "The following cases are among those relied on to support the contention of the General Counsel, the facts, briefly stated , being as follows : In Owens-Corning Fiberglass Corporation, 146 NLRB 1492, the employer had discharged an employee on May 15 and posted a notice containing the words "operate to your serious harm" ; in White Oak Acres, Inc., 134 NLRB 1145, 1149 ,- a notice posted by management contained the words "would not woik to your benefit but to your serious harm ," the notice being posted after a threatening speech previously made by the plant general manager , in Burlington Indus- tries, Inc., Vinton Weaving Company Plant, 144 NLRB 245, 247, the words "We would like to make it clear that it, is not now necessary, and it is not ever going to be nec- essary, for anybody to belong to the [union] or any other Union, in order to work for this Company," the notice in its entirety being much stronger than the one herein , and was followed by the discharge of a strong union supporter ; in Surprenant Mfg. Co., 144 NLRB 507, 509, the employer posted a notice which discussed the pending organizational campaign including the statement that management be- lieved that union representation would not work to employees' benefit but to their serious harm , and where the employer posted a second notice in an atmosphere which the evidence revealed , as found by the Trial Examiner, that the employer's director of employee relations delivered a series of 21 addresses to employee groups in the plant conference room which employees were directed by their supervisors to attend ; and where it was found that the series of speeches , together with other activities of the company, impelled the Trial Examiner, in the 'full context of the case, to find that the notices had some bearing on his ultimate conclusion that the activities of the company, all taken together, constituted violations of the Act; while Southwire Company, 145 NLRB 1320, 1331, involves a broad rule prohibiting employees from engaging in effective union solicita- tion on nonworking time, or the distribution of union literature on nonworking time in nonworking areas. The critical times in relation to the circumstances in the instant case are different from the cited cases, in that here the interval between the posting and cir- culation of the notice on March 1 and the first claim of the Union for recognition made on April 22 is too remote and too far removed from any others of the allegations of the violations contained in the complaint to be able to support a contention that the posting of the notice on March 1 had anything to do with the result' of the election held on June 12. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Company's letter of June 3 to employees - On June 3 over the signature of Plant Manager Boyer a letter was directed to and presumably received by each employee of the Lexington plant. This letter is set forth in full, as follows: ' To All Employees of Dixie Cup Division American Can Company: The date of the Labor Board election to decide the question of whether you do or do not want the International Electrical, Radio and Machine Workers, AFL-CIO, Union to come into this Plant has now been set for Friday, June 12. The voting place for this election will be in the rear of the Manufacturing Building near the time clock here in the Plant. The time for voting will be from 6.30 a.m to 7.30 a.m. in the morning and from 2.00 p.m. to 3:30 p.m. in the afternoon of the date named, that is, Friday, June 12. You will be able to vote on Company time without any loss of pay for the time you spend in voting. Many of you were here when the last election was held, and a good many of you were not. But whether you were here at that time or not-we feel that what we have to say to you is important-important to you and to those who are dependent on you. We are writing to you for the purpose of emphasizing, as we tried to emphasize before, that this is a most important and vital decision, for you and your future and the future of your families. For a long while ' now the Union organizers have been talking to you and visiting some of you in your homes. You have heard exaggerations, wild prom- ises, 'false rumors and slanderous and libelous statements against many people who work for the Company. Up to now we have-not been bothering you or worrying you about the matter one way or another. It is our feeling, however, that you should have, the true facts before you, and that you should give serious thought and consideration to these facts before you make up your minds and vote. It is for this reason that we are writing to you on this subject. - ' We realize that this may look like a long letter, but we hope that you will give careful consideration to the things which we will bring out. It may be that you would also like to have some member of your family or some other person whose judgment you 'trust to read and consider the.thoughts we will outline for you in this letter. The Union will probably make some critical remarks about our writing to you on this subject The organizers would prefer that you do not hear or,read anything except what comes from them. Our feeling, on the other hand, is that you should not decide a natter as important as this without considering all-the facts from every standpoint. - Why is the Union after you? Is it because the Union is interested in you, or is it because it is interested in your money9 Your' common sense tells you the answer. -What the Union organizers want 'is MONEY-YOUR MONEY. It is,, of course, for you to 'decide whether you want to let them have some of your money. But make no mistake-it is your money 'that this Union is after! Wherever this Union is voted in, one of'its first demands is for a "check-off".. This, as'you probably know, is an arrangement by which the'Union take&a slice, out of every member's paycheck before 'he ever gets it or even sees it. You should be 'considering whether you would like that or not. What they ask is that, you vote for them and then start paying them! The Union organizers hope to take in the neighborhood of ,$20,000 out of this Plant in the-form-of Union dues during the first year alone-all over and above, whatever initiation fees and''special assessments it may decide to collect or levy against you. . , ' ' And what does the Union say it'can get for you'that you do not already have? You should consider things as they' are' before deciding to vote, for the Union in this election. ' ' ' ' Your wages are already much higher than the' average wages of industrial. employees ' in this entire area. ' When it comes to vacations , your program is as good or better than any we know of anywhere around here-one week after one year of service, two weeks after five years of service, and thiee,weeks after you have completed ten years of service. , As for insurance, you already have life, hospital, medical, surgical and mater- nity benefit coverage for both you and your families, paid for entirely by the Company, as well as major medical which is paid for almost entirely by the Company. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 179 You have a pension plan, which is also paid for entirely by the Company, as well as full seniority protection, shift differential and excellent working conditions. You should not forget the close relationship and spirit of cooperation that has existed between us. You have always been free to come into the office and discuss your problems and have them worked out for you. All of the foregoing benefits you have gotten without the Union and without paying Union dues for them. It will not take any Union to keep these benefits for you. Often times people fail to realize when things are going well for them. The organizers who work for the Union try to turn you against the management of this Company in every way they can. But who do you believe is really more interested in your welfare-we who are trying to operate this business, or these organizers who are here trying to collect Union dues? Do you think you will do better with us whom you know, and with this Company which keeps this opera- tion going and meets the payroll or with these Union agents who are here today and gone tomorrow? Always you should bear in mind that it is the Company which furnishes your job and your pay check-not the Union. And always you should bear in mind that this Union will never furnish you a day's work nor a cent of pay. Now we, of course, do not mean to claim that everything is perfect here. We do know that we are constantly trying to improve things and we hope to keep on improving, and we would like to emphasize, as we have often tried to emphasize' before, that if there is anything you wish to call to our attention at any time, there is no reason why you should not do so, and we will sincerely welcome your doing so. The Union may have been telling you that it can come in here and force us to do this or that. We want you to know, however, that if the Union is telling you this, it is not telling you the truth. The truth about the Union is that it has no magic power to make things go the way it wants them to go. Of course, it can promise anything but carrying out its promises is an entirely different matter. When the organizers tell you they are going to come in here and make us do this or that or the other, they are seriously misleading you. Sometimes people have the idea that all they have to do is vote for a Union and then automatically higher pay and benefits of various kinds will immediately take place. Such an idea as that is absolutely in error. Voting for a Union does not automatically bring any increase or benefit to you whatever. And if the Union were in here, there would still be only one way it could try to force us to do anything that we were not able or willing to do and that would be by PULLING YOU OUT ON STRIKE. Now, without intending to seem abrupt, we hope you will realize and understand in advance that there is no intention of yielding to any such pressure at this Plant-ever. Everybody knows that WHERE UNIONS ARE IS WHERE STRIKES GENERALLY OCCUR. And everybody knows that strikes mean trouble and dissension , strife and misery, lost work and lost pay. From time to time you have heard and read of trouble that has come with Unions at other places- trouble that often ends up with violence and bloodshed. You know about various strikes in which people pulled out by their Unions have stood around day after day and week after week on picket lines, while their expenses meantime continued, their grocery bills mounted and obligations piled up on their homes, their automobiles and all their other belongings. And generally when the Unions have given up those strikes and told the people to go on back and get their jobs if they could, what was the net result for them? What did the Unions gain for the people who were involved in those strikes? The answer as a rule was absolutely nothing except trouble and misery, debt and regret. It won't do to assume that this couldn't happen right here! The Union has been trying to mislead you into thinking that the Company's employees at our unionized Easton, Pennsylvania and Fort Smith, Arkansas Plants receive much greater benefits than you do. This is a false and very mis- leading idea. We assure you that when you consider the relative periods of time during which these Plants have been open, you will find that you have fared much better here without a Union than the employees at those Plants have with a Union-and you have not had to pay one penny of Union dues for these benefits. We invite you to check into this and see that what we are telling you is the truth, and we would sincerely welcome your doing so. 221-374-GC--vol. 157-13 '180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are all striving to maintain and improve this business in an effort to assure its success on into the future and thereby also to assure jobs for you and security for you and your family. But a successful future for this operation and security for you and your job here cannot be accomplished by any Union. It can only be accomplished through your patience and your loyalty and cooperation-and by all of us working and pulling together-not by our pulling apart. Bear in mind that you now have the individual right and freedom to come in and settle with us personally any problems you may have. But if this Union were to get in here, this would no longer be true. The freedom and right to deal with us on an individual basis would be taken away from you and put into the hands of the Union. Look around you and see who it is who would be running the Union in this Plant anyhow. Who would be the shop stewards and committeemen who would handle your affairs and the affairs of all other employees if you bring the Union into this Plant? Obviously it would be the people who have been active in pushing this Union here. Are these individuals the kind of people you would consider capable of handling your problems and into whose hands you are now willing to trust your business and your affairs? You may have been told, or you may have the idea that if you don't want the Union, then you should just keep hands off and let those who do want it vote for the Union and bring it in if they wish; or that if it should turn out that you don't like the Union, you can get rid of it any time you desire to do so. Now these are very misleading and mistaken ideas. If this Union were to get in, then it would represent those who do not want it as well as those who do want it, and you could not just throw it out at will. You will be bound by its decisions whether you like it or not. You may also have been told that those who join and vote for the Union are going to get some advantages over other employees. We want you to know that this is absolutely in error. Those who join or belong to the Union are never going to receive any preferred treatment over those who do not belong. You can absolutely depend and rely on this:-It is not necessary, and it is not ever going to be necessary, for anybody to belong to the International Electrical, Radio and Machine Workers, AFL-CIO, Union, or any other Union, in order to work in this Plant. So when this election is held you can see the importance of everybody vot- ing. Don't stand aside on the idea that the outcome won't affect you. It will affect YOU. Take a hand in the matter. Help make it go the way you want it to go. Otherwise, you may find yourself saddled with a Union you do not want. BY ALL MEANS VOTE IN THIS ELECTION. The voting arrangements will be simple. You merely go to the voting place and there you will be handed a ballot. Then you go into a private booth which will be provided there and mark an "x" on the ballot-either under "Yes", for the Union, or under "No", against the Union. Then you fold the ballot and drop it in the ballot box. Do not sign your name or put any mark on the ballot other than your vote for or against the Union. Nobody is entitled to know and nobody will know how you vote. Bear in mind that all of you who are against the Union are by law entitled to oppose the Union, and to talk and work against it, if you wish to do so. Remember also that in this election, you will be free to vote entirely according to your own judgment and convictions on the election day. You can vote against the Union even though at some time or other you may have signed a Union card. We hope that you will think carefully about all these things. As matters now stand, you have a steady job at good wages and a good place here to work. We all hope to make things even better. Do you see any good reason to bring this outside Union in, pay your money to it, and at the same time run the risk of tearing apart everything that you now have? If you will study this whole matter thoroughly, we believe you will surely come to the conclusion in your own good judgment:-That you stand to lose if this Union were to get in here and that you stand to gain by keeping it out! Sincerely yours, F. E. Boyer, Jr. DixiE CUP DIVISION AMERICAN CAN COMPANY DIXIE CUP, DIVISIOI- OF AMERICAN CAN COMPANY 181 The General Counsel contends that the statement set forth in the notice of March 1 and certain statements contained in the letter of June 3, together with state- ments made by Plant Manager Boyer in speeches later discussed herein, all were intended to interfere with, restrain, threaten, and coerce the employees, and to show them that the Respondent would not recognize or bargain in good faith with the Union. Therefore, it is reasoned that the Respondent's refusal to recognize the Union and its coercive statements must be considered in connection with each other; that each affects the other, "and each, taken together," shows the Respondent's intransigent and willful opposition to the Union. In asserting that the letter of June 3 is such as to operate to the serious harm of the employees and interfere with, restrain, and coerce them in violation of Section 8(a)(1), the General Counsel has excerpted certain sentences out of certain paragraphs- ... and if the Union were in here, there would still be only one way it could try to force us to do anything that we were not able or willing to do and that would be by PULLING YOU OUT ON STRIKE. Everybody knows that WHERE UNIONS ARE IS WHERE STRIKES GEN- ERALLY OCCUR. And everybody knows that strikes mean trouble and dis- sension, strife and misery, lost work and lost pay. From time to time you have heard and read of trouble that has come with Unions at other places-trouble that often ends up with violence and blood shed. ... What did the Unions gain for the people involved in those strikes? The answer as a rule was absolutely nothing except trouble and misery, debt and regret. It won't do to assume that this couldn't happen right here! . but a successful future for this operation and security for you and your job here cannot be accomplished by any Union. It can only be accomplished through your patience, your loyalty and your cooperation-by all of us work- ing and pullmg together-not by our pulling apart. It is not necessary, and it is not ever going to be necessary, for anybody to belong to the International Electrical, Radio and Machine Workers, AFL- CIO Union, or any other Union, in order to work in this Plant. Bear in mind all of you who are against the Union are by law entitled to oppose the Union, and talk and work against it if you wish to do so. Do you see any good reason to bring this outside Union in, pay your money to it, and at the same time run the risk of tearing apart everything that you now have? . that you stand to lose if this Union were to get in here and that you stand to gain by keeping it out.3 E. IUE written communications By notice dated May 18 to the employees, the IUE-AFL-CIO organizing com- mittee circulated the following: Friday, May 15, 1964, the National Labor Relations Board (Government) held a hearing to determine a date for a U.S. Government Supervised Secret Ballot Election. As was not entirely unexpected, the company refused to con- sent to a quick election. In other words, they stalled, which they have a legal right to do, as we could stall if we were afraid of the results of a Secret Ballot Free Election. Even though there were no points in dispute, the entire hearing) lasted 1 hour and 10 minutes, was exactly seventy minutes long. This Govern- ment hearing. The Company wanted more time until the election, so that they would have time to change you employees' mind about the Union, or in other words, try and Brainwash you all They wanted to continue their acts as they had been guilty in the past and still going on. The only thing the company will gain by their stalling is a little more time. Two of your co-workers were also repiesented you employees at the hearing along with myself (Bill Edwards). You can rest assured that they will give you the true facts and not false state- ments such as you have been subjected to by your Local Management. I wonder what the General Management of the Dixie Cup Parent Company, the American Can Company, will say and think when they were advised of the activities of your Local Dixie Cup Management. I feel sure they do not and will not approve of these goings on. These can and will be stopped and cor- rected by your IUE Union. 8 The General Counsel places the same reliance on the cases cited in footnote 2, above, to support his contentions as to the impact of the contents of this letter. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I sincerely believe that if the Secret Ballot Government Supervised election were held this week, that you and your IUE Union would win by 80 percent, and I feel this majority will increase day by day. If you are one of the few who haven't signed a card, do so today. I am sure one of your co-workers will supply you with an Application for Membership IUE Card. Join and Vote IUE for Job Security and Justice. In a notice called Important Announcement dated May 27, the Dixie Cup IUE organizing committee announced: The National Labor Relations Board (US Government) will conduct and supervise a secret ballot election at your plant (Dixie Cup) Lexington, Ken- tucky, Friday, June 12, 1964, between the hours of 6:30 a.m. to 7 a.m. for the night shift and 2 p.m. to 3:30 p.m. for the day and afternoon shifts, to deter- mine whether you want a union of your own choosing IUE-AFL-CIO. This labor board election is definitely secret and your election, not the Com- pany's, Section 7, of the National Labor Relations Act guarantees you the right without any interference from the Company to have a union of your own choosing to bargain collectively for your own economic well-being. Use your choice wisely. Don't allow anyone to vote against you and your own family's future and well-being. A vote YES IUE gives you the opportunity to eliminate the boss' favoritism. It gives you not only job security, but guarantees justice, seniority, better wages and working conditions. Think of the many carrying-ons that have been a practice at your plant, and that alone would mean a Yes IUE. You will be receiving THE COMPANY'S LOVE LETTER very shortly with all kinds of phony promises, then think back and ask yourself why haven't these practices been in effect before now. If the IUE can do this now enforcing [sic] the Com- pany's hand, what can it do for me as a worker after we vote YES IUE? Under date of June 2, IUE Representative Edwards addressed a letter to Plant Manager Boyer, as follows: Please be advised that I have been reliably informed by a number of Dixie Cup employees whose information cannot be honestly questioned , that you in your position as general manager are using the Captive Audience Technique to make ridiculous statements that are either deliberate misrepresentations, or are because of ignorance, frankly I am of the opinion that they are a combination of both. Mr. Boyer since you attempt to appear to the Dixie Cup Employees of some sort of an authority on Labor-Management Relations, I challenge you to a debate before all the Dixie Cup employees in your plant at such time that suits your convenience, I would like to state however, that I feel reasonable certain that you will either ignore or refuse this challenge. Don't you think, Mr. Boyer, it is time to either put up or shut up, and allow the employees to hear the Union's side? In closing allow me to state, I am making copies of this letter so that the Dixie Cup Employees will also know what to expect or not to expect from you. This letter shows that carbon copies were sent to employees, certified mail, return receipt requested. Following the June 3 letter of Boyer to the Company's employees, on June 8 the IUE organizing campaign committee addressed an open letter to all Dixie Cup employees: 4 Open Letter To All Dixie Cup Employees: I would like to advise you all that a week ago I challenged your plant manager, Boyer to a debate before all of you employees on the issues at stake in this all important Labor Board Election to be conducted by the government, Friday, June 12, 1964. As of this date Boyer hasn't shown the nerve to accept this offer of a debate! What is he afraid of? Does he prefer spreading false infor- mation to employees who are at work and have no choice but to listen to him, knowing that he is safe from true information and feeling no one outside of the person being fed these false statements , is there to show him in his true light? 'The record shows that as of the date of this letter the Union held considerably less than 200 signed authorization cards (between approximately 90 to 180) from employees, including former employees, some concededly invalid, and others challenged at the hearing. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 183 Allow me to answer his fear of an honest debate. He is aware that his seven pages of so-called "things" are misrepresentations or shall I say untruths from the beginning to end. I personally think Boyer has placed himself and his company in a position that they are subject to instigation of libel proceedings because of the following statement next to the last paragraph on page 5 of his letter, quote: "Are these individuals the kind of people you would consider capable of handling your problems and into whose hands you are, now willing to trust your business and your affairs." Those are Boyer's words and he underscored them to impress you! He meant each and every one of you who have been active in the IUE Campaign for better wages and job security and working conditions, which amounts to better than 200 signed IUE members. I have strongly urged to a number of you, IUE members, that immediate legal action be taken and have suggested the name of one of the best attorneys in the state of Kentucky to represent you. I ask you, as fair-minded Kentucky men and women, to look back over the last few years at Dixie Cup and its local man- agement. Ask yourself the question, how could this local management make such a charge against you honest God-fearing people? I would like to answer all of his misstatements of that seven page letter , but space will not permit, nor will time. Do you recall the statement on page 3, where he referred to organizers ? This is new to me. I thought I was the only organizer or IUE International Representative on your Dixie Cup Campaign. I sure don' t recall of ever trying to collect dues form any of you. This statement and many other false statements such as strikes, dues, benefits and many others I will gladly discuss with you as individuals or together. I think I could reach more people with the truth in the debate I have challenged Boyer to before all of you people, so that the true facts will come out. I would like to say in closing that you who have signed IUE cards are pro- tected by all the strength of the IUE-AFL--CIO, and he dare not discriminate against you! I hope that you will think of what job security and IUE protection means to you and your family. Don't be misled! Vote YES for IUE and yourself. June 8, 1964 IUE Organizing Campaign Post Office Box 1108 Phone Number 277-7604 Lexington, Kentucky Again, over date of June 11, the IUE organizing committee circulated another sheet: STATEMENTS OF FACT FOR DIXIE CUP EMPLOYEES Friday, June 12th, 1964 is one of the most important days of your life for your future and your family's. This is a day that can help determine whether you will vote YES for IUE and a voice in what your working conditions will be for the future, such as higher wages, job security, seniority and many, many more conditions of employment which now you do not have a voice. These many conditions are negotiated after you have a victory Friday by voting over- whelmingly YES IUE. There have been many false statements made by Company Stooges in your plant within the last week or two about strikes. You should know the true facts about these ridiculous statements. Just look around and consider who these people are that are speaking false strike statements. Allow me to give you the really true facts. The only way a strike can be called first you are the Union, and before any strike action can be taken you must have a meeting to vote on any such proposal which is brought up by you, the worker, in Dixie Cup. If after debate and discussion by you members, there is a motion put on the floor and it takes a majority vote and if a majority of you workers vote for a strike, it doesn't mean you stop work. Instead, the action of you people is then referred to your District IUE President, who in turn makes a complete study and inves- tigation. After this study he finds your action is proper, he refers his findings to the International President in Washington, D.C. who also makes a complete investigation and study. Bear in mind during this period of studies and investi- gations by the District President and the International Unions President, you haven't stopped work but are still working at your jobs. Also, during this period the United States Federal mediation and conciliation service has entered the picture and will use every power at their command to settle the pending dispute without any stoppage of work. Although, remember, the company is -I84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also part of the dispute or there would have been no strike vote in the first place. But going a little farther on the IUE procedure for strike action, after the International President has completed his investigation, he also finds the workers are right in their original action. He approves your local unions action, which means you as a member and a Dixie Cup employee, the IUE immediately approves strike benefits from our strike fund, which is now many millions of dollars.- All in all strikes are very hard to get approval on. Frankly, I feel some of these stooges should learn what they are talking about before trying to set off wild ideas and rumors. I hope when you go into the polls and vote in the government supervised secret ballot election, that you will consider the fact that you when voting, YES 1 UE, you are voting not only for yourself, but your wives, husbands, and children for a better and more secure life, something that you can plan your future on. Don't let them down. Vote YES IUE for all of you. Good luck and God bless you all. IUE Organizing Committee P.O. Box 1108 Phone 277-7604 Lexington, Kentucky June 11, 1964. The notice and letters of the Company and the several written communications of the Union to the employees in general stated arguments for and against unioniza- tion by employer on the one side and the Union on the other, and presented reasons why the employees should or should not vote for the Union The advantages of collective bargaining were stressed on the one side and the Company's reasons for opposing the Union were-stressed on the other. It is a matter of opinion as to which side was the more temperate or intemperate in stating its side of the case. F. The speeches of June 10 and 11 by Plant Manager Boyer Employees in three different groups, at convenient times, were called together in the plant at the instance of Plant Manager Boyer on June 10 (12 noon and 1 and 8 p m.), and another group on June 11 (at 4 a.m ), at which times Boyer spoke to them concerning the union organizing campaign from the Company's point of view. The speeches were recorded, and a transci ipt of the recording of the 1 p m. June 10 speech follows. The context is the same, I understand, as that of the other three speeches. TRANSCRIPT OF A TALK BY F. E. BOYER JR., PLANT MANAGER TO EMPLOYEES OF THE LEXINGTON DIXIE PLANT ON JUNE 10, 1964 As I told the other group, we are taping everything I say. We don't mind being quoted, but we don't want to be misquoted. This way we have an accu- rate record of what is said during the next hour. Sorry we had to inconvenience you the way we had to, but we are growing and as a result, there is not room in here for all the people from the day shift The next time we build, maybe we will build a cafeteria. We will have to. For some months now, you have been subjected to a rather strenuous cam- paign designed to convince you that you need the IUE to represent you in your association with Dixie Cup. During the course of- that three months, you have been subjected to many, many accusations aimed at us. You have been made false promises. and in some instances you have been told lies, and in some instances you have actually been threatened. One of the most interesting things, I think, is that one of the first flyers you received from the union pointed out that it was your right to join the union; but let me ask you a quick question. Has anybody from the union, either the man at the end of the road or his two lieutenants, told you that you have the right not to belong to the union' The answer is nog Instead they have told you, you are stupid, you are ignorant, you are a scab, and some other things rather uncomplimentary if you don't agree with them. So from the very begin- ning, we see what kind of a group we are dealing with. You have to agree with them to be right There is only one side as far as they are concerned. Their side. But we disagree. We think you have the right to make up your own DIXIE CUP , DIVISION OF AMERICAN CAN COMPANY 185 mind. To hear the facts, to see the facts,,and then make up your own mind which you want; and we will protect that right. The right for you to hear both sides of the story and then make up your own mind on what you think is best for you and yours. Now one of the things that has been a bone of contention during the cam- paign has been the Easton Contract I have had people ask me questions about it. We have been told there are riders attached to this thing, it is obsolete. Well I have a wire I want to read you from Mr. Bud Bashman who many of you know. He is the Vice-President in charge of Production. It is addressed to Floyd Boyer "For your information, the agreement entered into September 18, 1961 between Dixie Cup Division of American Can Company of Easton, Pennsyl- vania and Phillipsburg, New Jersey and United Papermakers and Paperworkers, AFL-CIO and its local union 412 covers the three year period from Septem- ber 1, 1961 to August 31, 1964." That's this little book here. It says so on the front "This agreement included a 5 cents per hour increase in all rates of pay effec- tive September 1, 1962 and a 5 cents per hour increase in all rates effective September 1, 1963. Additionally future service pension benefits were increased from $1.50 per month to $2.00 per months effective September 1, 1963. All other terms of this agreement continue unchanged and in effect until termina- tion date " The end of the wire. It is signed by W. E. Bachman Jr., and the termination date of this contract is August 31, 1964. That's this coming August. This contract is in effect right now. All the rates in here have had a nickle added in 62 and a nickle added in '63 which means you add a dime to each rate in this book; and isn't this what I told you, or isn't it? This is what I have told you. Now they tell you that Easton is making 38 or 40 cents an hour more than you, and that's a lie! They are not. I have some figures here and I won't bore you with a lot of statistics, but hear them and hear them well because these are the facts regarding rates in the Dixie plants. Let's start with Fort Smith where they have had a union for 17 years, and let's compare it with Lexington where we have been in operation less than 6 years and haven't had a union. The average man in Fort Smith, and this includes shift differential, no overtime, but any shift differential or bonus that is paid, the average man in Fort Smith earns $2 23 an hour. The average man in Lexington is making $2 39. Females! The average woman in Fort Smith is making $1.97 and in Lexington she is making $2 096 an hour-that's $2.09, $2.10-call it what you want. We will call it $2 10. She is making $1 97 in the Fort Smith Plant after 17 years of union, and you people here are averaging $2.10 an hour including shift differential in all plants, bear in mind-13 cents an hour more. The men are making 16 cents an hour more, and they have had a union for 17 years. Now lets go to the Easton Plant The average male in Easton-these are taken from Accounting Payroll. Ourley back there, Dave Herstime, worked up ours based on the number of hours worked and the amount of money paid, and this is how he got this average. Easton's men average $2.38; in Lexington it is $2 398 or you can call it $2.40. The average man earns more here. The female rate in Easton is $2.126; $2 13 is what we will call it . In Lexington it is $2.10-3 cents difference They have had a union in Easton for 27 years, and those are the average rates paid in Easton today . This is dated April 1st, and supplied to me by the Accounting Department This pioves that the statement that Easton is making 38 or 40 cents an hour more than you people is a lie' Now one of the things they have told you is that you need a union to progress. Well the figures I just gave you put the lie to that. You are progressing a lot faster than Fort Smith and Easton; but let's take a look at the Lexington Plant in the last 3 years. The average man was making $1.91 an hour in May of '61 The average male is making $2 40 now. The average female was making $1 70, and you old timers can remember this 3 years ago. The average female now makes $2 10 So while Easton was getting a pickle an hour in '62 and a nickle an hour in '63, our rates went up 40 cents. This is true. So once again we have put the lie to the statement that you need a union from outside to im- prove your rates. You boys who have been here 3 years know what you started at and know the improvement you have received in the last 3 years. Union Boy ,kf 1 started at $1.78; now he is making $2.42 I think this is pretty good improvement for less than 3 years. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are proud of it. We are not ashamed of our rates. We are proud of what we have done. So let's go back to the plant comparison. I forgot Anaheim, and I should never forget Anaheim. That plant has been there less than 12 years. It doesn't have a union. Remember I said the average Easton rate is $2.38; for the men in Anaheim it is $2.47; and the women in Easton are making $2.13 after 27 years with the union-in Anaheim they are making $2.16. Now how much proof do you need that the statement that you need a union to get the money due you, is not true? This is proof positive from Company records by the Accounting Department, and they can be proven if anybody wants to follow on back through and have them substantiated. So these figures prove that this plant here is paying more than the Fort Smith Plant that has been union- ized for 17 years, and we are not far away from Easton. We haven't been here 6 years yet. We are that close to Easton-4 cents. The average rate, all men and women put together in Easton is $2.31 and ours is $2.26-$2.307; $2.262. Actually it is 41/z cents per hour. Twenty-seven years with a union in Easton and they are making 41/2 cents an hour lump them all together more than you are, lump all you together. And this is in Pennsylvania-a highly industrial area. We are just getting that way. Remember 5 years ago? Where did you go look for work? But Dixie is here now; Westinghouse is here; Trano is here; and with a couple more coming in. And we are proud to play a part in creating the industrial growth in Lexington. And we will be proud; we are today and we will be proud in years to come of our rates as compared with the area, with the industry, and with other plants in the Company. So you don' t need a union. as this proves, to get what is coming to you from Dixie. One other little thing, they seem to point this thing at the mechanics. If you were in Easton, you are going to get 38 or 40 cents an hour more. These figures put the lie to that. Well, let's talk about the little training program they have going for them in Easton. Now Everett, suppose you were going to go on a training program in Easton instead of in Lexington. The first thing you do is to sign a contract-you sign it, the company signs it-the union signs it-right Sweeney? Matt here? And for 4 years you don't have any seniority. They can take you and put you in any section they want, they can put you on any shift they want for 4 years while you are on that training program. I don't mean to imply that they take advantage of this, but this is their prerogative to move you around, and at the end of 4 years you are making $2.48 an hour as a cup machine mechanic. Do you know what you are going to be making at the end of 3 years? $2.49, right? Our program here is that at the end of 3 years you make $2.49, and in Easton after 27 years of union, after 4 years, you make $2.48, and this is a contract. This is the truth! Once again we have put the lie to this 40 cents an hour more in Easton bit. Now let's talk about the fringe benefits. This has been a bone of contention. I have had people ask me about the vacation program in Easton. They have been told that they get 2 weeks after 2 or 3 years, and I have said this is not true. This is the contract and I was told, "No, that's not the contract, that's an obsolete contract; there are riders connected to it." You heard what Mr. Bachman said. This is the contract that is in effect. Let me read you the vacation program that is in effect in Easton. "Employees with 1 year of service-1 week Employees with 5 years of service-2 weeks Employees with 10 years of service-3 weeks" And that's exactly what you have! So the man or the woman who told you that they have got a better vacation program in Easton was lying to you, wasn't he? You had better believe it! Holidays? You get 8 holidays. So does Easton. Fort Smith-they are going to negotiate next September for their 8th holiday. Now they have had a union for 17 years, but they are going to nego- tiate for Good Friday. You have had it for 2 years. The vacation program is the same; the pension program is the same here as it is in Easton. Now did they lie or didn't they? They have been telling you that the money is bad here and the fringe benefits are bad here compared to Easton, and they lied on both accounts! Now one of the things the union tells you is that you need a union for secu- rity. Let's talk about it. Every Dixie plant that has a union, has had strikes. No Dixie plant without a union has had a strike. Now this in itself tells a story. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 187 The Fort Smith Plant, 17 years ago, were sold the same bill of goods they are trying to sell you today-get the union in and you are going to get security, more money-you know that bit. So they bought it; only to rue the day they bought it; but they bought it, and they ended up on a 73-day strike in Fort Smith because the union people told them, "We have got to be tough with the Com- pany; we will get what we are after; we will get 25 cents an hour; we will get this; we will get that." The Company said we are in the paper converting busi- ness , we can't compete with steel and automobiles; we have to keep the cost of Dixie down. Mrs. Housewife will buy them at 39 cents a tube. She won't buy them at 99 cents. We have our limitations. We pay fair money, but we make no pretext that we can pay $3.50 or $4.00 an hour. You want this you go to Detroit and work in the Auto Works or the Steel Mills; and we tell them this is the best we can do. But the union representatives say "Hal" " We will get them." This is what they did in Fort Smith; and you know, 73 days later they went back for exactly what the Company offered them initially before they went on strike. The Chicago Plant had a strike. They were out 28 days before they went back for what Dixie originally offered them. And the Easton Plant has had 2 strikes. They have all learned the hard way that what I am saying is true; that when Dixie says this is what we can pay; this is what we can do; this is what we will do-we mean it! And no union, IUE or any other union , is going to make Dixie roll over and play dead. They would have you believe they are going to come in here and take over; ha!, this isn't true. No union is going to run a Dixie Plant. They may harass it, but they will never run it. Now is this the kind of security you want? Is this the kind of intelligent leadership you want? And mark my words, and you know from what you have heard, this can happen here. They want a union shop. There are notices on the board, or there were. You received a letter that said it would never be necessary to join a union to work in the Lexington Dixie Plant, and we mean it! So if the IUE got in here and said , "We want a union shop"-they have told you that they would pull a strike and get their union shop. Is this the kind of leadership you want? Now let's talk about the Chicago Plant. We had a plant in Chicago back in the 1940's. There were 700 people working there; then it went to 600; then to 500; and then it went to 400; and then finally the Chicago Union did the only good thing it ever did-it created jobs for you in Lexington because we shut the Chicago Plant down and moved to Lexington. Now we could have moved the 'Chicago Plant 30 miles south when we decided to get rid of the old building, but we came 700 miles south or whatever it is, to get away from Angelo Insiso and his union in Chicago. Notice they talk about responsible leadership? Let's talk about the union organizers who sold the Chicago Plant their bill of goods. "Indict Insiso In $46,000 Union Theft." Now Angelo Insiso is a known gangster and hood in Chicago, and he had 22 unions in Chicago including Dixie Cup. Now this was just recently in the Chicago papers, but the gimmick here is that they can't prosecute him for the $46,000 theft. You know why? He is in prison serving 10 years for stealing $420,267. As God is my witness. You knew him, didn't you Karl9 This is true! This is true. This man was a known hood, but he was the guy that came in and told them you need me to protect you from Dixie. Heaven help them! You know what he did? He convinced them that the Hos- pital Insurance Program that they had in Chicago was no good, and he set up a deal where they would pay-this was not free-they would pay into the union treasury for hospital insurance-and thats the $420,267 he stole from Dixie and 21 other companies. But like I said, this man told them "you need me." Sure they needed him? Like a hole in the head. Now lets get a little closer. Some of you were here 3 years ago when we had this union bit, remember? Remember Mengel Box down around the corner? They sent a flyer out to you people; it said, let me read part of it. "The employees of Mengel Boxes came into U.P.P.," this a paper organiza- tion, "and the men and women of the other new plants joined the union of their industry because they wanted security of their job set forth in a signed union contract. Seniority protection is the basic need of most men and women, and only by becoming organized can all guess work be removed from your job." 188 DECISIONS Or NATIONAL LABOR RELATIONS BOARD "The employees of Mengel Box know the United Papermakers and Paper- workers from actual first hand experience at the bargaining table, and from the handling of our grievances with the management during the past two years. Local 729 joins with the U.P.P. members at Easton in recommending the U.P.P. to the Lexington employees of Dixie Cup." It is a warehouse! You know where it is. It is down around the corner from Square D, and it is a warehouse! They ain't making box one down there. Security! And that's the outfit that told you people 3 years ago you had better join, you needed them for security. They aren't even in operation. How about Hytrenies right across from Square D-76 or 80 employees. Ada's son worked there. Red, here? He worked there. They went union. What was it? Three months before they moved out of town? Well, it took 3 months to move the machinery back up north. Well, seriously, this is security. That's what these people are telling you. You need a union for security. A union can't do a damn thing for you. Your security is based on the Company's pros- perity. Now, I am not intimating for one second that we are moving out of Lexington, because we are not. Three years from now or 5 years from now, we are going to have that warehouse, that manufacturing building and another- no the next warehouse is down at the end-the L Shape. Seriously, in 5 years we are going to have 2 more warehouses and a manufacturing building. There is going to be 500 of you here instead of 300 and maybe 600; I don't know. We are going to stay and we are going to prosper; and your security is based on our prosperity. The Union never has provided you with a days work; the union never will provide you with a day's work; the union will never pay you on Thursday. So when they talk about security, think about these things. The union doesn't mean security! Now one more word about security and the IUE. You read in the papers, you see on TV, and you hear on the radio about the trouble at the Essex Wire Company in Lansing, Michigan . They are now negotiating their first contract, and they have been out on strike for over 100 days. This is security? Now, maybe some people, and we have two lieutenants of the man at the end of the road-the young lady has said in the cafeteria that she doesn't have to work; she uses her paycheck to play poker with on Saturday night. The boy- he told Sweeney he has another job lined up in September. He doesn't care; but you people care! You are going to be here 5 years from now-10 years from now-20 years from now. They may be gone, but you are going to have to live with what they give you if you let the IUE come in here. They take you for fools. You know it! I tell you they take you for fools. We all do foolish things, but we are not fools! And I don't think for one minute that they have gotten through to you with their lies and false promises. Now we have covered rates, we have covered fringe benefits, we have cov- ered the security of it, and I could stand here for hours if I brought all the notes in from the phone calls I got from you people and the contacts in the plant when you stopped and asked me questions and told me what was happening. I could talk for 4 hours, but I have a couple of things here I want to touch on that indi- cate the tactics and the type of campaign that this has developed into. You know, during the past couple of months, many of you have asked me, "Boyer , when are you going to answer these people. When are you going to tell them your side of it." I have said, we believe in giving them enough rope and they will hang themselves. Ain't they hanging high! You had better believe it! Now it is our turn to give you the facts, and I would be amiss if I didn't point out some of the tactics that they have been using. Before I get into that though , there is one other thing I would like to point out. This man has been out here talking to you for a long time now about how much you need him. We covered in the letter, and I would like to mention it once again that he is out there for one reason and one reason only-what you can do for him! Not what he can do for you! If he was interested in saving mankind from industry, he would be up in Georgetown in the Pencil Works, or some other place, or over in the tobacco re-dryers-I have never been in one, but some of you people have told me what it is like-or in Paris in the mill up there where they are making a buck 40. This is where he would be if he was trying to improve the lot in the working class; but no, he is down here where you are making two bucks an hour and wants his cut . This is what it amounts to! Now, you know if you paid him $5 a week or $5 a month , this amounts to approximately $20,000 a year; and as we grow there will be more $ 5's added DIXIE CUP , DIVISION OF AMERICAN CAN COMPANY 189) into this thing every month. So we are talking about-and 10 years go fast- a quarter of a million dollars in the next 10 years would go into the IUE treas- ury. In the next 20 years, a half a million dollars out of your pockets. I have a suggestion. Dennie take that $5 a month and put it in the bank. At the end of 20 years or 18 years when the kid gets out of school, take that two grand and put him through college. You know, that half a million dollars would do you people a Hell of a lot more good towards putting your kids through school than it will do that man-lining his pockets out there and the union he stands for. Because that half a million dollars would buy you nothing but heart-ache, misery, and you would have a lifetime of frustration, and you would wish you could get back Friday, June 12th if you ever got that union in. Put it in the bank. Put the kids through college-it will do a lot more good. They have told a lot of lies. For example, how many of you heard this one, your seniority with the company is going to start with the date you sign a union card. Hal Don't you believe it. Your seniority started the day you came to work with Dixie and nobody, no union, is going to change that. So don't believe it when they tell you; but they use this as a trick to get you to sign cards, and some of you signed them for this reason. You didn't know. You were going to get in, in case they get in. Now you know it wasn't necessary; but this is another little trick they use and another little lie they told. Your seniority started the day you came to work here and nothing is going to change it. How about the one that the Darlington Plant is being shut down and they are going to bring mechanics in here and you guys don't have a chance. The Dar- lington Plant is making more cups now than it ever did. They just built a- Curley, what did the Plate Plant cost down there? 2 or 3 million? I don't know. They spent 2 or 3 million dollars for a Plate Plant in Darlington. I wish they would shut it down-look at the dogs-in first place. Seriously, the Dar- lington Plant is there to stay, and we are not going to move you guys out to make room for people from Darlington. We did bring help in. We brought Sweeney in; we brought Vernon in; and we brought J. C. in; and we brought Doyle in. I will take the responsibility for that. I think we needed them, but as far as them telling you we are going to be flooded with outside help, this is not true. But it was another trick to get you mechanics into signing cards to protect your jobs. They use every trick and every tactic there is. Did you hear the story that when the union gets in, the foremen won't be able to work. Well, to you people in Treating now. Do you think we are ready to tell Sweeney and Henry Stumpel to lay their tools down? Do you mechanics think we are ready? You had better believe we are not. Someday, yes. Henry can wear a white shirt and tie and Sweeney can wear a tuxedo, for all I care; but right now we need them working and you know we do! How about the cup floor. Do you think we are ready to tell Matt, J. C., and Louey Monehak, "Look, back off, don't do anything." We are not ready, and you know it! Someday, yes, but certainly not now. So that's not true. This is another gimmick, but this is what the union is going to do. Otis was in the last meeting. He would just love to have this-the poor devil is working 70 hours a week trying to get his Mira-Glaze machines going. He would just love to go on a 45 hour a week with a white shirt and tie. This is another little gimmick they use. How about the pressure, if you don't sign a card now it is going to cost you $25 or $50 when we get in. So some of you signed cards. You weren' t going to take any chances. I don't blame you. Hell! It don't mean a Damn thing if you signed a card and you know it! I don't blame you. A lot of them, espe- cially the younger ones who have never been exposed to unions say "What's going on." They don't know. Well they do now. So this is another little trick to get cards signed. Another one was, and this is a threat-when the union gets in we are going to make it tough on those that didn't sign cards. How many of you have heard this one? Lots of you. This was especially true on the younger help on the afternoons and the night shift that didn't know any better. "Mr. Boyer, can they do that?" "When they get in, are they going to fire me?" I said that the IUE will never hire and fire, but they had these people believing it. They also have said they are going to get rid of some of the foremen and they are going to get rid of Boyer. Well, I have got news for you. I am going to be around for a long time after they are gone, and we are going to work to build this plant, improve the prosperity of the Company, and your prosperity, and we will be here and we will be a lot better off then they are, wherever they are. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Now you have been exposed to some pretty nasty tactics. Shag got a call one afternoon from a gal, no it was a guy, wasn't it? It was a fellow. "What are you going to do when we move Boyer out of town?", or words to this effect. Shag said, "They are going to take me along." I mean the point they were making is, that they were going to move in and get Boyer out of here-try to convey to the people that they are going to run this show. They ain' t going to run nothing. Even if they got in, they wouldn't. But they would have you believe they are somebody to be afraid of, and you had better play ball with them because if you don't you are going to get hurt. Well, you will get hurt if you play ball with them, I will tell you that. They will give you nothing but heart-ache and misery. Now we have another boy working the day shift who got a call Monday afternoon from a girl. She didn't identify herself but she said "You better"- these are my words but from what this lad told me, this is what she was saying- "Those who are for the union-their children's future is secure." He came into my office yesterday morning quite disturbed, shook up, and said, "Mr. Boyer, I don 't know anyway to take this except as a threat to my kids." I said this is not unusual. These are tactics they use. Anything to get in. Just as the rumor they were going to tear up the cars in the parking lot. This is the first time Dixie Cup has had guards in the parking lot to prevent possible tampering with auto- mobiles. What kind of an outfit is this? Like I said a long time ago, you don't have any rights unless you agree with them. Now is this what you want? I have no quarrel with anybody in this plant but the two lieutenants who are trying to saddle you with this man's union. I have said it time and time again that the Lexington Dixie people are nice people, good people, and they are going to make this Lexington Plant what it could be and will be; but we have had two of them trying to lead 300 into this man's hands out at the end of the road. The boy on the day shift that has been talking about the union told Charlie Duncan, "Well he hires them from the hills of Harlen, or somewhere up in there. They are in debt when he hires them. He has them over a barrel." What the Hell does he want me to do? Hire people who don't need work. This is what he said. Sure I hire people from the hills of Harlen. I hire them from West Liberty, Paris, Georgetown, Winchester, and main street in Lexington and everybody I hire needed a job, and I am Damn proud of it! Was there crime in that? What is the crime in that? But he would have you believe that I got you all so much in hock that you are dependent upon me. Gees! It is disgust- ing. The tactics that have been used. I could go on and on. I could talk about the boy I fired on afternoons, Jackie Black. And I fired him for Damn good reason , and Jackie will tell you I did. And I hired him back. You know what is said? "I shouldn't have hired him back. He didn't deserve a job." Did he or didn't he say it? He told Sweeney that. So what am I supposed to do? I try to run this plant with con- sideration and compassion. I give a man a second chance. I have given a dozen people a second chance, and I am proud that I did, and I am glad of the opportunity. And if I make a mistake the second time, I will fire them a second time; but I think that I am entitled to the right to evaluate things and give a man a second chance; but here is a guy that is trying to tell you, you need him to protect you from me; and I am wrong because I gave a man a second chance- a family man with S kids. Time will prove that I was right. So they have picked up every little thing. I can do nothing right. The per- sonal aspect, I couldn't care less. Sure they try to tear me to ribbons; but you know what is going to happen on Friday. The facts here have proven that you don't need a union; so when you vote on Friday, what are you going to be voting on? You are going to be voting on the question, "Do I want the man at the end of the road and his two lieutenants to fight my battles for me for the rest of my life or do I want to put my faith and trust in Dixie Cup and its present management", and I don't care how you look at it-I am present management; so we are talking about Boyer. I don't like to put it on a personal basis but this is true. Well, I will tell you what I will do. When the votes are counted on Friday; 5 minutes after the votes are counted, if the vote goes for the union I will call Bud Bachman and ask him to transfer me out of here and put my house up for sale on Saturday-because I will consider it a mandate from the people of the Lexington Plant that they don't approve of the way I run it; they don' t appre- ciate what I have done, and I have done a miserable job. I will accept that if you vote for the IUE. Now, I wonder when the votes are counted on Friday, DIXIE CUP , DIVISION OF AMERICAN CAN COMPANY 191 if the man at the end of the road and his two lieutenants will do that? Because they are going to get beat and beat bad, and you know it! You are going to vote on Friday, June 12th. You are going to go into the booth with one of these ballots and it is going to tell you to make your choice. Yes or No. Yes, you want the union; No, you don't want the union, and I ask you this. You think about it. Look good at the leadership of the union. Look good at the past Dixie has done here. Look good at me. Then you vote and I think that when, you analyze it, think and look at it honestly, there isn't a question that you vote the biggest NO you can because I' think we deserve a vote of confidence from: the Lexington Dixie Plant. I think our past deserves it and I know that the future will prove to you people that you were right when you voted NO of Friday, June 12th and send this man at the end of the road on his way. Thank you very much! Based on certain statements lifted from the context of the speech by Boyer as recorded, the General Counsel says that violations of Section 8(a) (1) of the Act are contained in such speech or speeches in that Boyer had singled out two employees who are active union adherents and characterized them as the "two lieutenants of the man at the end of the road" (meaning IUE Representative Edwards and Ruby Hughes and Floyd Readnower, two employees most active in assisting in the Union's orga- nization efforts); threatened employees that it would be ineffectual for them to select the Union as their bargaining representative because the Union could gain no benefits for them; warned the employees that the Respondent's Chicago plant moved to Lex- ington because of the Union; warned employees that the employees of another com- pany joined the Union and it is now a warehouse; threatened the employees that the machinery could be moved from the plant if the Union were successful in its orga- nizational campaign; warned the employees that they stood to lose economic benefits resulting from unionization of the plant and warned them that their union dues would bring them nothing but heartaches, misery, and a life of frustration; warned the employees that he (Boyer) would transfer from his job and put his house up for sale if they selected the Union as their collective-bargaining representative; and singled out an employee who was a known union adherent and asked if the said employee, Ruby Hughes, would resign if the Union lost the election. The speech as recorded reflects a plain, down-to-earth statement by the plant man- ager to the employees regarding the Company's position insofar as its opposition to the Union was concerned and the Company's reasons therefor; it does not indicate the kind of hostility or animus which the General Counsel would have believed was shown; nor is it shown that the speech was delivered with the intent or had the effect of frightening employees or threatening them with the loss of any benefits, or indi- cating that their job security would in any way be jeopardized by their adherence to the Union. It is obvious that Boyer went to some pains to undertake to clarify the wage rate schedule for the Company's employees at its Easton, Pennsylvania, plant which had been made an important topic by the union representatives in their solici- tation of signatures from Lexington employees; he pointed out that the claimed disparities of wages between Lexington and Easton did not exist in fact. He went further and compared the wage rates at the Company's Fort Smith plant and its Anaheim plant with those at Lexington; he emphasized that the wages reported by the IUE as paid at those plants were inaccurate and characterized the Union's repre- sentations as lies. He referred to the growth of industry in the Lexington area, and expressed his hope that the Lexington plant of Dixie Cup would grow, and stated unequivocably a prediction that it would grow in point of increased volume of busi- ness and employment of personnel. In this speech, Boyer undertook to discuss the question of union security from management's as opposed to the Union's point of view; in so doing he referred to strikes which had occurred at the Fort Smith and Chicago plants; he gibed at the notion that a union would "run" the plant; he referred in rather sarcastic terms to the "responsible" union leadership at the Chicago plant and elsewhere. He commented on the type of propaganda used by the Union regard- ing the organization of a company called Mengel in Lexington, a warehouse orga- nized by the United Paper Workers; and he referred to Nytronic, a company which had closed its plant. He denied union statements to the effect that other plants (including Darlington) would shut down or close; denied that certain supervisory personnel brought in from other plants meant that the Lexington plant was going to be flooded with outside help, as he said the Union had alleged; and denied that there was any possibility that the mechanics employed at Lexington would be thrown out of work, or that the Union could get rid of some of the foremen or get rid of him as plant manager. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boyer commented in somewhat caustic terms about what he had heard the Union had said about his hiring people outside of Lexington including the charge that he had "hired people from the hills of Harlan." In substance , Boyer undertook to answer all of the arguments , most of which he claimed were false , which had been made by the Union during the course of its organizing campaign. Those specific sentences or parts of sentences and paragraphs or parts of para- graphs which the General Counsel has taken out of context to support his contentions that the speech or speeches of Boyer conveyed or were intended to convey threats of reprisal or force or promise of benefits or, withdrawal of benefits is, from a reading of the full speech, without substance. To single out Ruby Hughes and Floyd Readnower as having been threatened or intimidated by being called "the two lieutenants of the man at the end of the road" is not worthy of serious consideration , since it is clearly apparent throughout the whole record that these two employees were in fact the two employees most actively engaged in furthering union organization under the immediate supervision of Edwards, who was not an employee of the Company but a paid representative of the Union. The fact that these two persons were very active throughout the entire campaign, and Hughes before that in the campaign of the United Mine Workers, was well known to all the employees as well as to management . Edwards took no offense but accepted the fact that these employees were referred to as his lieutenants; that he was in charge of the union campaign ; and that Hughes and Readnower acted upon his instructions . I cannot draw an inference that either of these persons was threatened by Boyer with discharge either during the course of his speech or at any other time .5 As noted, Edwards himself testified that Hughes and Readnower were known as his lieutenants , and his own testimony as well as that of Readnower is to the effect that he was in charge of the organizational campaign . I cannot find any threat involved in Boyer's statements in which he claimed that Hughes and Read- nower had said they did not need their jobs ; these remarks contained within his speech taken within the whole context thereof support his argument that they were not really interested in the employees of the Lexington plant. There is no implica- tion to be drawn from the whole context of the speech that the "two lieutenants" would be fired because of their union activity. Boyer's contention that the employees would gam no advantage by selecting the Union as their bargaining representative because the Union could gain no benefits for them were simply opposite statements to those of the union representatives that for the employees to join the Union would naturally or necessarily result in higher wages and additional benefits for them. Boyer in his speech and in his letter took the position, and it seems to be sustained by the facts, that the wages and working conditions of other unionized plants within the Company were no better, upon con- sidered comparison, than the working conditions and wages paid at the Lexington plant. Nor can a full reading of the speech show that it contained any threat to move either the Lexington plant or its machinery or that its operations would be curtailed in any way should the Union become successful in its effort to represent the employees at the Lexington plant. I cannot read into Boyer's speech, from his reference to the Chicago plant and one Angelo Inciso, that the Company had moved its plant from Chicago because of a union and consequently would do so again if that union organized the Lexington plant. Further with respect to alleged threats of closing of the plant , it is a stretch of the imagination to read into Boyer 's refer- ence to the circular concerning the employees of Mengel and the circulars asserting in effect that only by becoming members of the Union could seniority be protected. Boyer intended , I think, to convey the notion that a union does not necessarily mean security for employees in their employment. That such remarks cannot reasonably constitute a threat to move the Lexington plant is borne out by Boyer's immediate remark to the effect that the Company was not going to move out of Lexington- that from within 2 to 5 years the Company would have two more warehouses and a manufacturing building and 500 or possibly 600 employees instead of the then present 300 employees at Lexington. Boyer in his speeches , as Edwards did in his circulars , was presenting argument, the general language and tenor of Boyer's speech being to the effect that the Union as such would not be really beneficial to employees but that the Union was princi- pally interested in collecting dues. No employee who heard Boyer's speech and testified concerning it claimed that his manner was antagonistic or this his words were coercive so far as the witness was concerned. 5 My comment regarding the testimony of Hughes and Readnower appears below. DIXIE CUP , DIVISION OF AMERICAN CAN COMPANY 193 The Regional Director concluded that the portions of Boyer's speech mentioned in his Supplemental Decision, . accompanied as they were by implied threats of plant closure, considered above, conveyed to the employees the idea that designation of the Petitioner was futile and proclaimed that the Employer had predetermined it would not bargain on wages and that a strike would be an inevitable consequence . Such statements destroy the laboratory conditions in which the Board must hold its election and prevent the employees ' expression of a free choice in the election The under- signed concludes , therefore , that such statements constitute a basis for setting aside the election. In so finding , the Regional Director relied on Brunswick Corporation , 147 NLRB 428 ("The union bosses would have you believe that a strike just couldn't happen here. It happened in Moultrie . and IT MOST CERTAINLY COULD HAP- PEN HERE! So don't be misled when the union tells you it won't strike. No union can guarantee you that it won't force you out on strike!" ; the Regional Direc- tor there , construing the statements made in the speech alone, found that manage- ment's representative , in giving his final speech 2 days before the election, had announced the necessity of a production cutback and a layoff, and that the motiva- tion for the contemplated layoff was economic ); Southwire Company, 145 NLRB 1329 ( involving a statement in the company booklet distributed to employees-"We are convinced that wherever there are unions, there is trouble , strife and discord and that a union would not work to our employees ' benefit but to their serious harm."); Dal-Tex Optical Company, Inc., 137 NLRB 1782 ("In addition to and intermingled with the above threats [made in speeches ] were statements by which the Employer clearly conveyed the idea that designation of the Union was futile and that the Em- ployer would not sign a contract even if required to engage in bargaining" and "that if required to bargain and unable to agree, no power on earth could make the Em- ployer sign a contract" and "so what will probably happen is that the Union will call a strike" ); and Oak Manufacturing Company, 141 NLRB 1323 ("In the first letter, the Employer stated that the Union 's contracts had lower rates than the Employer was paying, which would give the employer strong arguments for reducing wages. It also stated `categorically ' that the Union cannot and will not obtain any wage increase for you. . . . Therefore , the Employer argued, the most Petitioner could do was to claim credit , and charge dues, for improvements that would be made in any event." ) The cited cases would support the conclusion of the Regional Director but for the fact that here there is testimony in the record which the Regional Director did not have before him; moreover, the facts in the cases mentioned are substantially different from those herein. In reaching my conclusions , I have examined each case cited by the parties hereto in brief in an effort to formulate from these and other cases criteria most applicable to the circumstances here. In an unfair labor practice proceeding such as this, the evaluation of statements made by an employer during an organizational campaign by a union in the employer 's plant necessitates a determination first, whethei statements and writings or speeches of employers constitute such unlawful interference with the guaranteed rights of employees under Section 7 of the Act as clearly to leave the imprint of interference of the right to self-organization of employees ; and second, whether, where the results of an election have been preceded by preelection state- ments of employers , such statements can reasonably be interpreted to show a cal- culated intent on the part of the employer to interfere with the free choice to which the employees are entitled under Section 7. It is important to know, too , that (as here ) protagonists of the Union have not been prevented from presenting their views. Where an election is involved , the legitimate interests of the parties to the election are of course to be considered : There is no policy or sanction inherent in the Act which would prevent the employer or the union from fairly presenting their respective views as to what the result of such an election would mean to either of them , either favorably or adversely . The troublesome question of whether the emp'oyer here exceeded the bounds of permissibility is involved both in the unfair labor practice case and in the representation case. I find some support in trying to reach a proper conclusion here from the decision of the Board in Trent Tube Company, subsidiary of Crucible Steel Company of America , 147 NLRB 538, 540. There the employer had sent a series of letters to employees prior to the holding of a Board-conducted election, and the petitioner union had also sent a series of letters to the employees. The employer 's letters stressed the advantages that the employees were then enjoying without belonging to a union and emphasized the employer 's opposition to the union; while, on the other hand the union 's letters stressed the advantages of collective 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining through a chosen representative and the requirement under law for the employer as well as the union to bargain in good faith. The majority of the Board held: Viewing the Employer's statements in their total context, the Regional Director, relying on Rein Company (111 NLRB 527), Dal-Tex Optical Company (137 NLRB 1782), and Storkline Corporation (142 NLRB 875), cases in which the Board was concerned with related types of preelection statements, was of the opinion that the letters were "calculated to convey to the employees the danger and futility" of their selecting the Petitioner and constituted a threat of economic loss and reprisal which interfered with the free choice of the employees. In reaching this conclusion the Regional Director emphasized the following types of information as having this effect: (1) the references to various benefits cur- rently enjoyed by the employees; (2) the statement that the petitioner could not guarantee that such benefits could continue under a collective-bargaining contract and that "bargaining starts from scratch"; and (3) the stress on the possibility of strikes and their adverse effect upon employees if the Petitioner was certified. The fact that the Petitioner had an opportunity to respond in detail to the Employer's contentions in regard to these matters, in the opinion of the Regional Director, did not remove the adverse impact of such statements. Accordingly, he recommended that objection No. 7 be sustained and the above election be set aside. We do not agree. We have read the letters of the Employer in their entirety and have considered not only the contents therein but their timing, the opportunity for the Petitioner to respond, and its actual responses thereto. In Trent Tube, supra, 542, the two dissenting members of the Board said: We agree with our colleagues that employees may-indeed they should-be told the benefits and detriments of unionism. Such information is the basis of rational choice. But there is a difference between information and threats. The line may be difficult to draw, but to us it is clear that this Employer's cam- paign was not informative but rather was designed to indicate to employees that they could be affected only adversely by choosing the Union. Because so much of what the Employer said suggested what its course of action would be, to call it simply "electioneering" obscures its real impact. Accordingly, we would direct the Regional Director to hold another election. In another representation case, American Greetings Corporation, 146 NLRB 1440, the Board overruled objections to the result of an election and held "as the tally of ballots shows the petitioner has not received a majority of the valid votes cast, we shall certify the results of the election." There, the main objection concerned a series of 14 letters to employees from the employer's plant manager, in addition to other campaign material, distributed during the critical period before the election. The first of the letters set forth the employer's opposition to unionization of its plant; the second letter pleaded "you have much to lose if the outside union organizers win"; other letters referred to strikes by unions against other companies, one letter containing a caption reading "nine months later-the fun is gone-so are their jobs!" Another letter referred to a 6-week strike initiated by the union which resulted in no benefits and which was called off after strikers were replaced, this letter ending with the query "Do you want to lose your job through being replaced in one of Bradshaw's [the union representative] stupid strikes?"; and the next day followed up with a letter entitled "The facts about Joseph Bradshaw-a lost strike-and lost jobs." In that case , the petitioner union was shown to have had the opportunity to and did counter statements made in the employer's propaganda campaign. The Board held in part [146 NLRB at 1444-14451: In his report the Regional Director concluded that the entire thrust of the Employer's preelection material was to impress upon the employees the futility and foreboding consequences of choosing the Petitioner, including the inevi- tability of strikes, loss of employment, and violence , thereby preventing the exercise of free choice by employees in the selection of a bargaining agent. The Employer contends that this material was within the limits of permissible cam- paign propaganda. We find merit in this contention. Although campaign propaganda bearing on strikes and their consequences does not contain any express or implied threats of retaliatory action by the employer, it nevertheless becomes improper when it produces an atmosphere of unreasoned fear that the employer will take such action if the employees select a labor organization to represent them. In cases of this nature, therefore, the problem is one of determining whether the campaign propaganda has exceeded DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 195, the bounds of fair comment , taking into account the entire context in which, the material was presented , as well as whether there was opportunity for reply by the participating labor organizations or for independent evaluation by the employees. . We note that the Employer 's statements concerning these three strikes were temperate and factual in character and were relevant to the election issues. before the employees. To the extent that they arguably were half-truth or created a distorted picture, the Petitioner had full opportunity to, and did, circu- late counter-propaganda. Many of the statements and cartoons distributed by the Employer concerned the qualifications of the Petitioner to represent the interests of the employees and could readily be evaluated by employees as typical campaign propaganda. Contrary to the Regional Director, we do not believe that the election atmosphere was such that the employees were precluded from exercising a rational choice on the question of whether or not they wished to be represented by the Petitioner. In American Greetings Corporation the Board also disagreed with the Regional Director's conclusion that the propaganda had the impact of creating in the minds of the employees the futility of selecting a bargaining representative. The Board noted that in cases in which it had set aside an election for that reason, the employer had stated, either expressly or by clear implication , that it would not bargain in good faith with the union even if it were selected by the employees. The Board further pointed out that in the case this decision was not in conflict with Storkline Corpora- tion, 142 NLRB 875. The Board's decision in American Greetings Corporation is consonant with the "free speech " proviso of Section 8 (c) and the rights given all parties to an election , including the employer , in that proviso . In Texas Industries, Inc. v . N.L.R.B., 336 F. 2d 128, 130 (C .A. 5), enfg. in part and setting aside in part 139 NLRB 365, the court held: It is well settled that under § 8(c) the employer must be regarded as a rightful contestant for his employees ' loyalty in a union election. This section permits an employer to state his legal rights under the Act and to predict that dire eco- nomic consequences will follow from a union victory .... It is only when the employer goes further and threatens to himself take economic or other reprisals against the employees that § 8 (a) (1) violation may be found. Relevant judicial and legislative history leading to the enactment of Section 8(c). support Board doctrine as stated in Trent Tube, supra , and related cases. In N.L.R.B. v. American Tube Bending Co., Inc., 134 F. 2d 993 (C.A. 2), cert., denied 320 U .S. 768, decided in 1943, long before the enactment of Section 8(c), the court held that an employer's speech or other communication made directly to his. employees , which constituted an expression of the employer 's own beliefs regarding employees' selection of a union as their bargaining agent, and an attempt to persuade employees to accept them, comes within the protection of the constitutional right of "free speech" and did not violate the Act; that the employer 's letter and speech preceding an election to select a bargaining agent, professing willingness to abide by the results of the election although not concealing preference for no union whatever but containing no intimation of reprisal against those who thought otherwise , did not violate the provisions of the Act against interference with employees' right of col- lective bargaining. American Tube Bending was followed by another Wagner Act case, Peter J. Schweitzer, Inc., 54 NLRB 813, 829-830, wherein the Board, taking notice of a "historical background ," found that a letter mailed to the employees of the employer on the eve of an election 6 found no merit in the company 's contention that the letter constituted the real and only issue before it: The respondent argues in support thereof that , prior to the letter and the election, there was no complaint or suggestion by the Union of improper activities by the respondent , and that no allegation was made by the Union either in its objec- tions to the conduct of the election , or in the original charge, of such unfair labor practices as are alleged in the complaint to have occurred prior to the time of the letter . The respondent fails, however , to recognize or adequately to consider (1) that the complaint herein is based on the first amended charge which did allege the commission of unfair labor practices commencing January 1943 and continuing to the date thereof, (2) that, in order to evaluate the true significance and effect of the letter, it is necessary to consider what preceded and prompted its issuance , and (3) that employees themselves were not always aware of the subtleties and congeries of facts which may influence their actions. 6 54 NLRB 826. 221-374-66-vol. 157-14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the Board's decision, the Court of Appeals for the District of Columbia in Peter J. Schweitzer, Incorporated v. N.L.R B., 144 F. 2d 520, 524-525, referring to N.L.R.B. v. Virginia Electric and Power Company, 314 U.S. 469, said: Certainly it cannot be claimed that an employer would be guilty of an unfair labor practice because he treated his employees well in order to forestall a union movement. The question in this case is whether, having done so, he may remind them of that fact and claim credit for it during a period of a union elec- tion. It is true that this may be a strong argument against unionization. It would not affect a man who is convinced of the need of a strong union movement for the benefit of labor as a whole. It might convince one whose only concern was the immediate labor policy of his employer But we believe that the Act gives the employees the right to choose between these considerations and that National Labor Relations Board v. Virginia Electric & Power Co. case establishes the employer's right to comment on them. We do not hold that this justifies an organized campaign or a protracted distribution of propaganda But such a situation is not before us here. Only a few employees were interviewed and the character of the persuasion was very mild indeed. The decision of the court is that the findings and order of the National Labor Relations Board will be sustained in so far as they may be interpreted to require the employer in this case to make it clear that the benefits which it is now giving to the employees will not be affected or its liberal labor policy changed because of any future union organization of its plant. Chief Judge Groner, concurring, wrote [ 144 F. 2d at 525-526] : Judge Arnold further holds that the employer by satisfying its employees so completely that they would not want a union, and by calling its labor policy to their attention so as to induce them to vote against the union through loyalty and gratitude, is not guilty of an unfair labor practice. This, in my opinion, is correct. I am theiefore also concurring in his holding that the order of the Board as to this feature of the case should be reversed. Section 8(c) of Title I of the Taft-Hartley Act is the identical language contained in the text of the Labor Management Relations Act, 1947, as amended by Public Law 86-257. 1959. See H. Conf. Rept. No. 510, on H.R. 3020, Labor Management Relations Act, 1947, 1 Leg. Hist. 534, 548. S. Rept. No. 105 [1 Leg. Hist. 429 (1947)], which accompanied the Taft-Hartley bill, stated: Another amendment to this section would insure both to employers and labor organizations full freedom to express their views to employees on labor matters, refrain from threats of violence, intimation of economic reprisal, or offers of benefit. The Supreme Court in Thomas v. Collins (323 U S. 516) held, contrary to some earlier decisions of the Labor Board, that the Constitution guarantees freedom of speech on either side in labor controversies and approved the doctrine of the American Tube Bending case (134 F. 2d 993). The Board has placed a limited constiuction upon these decisions by holding such speeches by employers to be coercive if the employer was found guilty of some other unfair labor prac- tice, even though severable or unrelated (Monumental Life Insurance, 69 NLRB 247) or if the speech was made in the plant on working time (Clark Biothers, 70 NLRB 60). The committee believes these decisions to be too restrictive ... . The minority views of the Senate committee stated the opposition of the majority to the passage of the bill "in its present form because it fails to achieve the objectives which the American public demands." The minority went on to say, It is difficult to comprehend how anyone in 1959 can seriously contend that the American worker should be legally prevented from hearing all sides of a labor-management dispute in 1935 when the Wagner Act was passed, it may have been true that in a number of situations any statements by employers might be considered to be undue influence But, in the last two decades the labor move- ment had grown by leaps and bounds. It is difficult to imagine any American industrial worker being cowed or unduly influenced by any statements on the part of his employer which do not violate section 8(c). We believe that any worker would strongly resent the implication that he has to be protected from such statements or that he is not entitled to hear all sides of an organization question before casting his ballot. Labor-Management Reporting and Dis- closure Act of 1959, 1 Leg. Hist. 477. It is clear, then, that from the time of the decisions in N.L R B. v. Virginia Electric and Power Company, 115 F. 2d 414 (C.A. 4), American Tube Bending Co., supra, and Peter J. Schweitzer, Inc., supia, down to and through the latest cases involving the interpretation and application of Section 8(c), any complaint against an employer DIXIE CUP , DIVISION OF AMERICAN CAN COMPANY 197 which alleges conduct on its part claimed to constitute an unfair labor practice viola- tion of Section 8(a)(1) must necessarily be viewed in the light of the provisions of the intent of Section 8(c), and the rights bestowed upon parties by that section of the Act. It is not aiguable that the "free speech" proviso of Section 8(c) of the Act does not permit free expression by each party to an election, so long as such expression contains "no threat of reprisal or force or promise of benefit " In General Shoe Corporation, 77 NLRB 124, 125, the Board, after disagreeing with the Trial Examiner's finding that certain of the Respondent's activities constituted a violation of Section 8(a)(1) 7 turned to the separate question of the Union's objec- tions to the election held in a representation case consolidated with the unfair labor practice case. The Board said [77 NLRB 126, 1271: Conduct that creates an atmosphere which renders improbable a free choice will sometimes warrant invalidating an election, even though that conduct may not constitute an unfair labor practice. An election can serve its true purpose only if the surrounding conditions enable employees to register a free and untram- meled choice for or against the bargaining representative. For this reason the Board has sometimes set elections aside in unconsolidated representation cases, in the absence of any chaiges of proof of unfair labor practice. When a record reveals conduct so glaring that it is almost certain to have impaired employees' freedom of choice, we have set an election aside and directed a new one. Because we cannot police the details surrounding every election, and because we believe that in the absence of excessive acts employees can be taken to have expressed their true convictions in the secrecy of the polling booth, the Board has exercised this power sparingly. The question is one of degree. We think that the Board should apply no different standards in those occasional representation cases which happen to be consolidated with unfair labor practice proceedings for purposes of hearing and decision. ... In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions; it is also our duty to determine whether they have been fulfilled When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again. That is the situation here. In the instant consolidated cases and the circumstances thereof, where the objec- tions are grounded on the same allegations which are said to constitute unfair labor practices, and since the Regional Director has found 8(a)(1) violations to support certain objections, it would seem that the existence of the same facts said to support allegations of violations of the Act and objections to the result of the election call for the same application of the 8(c) proviso of the Act as stated by the Board and the courts. Upon sole consideration of the Company's notice and letters of March 1 and June 3, the letters and notices distributed by the Union, and the speeches of Boyer of June 10 and 11, considered in themselves and without regard to the allegations of other viola- tions as set forth in the complaint, I would recommend that the Board overrule the Petitioner Union's objections in Case No. 9-RC-5875, and sustain the Respondent in regard thereto; and that the Board dismiss the 8(a)(1) allegation of the complaint in respect to alleged violations by the Respondent through its notice, letters, and the speeches of Boyer. G. The Union's preelection campaign William Edwards, Jr., field representative of IUE, began an organizing campaign at the Lexington plant early in February. He served as chief organizer until July, when Joseph Fortuna, assisted by Joseph Bartholomew, both TUE field representatives, took over the responsibility. During the whole campaign, Edwards was assisted by v"`Ve are constrained to disagree with the Trial Examiner's finding that the respond- ent's activities in this respect constituted a violation of Section 8[ (a) ] (1) of the Act. It is true that for 2 months before the election of July 31 , 1946, the respondent engaged in a course of conduct consisting of publication , through Its supervisors , in letters, in pamphlets , in leaflets , and in speeches , of vigorously disparaging statements concerning the Union , which undeniably were calculated to influence the rank -and-file employees in their choice of a bargaining representative . However, these statements contained no threat of reprisal or promise of benefit and appear to be only such expressions of opinion -as are excluded from our consideration In an unfair labor practice case by reason of -Section 8(c) of the amended Act." 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees Floyd Readnower and Ruby Hughes and other employees . Hughes and Readnower were very active throughout the entire campaign on behalf of the Union, the fact being well known to all employees as well as to members of management. Edwards testified that these two were referred to as his lieutenants. Edwards, Read- nower, and Hughes were assisted by employees Al Deskins, James Wiley, and, until about 2 days before the election, Charles Land. At the inception of the campaign Edwards instructed these employees "to sign employees of Dixie Cup into membership in the IUE." Edwards, however, was in full charge of the campaign, except for general instructions from his IUE superiors.8 Prior to April 22, Edwards claims to have received a sufficient number of signed authorization cards from employees, sent to him through the mail or handed to him by others, to prompt him to write his demand letter of April 22 to the Company, to, which, as noted above, the Company replied, stating in substance that it did not believe that the Union represented a majority of the employees, and suggesting that the Union adopt Board procedure to determine the representation question. During the campaign Edwards himself handed out literature in the form of hand- bills and blank application cards to employees as they were coming to or going from work, usually taking station at the end of a road which leads from the highway to the plant premises. He said that whenever he received an employee-signed authorization card from an employee, he filled in a form letter and sent it to the employee, pointing out the advantages of union membership and enclosing an honorary membership card together with additional blank authorization or membership cards with a self- addressed return envelope. He said ". . . I mailed those to the employees whom I am acknowledging receipt and verifying that they are now members of our union." 8 Regarding the authorization cards Edwards said: They were turned over to me by employees who were active in the organizing campaign within the plant. They were turned over to me by individuals who wanted to present to me personally the card and they were received by me in the mail in a self addressed stamped envelope. By active committee members; by individuals; by mail. He identified some 183 of these cards as having been received by him and kept in his, possession "up until such time as I was forced to send those cards accompanying a petition to the National Labor Relations Board showing 30 percent of my interest, then they were not in my possession." During the period beginning in February up until the end of the organizing cam- paign, two or three meetings were held each week by the Union at various places such as a place called the Blue Ox, at Holiday Inn, and at Readnower's, Deskins', and Edwards' homes. Edwards identified 183 signed authorization cards as having been received by him; he could only estimate that he "saw maybe 30, 40, 50, 60, 70, 80, 90, 100, I don't know" cards actually signed. There was considerable discussion at the 8 The form of union authorization card used by Edwards and circulated by him and, other union representatives for the signatures of employees is as follows INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO I hereby authorize the International Union of Electrical , Radio and Machine Workers, AFL-CIO, its agents and representatives , to act for me as my collective-bargaining- representative in all matters pertaining to rates of pay, wages , hours of employment, or other conditions of employment , and to negotiate and enter into contracts with- my employer covering all such matters . This authorization supersedes any and all authorizations of prior date. Signature ------------------------------------- Date ----------- Address-------------------------------------------------------------------- Employed by: -------------------------------------------------------------- Company ------------------------------------- Plant ----------------------- 9 The honorary membership card distributed by Edwards through the mail was in- the- following form This is to certify that the bearer -------------------------------------------- --------------------------------------------------------------------------- has applied for membership in International Union of Electrical , Radio and Machine- Workers, AFL-CIO. Please extend all courtesy and cooperation in the name of IUE, AFL-CIO. [The card bore the reproduced names of James B. Carey, IUE president, and David J. Fitzmaurice, president, IUE District 7.] ---------------------------------- Member's Signature DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 199 -hearing concerning the admissibility at the time of the original offer of these cards by counsel for the General Counsel, who said he relied on Rule 36 of the Rules of Civil Procedure, asserting "that they are entitled to be received in the hearing, and if the Respondent has any fraud or coercion that the burden shifts to him to come forward and attack it"; with this contention, I disagreed, because I do not believe that rule has that effect, and think the burden is on the General Counsel to prove the authenticity of each card. I finally admitted these cards in evidence with the understanding that upon witnesses cross-examined regarding the circumstances surrounding the signing of union cards, they be accorded the opportunity to tell in their own words the cir- cumstances suriounding the signing of such cards, including what was said at that time, without prejudice to the right of the cross-examiner thereafter to employ leading questions if the witness' recollection appeared to have become exhausted, or if the witness should appear to be biased or unfavorable to the Respondent's case. I made it clear to the parties that I considered the burden of proof of authenticity and validity of each card to rest on the party offering it. Counsel thereafter did, within the area covered, follow my ruling in this regard. Ruby Hughes, employed by the Company for 51/2 years in the package department, testified that she became interested in the IUE around the first of 1964 when Edwards came to her home and asked her to sign an authorization card. At that time she was engaged in helping to organize the employees of Dixie Cup into the United Mine Workers. About 2 months later after she had thought the matter over Edwards again called on her and as a result she decided to try to persuade the employees she had solicited for membership in the United Mine Workers to come over to the IUE. She -said she explained to these employees that it would be better to have only 1 union on the ballot, rather than have 3 names on the ballot; that she obtained 30 or 40 signa- tures to United Mine Workers' authorization cards which she turned over to the United Mine Workers representative, keeping a record of the names and dates appear- ing on those cards. At the hearing she identified some 36 cards which she personally -witnessed being signed (including her own), and 3 other cards which were returned .to her by the persons who had signed them out of her presence. Some of these cards, she said, were signed at the homes of employees, at union meetings, and at various ,other places. Although she was active in the union organization campaign, she testi- fied that she had no knowledge of the preparation or distribution of leaflets or other ,union literature. Floyd Readnower has been employed for approximately 31/z years as a mechanic at the Dixie Cup plant at Lexington. He testified that about a week or two prior to March 17 he engaged in a conversation with Edwards who identified himself as "the IUE representative." Readnower informed Edwards that other unions had been trying to get into the plant, that he was not interested in them, but would like to talk to Edwards at a later date about signing a union card or becoming instrumental in orga- nizing the IUE. He met Edwards the following day at the Blue Ox Restaurant when during the course of their conversation he expressed his desire that he would like to participate in the organization effort of the IUE. Three or four days later he called at ,the home of Edwards who explained to him matters concerning wages, seniority rights, grievances, and other benefits to be explained to the employees to show the advantages under the Union "as opposed without a union." He was instructed, he said, that "we should never overemphasize wages, overemphasize any benefits people might get under a union because if we prefabricated in any way these people when we did get in would be disappointed and disillusioned in us." After that, he said, he had many meetings with Edwards, at some of which employees were present including meetings at the Blue Ox, Holiday Inn, and other places. On direct examination, in answer to a question as to what he had told employees whose signatures he solicited on authorization cards, he said: Well, to me in what I told these individuals was this, that I thought that we were a stronger group-that we were united-that if we could stand together if we had grievance power, bargaining power, I told them in plants where wages were higher, I told them that the fringe benefits were greater, certainly their seniority rights were protected more, there are many smaller things most of the things that I told them were of course remember when you were signing I only had a limited amount of time to talk to these people usually and I tried to cover as much as possible in a very short time. Readnower testified that Edwards was in general charge of the Union's campaign, that his own interest was directed to obtaining signatures to authorization cards. He said he did not write or compose any of the literature distributed by the union repre- sentatives but did give suggestions to Edwards; that he obtained copies of union- .company agreements covering employees of other employers, and compared the wage `ZOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD and hour and other conditions set forth in those contracts with conditions existing at the Dixie Cup plant. He testified that he obtained authorization card signatures on various dates in March, April, May, and June. Readnower testified that he secured signed authorization cards from James Thompson, and his wife Eileen (Eileen's card being discarded as invalid by me at the hearing because signed by her husband without her consent), Readnower's own card, the cards of Blake and Mary Jane Blake (which was returned to Readnower by her husband), John D. Carson II, returned to Readnower, as were the cards of Steele, Billy Treadway, Donald Blackwell, Yvonne Blackburn, Alma Brewster, James B. Brewster (returned by Edwards), Ronald Brown, Bryant, Burton, Burbridge, Barbara Carroll, Buddy Carroll, William Carson, Carley, Catlett, Caudil, Carl Chapman, Margie Chapman, Juanita Collett, Combs, Kempton, Caskey, Cox, Dailey, Davis, Dunn , Faulkner, Frederick, Gibson, Gill, Wallace Gillen, Lena Gillen, Lotus G. Gillen, James W. Green, Hicks, Jackson, Jack Jewell, Betty A. Johnson, Kimbalter, Jerry Lakes, Lewis, Lofford, Lockwood, Malley, Clarence Martin. Jr., Jerry Martin (handed to hint by the father of Clarence), John T. Martin, Mattingly, McCarthy, Macllhane, McIntyre, Rigney, Scott, Shifflet, Stanley Stinnet. Donald Taylor, Harold Taylor, Tharp, Thomas, Tolson, WanWinkle, Washington, Wooldrich, and William, M Yates, Jr Cards exhibited to him of which he had no knowledge or could not say when or where signed, included those of employees Feck, Ferguson, Barbara Howe, Palmer Howe, Allen Jewett, Harry B. Martin, John T. Martin, Philip Moore, Plunket, Leona Poe, Nancy Lou Poe, Reams, Agnes Stanford, James Stanford, Kenneth Shewmaker, Tommie Shewmaker, Southerland, Tolson, Toy, Treadway, Trayler, and James Wiley. The cards he was unable to identify as having been obtained or received by him he said he saw in the file maintained in Edwards' office. Out of some 99 cards exhibited to him, he said he saw, beside the one signed by him, 52 of them signed by the employee. As a rebuttal witness Edwards testified that James Sanford and Agnes Sanford had signed authorization cards on May 2 and' April 30, respectively, his memory having been refreshed; and Mrs. Hughes, recalled on rebuttal, testified that she saw P. Moore sign the card for the IUE on April 24, he having previously signed a United Mine Workers card, that she saw Alma Toy sign a card on April 30, Nancy Lou Poe sign a card on May 6, and that she thought she had signed an authorization card herself on March 20.10 During the course of his solicitation of employees' signatures, Readnower had in his possession copies of collective-bargaining agreements between various unions and other companies including those, as named by him, of "Sperry Gyro," "Allis Chal- mers," "the General Motors master contract," a "Frigidaire" contract covering its Dayton plant, a photostatic copy of a contract between "Sylvania" and a union, and a copy of the labor contract in effect at the Easton plant of Dixie Cup When Read- nower (as well as Edwards) was soliciting signatures to the IUE cards, he discussed differentials in wage rates between the Dixie Cup Lexington plant and the Easton plant. He also used wage rates represented by him to the employees as being set out in other collective-bargaining agreements between unions and employers Testimony of employees, discussed below, proves that Readnower misrepresented or misstated a number of facts in his discussions concerning wages and other benefits of other com- panies during the time he was proselytizing for the Union. Readnower testified vaguely concerning rumors that were running through the plant to the effect that the Company knew who had signed authorization cards for the Union, that there might be discharges for union activities, that the employees might lose their benefits, that there might be retaliatory violence, that the plant would move out if the Union came in, that it would be necessary for the employees to strike in order to get additional benefits from the Company-all without specifica- tion or detail. Readnower testified that an individual (unidentified) "came up to me and told me that the rumor was that I had personally threatened them or their family with violence and I told this individual and there were probably half a dozen people there that if anyone would say that I had at any time threatened them or their family they would have to prove it in a court of law ...." Readnower denied that he had ever told any employee that the sole purpose of signing a card was to obtain a Board election; this testimony is contradicted by a number of employees, whose tes- 10 Counsel for the General Counsel rested his case-in -chief during the afternoon of December 16, at which time I ruled that, at the close of the Respondent 's case , counsel for the General Counsel would be permitted on his request to call employee witnesses solely for the purpose of proving signatures and the date of signing and the circum- stances surrounding the signing ; and should counsel for the Respondent desire, he should have opportunity to present relevant evidence in defense of any evidence introduced through such employee witnesses. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 201 timony is discussed below.11 The Union has not, nor has the General Counsel, fur- nished evidence to contradict that presented by the Respondent concerning exag- geration and misstatements made by Readnower and Edwards during the course of the organizing campaign. The Respondent emphasizes that some of the Union's misrepresentations and false statements were reduced to writing; in the later days of the campaign the Union emphasized the issues of the imposition of an initiation fee up to $50; and falsely claimed that the employees had "better than 200 signed IUE members." The Respondent further points out that the Union distributed statements in the form of leaflets, after the election, stating falsely that the Company had been directed by the National Labor Relations Board to bargain with the IUE. It is a fact that the state- ments were false and misleading. The charge made by the Union that the Respondent, through its letter and bulletin and the speeches of Boyer, made misleading statements intended to intimidate or coerce employees, is like the pot calling the kettle black. There is much credible testimony in the record, mentioned below, that Edwards, Readnower, and Hughes told employees that unless they joined the Union before the Union became the rep- resentative of the employees, they would afterward be required to pay high initiation fees and dues. This, as is commonly known, has occurred frequently and will prob- ably continue to occur in union organization campaigns. In Bonnie Enterprises, Inc., 145 NLRB 1669, the Board ruled that a circular dis- tributed by the Union as campaign material was merely an exaggeration, which it did not condone, and left for the voter to evaluate, although conceding that the contents of the circular were not completely correct. There, on election day and the preceding day, the Union distributed the circular which listed beneficial provisions desired by the Union in its contracts and represented that such conditions were in all meatcutters' contracts in the area. Some benefits alluded to were actually left out of many contracts, so that the circulars were substantial misrepresentations of mateiial facts of vital concern to employees voting in the election; moreover, the timing of the publication afforded no opportunity to interested parties for verifica-- tion. On petition for enforcement of its order in that case, the Board's position before the court indicates how it regards inflated claims made by a party during the course of the union campaign. In N.L.R.B. v. Bonnie Enterprises, Inc., 341 F. 2d 712, 713 (C.A. 4), the court wrote: It is contended in behalf of the Board that the circular is not a material" misrepresentation but is merely an exaggeration which the Board, while not condoning, has left for the voter to evaluate, although the Board concedes that it is "not completely accurate." In its brief, it is contended that the circular did not substantially distort the basic fact which the Union sought to commu- nicate, that is, it had obtained for other employees the listed contract benefits and that in general it could not reasonably be expected to have a significant impact on the election, being only a "minor distortion" of some facts. It then undertakes to compare these statements with the extravagant promises so often made by and in behalf of candidates for public office, with which we are so, familiar. H. Alleged threats and interrogation The General Counsel here and the Regional Director in his Decision consider- an alleged interrogation and threats made by Plant Manager Boyer on June 8, aris- ing out of a conversation he had with Hughes on June 6 The Regional Director,_ in his Decision, concludes that "while the evidence does not establish that this n The Regional Director, in his Supplemental Decision in Case No. 9-RC-5875, concluded: Concerning the allegation in Objection 5, that the Employer misrepresented wages and working conditions existing at other of its plants, Boyer's speech contains various references to wages of employees at three other Employer plants and com- pares them with wages paid at the Employer's Lexington plant The stated intent of the comparison was to answer alleged campaign statements, attributed to the- Petitioner, referring to such wages. The comparisons purported to be between aver- age wages at the Employer's Lexington plant and the other plants of the Employer. Boyer, who furnished an affidavit to an agent of the undersigned, with respect to the Objections, stated under oath that these figures were accurate and were furnished by the Employer's accounting department The Petitioner has furnished no evidence or witnesses to establish the contrary. The undersigned , therefore , concludes that no substantial or material issue affecting- the results of the election is raised thereby. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee's conversation with a Petitioner representative was the object of any sur- veillance on the part of the Employer, the questioning of the employee about her conversation with Edwards constituted an unwarranted interference with the employ- ee's rights and, therefore, an additional basis for setting aside the election." The Regional Director, of course, was acting on information furnished to him and did not have the full facts as brought out at the hearing. On June 6, Hughes, in the absence of Joseph Dombrowski, her foreman, informed or obtained permission from one Shewmaker to leave her work an hour early to go home because her child was sick. Shewmaker was a leadman, not a supervisor, and had no authority to give her time off. Boyer was in his office and she readily could have approached him for permission to leave. She did, however, leave the plant and stopped to talk to Edwards at the end of the access road to plant, she in her car, he standing by the side of the car, at a time when there was a change of shift of employ- ees, some going out and the other shift employees coming in. According to Hughes, Boyer called her into his office on June 8 and: He told me that if I was sick it was all right for me not to come in or if my little girl was sick that was all right but he said for me to leave and go home that I should come in from now on and ask him if Joe wasn't there. He said I had no right to stop at the end of the road and talk to the union man there. The employees on the second shift were saying that I was given special privileges already and it had better not happen any more. It is clear enough from the testimony of Hughes herself that the chief concern of Boyer related, not the fact that she had been talking to Edwards, but rather to the fact that she had punched out early, without official permission, on the excuse that her child was sick, and then had been observed conferring with Edwards at a time when the second shift was reporting for duty. She and Edwards were in a place easily seen from Boyer's office. As she herself said, Boyer told her in this conversation that her union affairs were her own business, that the reason he had called her in to see him was because she had punched out early without permission. I disagree with the finding of the Regional Director that the questioning of this employee under the circumstances constituted an unwarranted interference with Hughes' rights as an ,employee. Simply because Hughes was known by Boyer to be an active union adherent, she was not privileged to the extent of being able to breach her duties as an employee without admonishment by management. Hughes testified to another incident that occurred in March or April when Boyer had come to her department in answer to an inquiry made by her as to the reason why the package department bonus had decreased. She said: So he explained it to us and then he started to walk away and he asked us if we were happy about it and I said no and he said he didn't figure I was and that there was nothing I could do about it if the Union or no one else could make them pay us in there if they didn't want to pay us. I cannot find any threat or implication of threat or coercion in Boyer' s comment. According to the testimony of Hughes, on June 3 Billy Foster, supervisor of waste control, had interrogated her by asking her "how the Union was going along . . . I told him fine and be told me I'd better leave the Union alone because the only thing it was going to get me was out the door at the last vote." Foster, whose testimony I credit over that of Hughes,12 said that at this particular time Hughes called him over to her machine, ... looked at me, kind of funny and she said, "What are you going to be doing when the Union gets here," and I said , "Well, I hope to be doing about the same thing I'm doing now," and then Mrs. Hughes laughed or something like that and she said, "No, when the Union gets in the Union is going to get in and when it does we're going to get rid of a bunch of smart ass supervisors" was the words she used .... So I asked Ruby, "Do you really believe that if the Union gets in you people can do your own hiring and firing," and she said she knew they could and she also knew that the Company could not fire any union members. With that I told Ruby I said, "With that attitude, Ruby, that attitude you have you should watch yourself, you could be one of the first ones to leave" or some- thing like that and then I walked off. 12 My comment as to the credibility of Hughes ' testimony throughout this case appears below. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 203 This conversation, occurring long before the election, cannot be construed to be a, threat, least of all a coercive threat; Hughes initiated the conversation, her com- ment was such as to justify any retort made by anyone, supervisor or not. I do not accept this isolated exchange of words as carrying any weight to support the allega- tions of the complaint. The complaint alleges in substance that Matthew Vernon, a supervisor, had warned an employee that he could be discharged for putting things (pertaining to, the Union) on the bulletin board. The proof does not sustain this allegation. Readnower testified: On this occasion I went to Mr. Vernon and explained to him that I thought that we were being treated unfairly and when I said we I thought the union members or union people participating because there was literature put on the bulletin board by some of the employees inferring that we were idiots to be exact the IUE (Idiots Under Enlistment) I noticed this on the bulletin board on previous occasions. I let it go. I didn't say too much about it. On this particular morning in question Mrs. Frances Leath who is a floor lady of Mr. Kinsey Ditweiler, a master mechanic or plant manager, I don't know his exact title stopped me and made some comments on this, they seem to have a little laugh about it and went on. When I saw this I became a little provoked. I went to Mr. Vernon and asked him if we couldn't have such things as these removed from the bulletin board. He informed me that this was a company bul- letin board and what the company or the people wanted to put on it was all' right. I informed Mr. Vernon that I thought we should have equal rights that prejudice was involved, that we were, we would put things on the bulletin board. Mr. Vernon's words to me were "Don't tell me what you're going to do, you can be discharged for putting things on the bulletin board without the authorization' of the company." This was the extent of my conversation on this date. Vernon denied making the statements attributed to him by Readnower and said' that he did not see Readnower, as the latter had testified, pick up a broom and knock the sign down, nor did he see anyone else do it. He saw some antiunion signs which he took down and later gave to Mr. Gravitt, counsel for the General Counsel, when Gravitt took his affidavit on July 1. He testified to one incident, which occurred when there had been two signs on the bulletin board-one pro- and the other antiunion. He said that he had taken down both signs from the bulletin board and had later told employee Fred Weber, who had put up the antiunion sign, that there would be no more signs placed on the bulletin board. I credit the testi- mony of Vernon against that of Readnower. Readnower, although testifying in a positive manner concerning the incident related by him, has raised doubt with me concerning the reliability of his testimony, both here and regarding other times, for reasons more fully discussed below. Should it be conceded that Readnower's testi- mony be accepted, nothing in the way of a threat, direct or implied, can be read into, the remarks Readnower said Vernon addressed to him. Another incident picked out as an alleged threat made to an employee occurred during the speech made by Boyer to a group of employees on June 11, at which, Hughes was present. She said that Boyer, during the course of his remarks, said "that if the Union gets in on Friday I will put my house up for sale on the following, day and leave Lexington and Dixie"; that Boyer did not name her by name but that he looked at her when he asked the question, "Would you do the same?" The Regional Director in his Decision interprets this as a question directed to Hughes as. to whether she would request a transfer; that "The employee who was also inter- viewed by an agent of the undersigned confirmed this and confirmed that Boyer's remarks were directed to her and that she did respond as indicated." The Regional Director continued, The undersigned does not consider it necessary to determine whether Boyer's remarks about the employee were rhetorical questions or mere editorial com- ment rather than a direct invitation to respond. They were a clear invitation, made in an open meeting of employees, to a known Petitioner adherent to quit if the Petitioner lost the election. I do not know what the Regional Director's agent had before him other than the statement of Hughes. I cannot make the same finding as made by the Regional Director on the basis of the testimony of Hughes as given at the hearing. This seg- ment of testimony to support the allegation of a threat to an individual employee deserves little, if any, weight. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I understand the contention of the General Counsel, the fact that Boyer, during the course of his speech , stated that he would request a transfer and put up his house for sale if the Union should win the election , constituted a threat conveyed with the intent to create a fear among employees that their employment future will be adversely affected by such withdrawal , as stated and found by the Regional Director in his Supplemental Decision . The Regional Director in his finding has relied on Walton Manufacturing Company, 124 NLRB 1331, and Audubon Cabinet Company, Inc. and Period Tables, Inc., 117 NLRB 861. Opposite to the facts in the cited cases, here Boyer is not the "dynamic force" behind the success of Dixie Cup; on the con- trary he is rather low in the hierarchy of that Company . It is not reasonable here to infer from Boyer's remarks that he intended a threat to close the plant. Had Boyer the authority to close the plant, then a reasonable inference might be drawn that he was threatening to close the plant if the Union won the election . Here, again, remarks of Boyer have been lifted out of context and built up to unreal proportions. The Regional Director, in his Supplemental Decision , correctly states that: The Board has held that where a principal operating official of an Employer tells his employees that he intends to withdraw association from the firm if employees vote for a union, such statements are coercive and in violation of Section 8 ( a)(1) in that they engender a fear among employees that their employment future will be adversely affected by such withdrawal. He concluded on that basis that "these statements constitute an additional basis for setting aside the election." I do not agree that an oratorical statement made in a campaign speech by a comparatively minor official of the Company could engender a fear among intelligent employees that their jobs would be in jeopardy if Boyer moved away from Lexington. At the hearing counsel for the General Counsel moved, and the motion was granted, to amend the complaint to afford the opportunity to prove that the Respond- ent's attorneys, in questioning employees in the preparation of the defense of Case No. 9-CA-3222, transgressed the boundaries of the safeguards laid down by the Board in Johnnie's Poultry Co., 146 NLRB 770, and lost the benefits of the privilege of interrogating employees on matters involving their Section 7 rights and, therefore, violated Section 8(a) (1) of the Act. The specific safeguards designed to minimize -the coercive impact of interrogation of employees by counsel in the preparation of the defense of a case, as set forth in Johnnie's Poultry Co., are correctly summarized by counsel for the General Counsel: the employer must communicate to the employ- ees the purpose of the interrogation; assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free of an employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning the employee's 'subjective state of mind, or otherwise interfering with the statutory rights of employees. On December 7, 8, and 9, the Respondent, on advice of counsel, assembled the employees in the bargaining unit during working hours, at which times they were addressed by Robert Kleeb, one of counsel for the Respondent. Subsequently the employees were interviewed in groups by Kleeb and one of three of his associates, the stated reason for such speech and interviews being to ascertain facts for the preparation of the defense of the Respondent in Case No. 9-CA-3222. Mr. Kleeb spoke to four different groups of the employees. Readnower attended what he -remembered to be the second meeting of the first shift. Readnower's best recollec- ,tion of what occurred was related by him, as follows: Well, we were seated in the cafeteria and Mr. Kleeb introduced himself and told us why he was there. He said that he, the words he gave, a little brief talk prior to the meeting, of his qualifications of being a National Labor Relations Board Attorney or something of that nature, his experience in labor and management. He told us he was there to get the facts on these things, he told us that he knew the way that cards had been signed, why they had been signed .... He said that he knew the way or means in which signatures were acquired on those cards by the union representatives and their people, that these were cards, some of them were acquired through forgeries, threats, coercions, and things of that nature. He also stated that he knew who signed the cards so there was no use of anyone lying about it, that they would know, they would know who signed cards, there was no use of anybody lying about it, that he made the statement that people were still being frightened, that if he heard of this or if any witness was bothered .he would, I don't recall just exactly what he said he would do. He also said that DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 205 we were invited to go to the office where we would be talked to , that Mr. Boyer would make these arrangements , that he wanted the truth , he didn't care who it hurt, whether it was the Company, the Union, or the NLRB, that I believe he introduced his associates , I am not sure of this, but I think he did. He said that after leaving the cafeteria he went to the corridor and joined a group of people who were introduced to Mr. Pine , one of counsel . Readnower testified further: After being introduced to Mr. Pine he said that we were there, that we did not have to answer any questions if we did not chose to, that he would like our cooperation in this, that we were not compelled to do it. He had a sheet of paper in front of him from which he appeared to read these questions from, I noticed the number 25 at the last of the list and one at the first of the list, so I assumed there was going to be 25 questions that he was going to ask me ... he asked me if I had signed a card, who had asked me to sign a card , he asked me if I had gotten any cards signed. He asked me if I had threatened or made any falsehood or misleading statements to get the cards signed . He asked me if I was aware of perjury, that I should tell the truth, he asked me if I had heard any of these rumors, such as the cars, etc., I can't recall all of the questions Mr. Pine asked me at this time. In explanation of his mention of "perjury ," Readnower said: He just asked me if I knew-I don't remember Mr. Pine's exact words on this, it was pertaining to testimony that I might give falsely-not to perjure myself, this is the way I took it, your honor. I don't remember, I could not quote him word for word. Mr. Kleeb made the following statement on the records: So that you understand the reason for this cross -examination so it doesn't have to be elicited in this manner. I as counsel for this Company, my associates, Mr. E. Jackson Bonney, Mr. Karl LaBarr, and Mr. Dean Pine, who are at this counsel table, of record repre- senting this Corporation, flew into Lexington Monday,-on Monday. We arrived at the plant and pursuant to my instructions, the Company assembled during working hours the employees in this bargaining unit as admitted . I talked to four groups. I talked to all of them, second shift, first: third shift, next; and the first shift the following day-yes, half of the first shift the next day and the balance of the first shift on the following day. I will not go into detail as to all the things I said, but I will answer every question you wish to ask. I talked to them, told them who I was, why we were there, the purpose of this hearing, what the issues were, what was involved, and that they were the key witnesses in this case. I knew they had been subpoenaed, it was common knowledge. I told them the issue of majority was the issue, and I tried in shop language and lay language to explain the problem, the issue, and I invited them, if they would, to come forward and be interviewed by me and my associates so that we could elicit from them the facts surrounding the signing of the cards; told them clearly there was no threat of any job loss, no recrimination. We were sorry about it. We were sorry that their names were exposed; we didn't want to know them. We did not expose them. They were exposed by the Government when the Union brought its case. We wanted nothing but the truth. We didn't care where the chips fell, who was hurt, we wanted the truth. We told them that they would be under oath here and that's all we were interested in. We told them that their cards would be exposed at the hearing, and that we could not get them but there is no secret about it anymore. After I spoke to each of these groups , arrangements were made for them to come in groups, and still continue production the best we could on the shift, to be interviewed. They came in, in groups varying from 2 to 4, 5, maybe more, and they were talked to, not individually but with groups and the interviewer attempted to take notes, roughlonghand notes as to what they would have said because it was a tremendous chore procedurally to try to get from these wit- nesses the facts. This was done. And they were asked, invited into these inter- views. They were told they could come in if they wished, it was voluntary, they did not have to come. It was entirely up to them. They had no fear from any- body. They were told that the Company's lawyers had just as much right to talk to them as potential witnesses as the Government counsel or the IUE. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This we did, sir, and I am prepared to answer anybody's questions as to what we did. I am offering my associates to testify; I will testify under oath as to what we did. There's no secret. We were preparing for this case. We could not get the cards, as I told you before, we did not even know who signed cards. We could not see the cards, we could not get copies of the cards. We could see nothing until you directed the Government to turn them over to us last night. That's how our hands are tied to try to prepare for a law suit, and we did what we thought was honorable, fair, decent, as respectable lawyers representing a respectable Company. That's the story. Now, if counsel wants to examine every one of these people, sir, as to what we said in those meetings there is no objection. That is his privilege. I accept the statement of Kleeb as stating the facts, as opposed to the compara- tively indefinite recollection of Readnower. My confidence in the memory of Read- nower as to the events surrounding the whole circumstance of this case, before he testi- fied in this respect, has been shaken by his variances, his vagueness, and his obvious misstatements. I believe and find that Kleeb and his associates were acting properly in their professional capacity in the preparation of the defense of their client's case 13 In N.L.R.B. v. Johnnie's Poultry Co., and John Bishop Poultry Co., 344 F. 2d 617, 618, 619 (C.A. 8), the court, denying enforcement of the Board's order in 146 NLRB, 770 on the question of credibility and without adverting to the standards or safe- guards regarding the interrogation of employees by attorneys, simply wrote (in part) : The Examiner credited the testimony of the attorneys who took the employees' statements as being more accurate than that of the employees. With respect to the interviewing of employees, we have examined the record, the Examiner's report and the Board's decision, and without detailed discussion, we state that we are of the view that the Board's determination on this issue is not supported by substantial evidence. The facts are adequately set out in the Examiner's report which resulted in his conclusion, reading: "On all the evi- dence I find the interviews were confined to matters well within the scope of the amended charge and the complaint and were neither illegal nor coercive." In making a similar finding here, which I do, I do not believe I am transgressing Board doctrine as enunciated in 146 NLRB 770, 775. Counsel for the General Counsel in his brief on this point asserts that under no reasonable construction of privilege may the Respondent under the law interrogate one employee of another employee's union activity. I agree with the argument; however, nowhere in the record here can I find evidence that one employee interro- gated another concerning the second employee's union activity. Counsel asserts further that the interviews by counsel for the Respondent constitute a solicitation of revocation of union membership in violation of Section 8(a)(1) of the Act. There is no evidence in the record here that any one of Respondent's attorneys solicited revocation of union membership, either directly or by implication. Under the circumstances of this case the doctrine stated by the court in Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 743 (C.A.D.C.), is in point: The Board has held that "an employer is privileged to interview employees for the purpose of discovering facts within the limits of the issues raised by a complaint, where the employer, or its counsel, does so for the purpose of pre- paring its case for trial and does not go beyond the necessities of such prepara- tion to pry into matters of union membership, to discuss the nature or extent of union activity, to dissuade employees from joining or remaining members of a union, or otherwise to interfere with the statutory right to self-organization." Equally applicable is the doctrine stated in Texas Industries, Inc., etc. v. N.L.R.B., 336 F. 2d 128, 133 (C.A. 5), wherein the court held: It is apparent that the Joy Silk Mills rule calls for a delicate balance between the legitimate interest of the employer in preparing its case for trial, and the interest of the employee in being free from unwanted interrogation. N.L.R.B. V. Guild Industries Mfg. Corp., supra. Any interrogation by the employer relat- ing to union matters presents an ever present danger of coercing employees is violation of their § 7 rights. On the other hand, fairness to the employer dictates that he be given a reasonable opportunity to prepare his defense. Accommoda- Is See Canon 15, Canons of Professional Ethics. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 207 tion of these interests requires that the scope and manner of permissible ques- tioning be strictly confined to the necessities of trial preparation . See also W. T. Grant Co. v. N.L.R.B., 337 F . 2d 447 (C.A. 7); Johnnie's Poultry Co., 146 NLRB 770. 1. Alleged promises of economic benefits; the wage increase and promised benefits announced October 14; improbability of adverse effect On October 14, Plant Manager Boyer announced to the employees that pay increases, together with other economic benefits, would be made effective October 5. He stated further that at the conclusion of company studies, additional benefits would be granted to employees in the printing department. It was stipulated between the parties that on October 14, during working hours, Plant Manager Boyer assembled the hourly paid employees in groups in the cafeteria and announced that: (1) Retro- active to Monday, October 5, 1964, the wage rates for women would be increased 5 cents per hour, and the wage rates for men would be increased 7 cents per hour; (2) the principal sum of the life insurance for each employee would be increased from $3,500 to $5,000 effective immediately; and (3) the Company was in the process of looking into the bonus setup in the printing and slitting departments. Boyer testified that a pay increase was granted in 1963 as in prior years; that he and Walter Brockman, vice president, began a review of the pay situation during the middle of September 1964 and that a decision to grant the raise was actually made 2 or 3 days prior to October 14. The election had been held approximately 4 months before Boyer announced the increased benefits to the employees on October 14. It is undisputed that the wage increase followed the pattern established by the Company over a period of years. The complaint in Case No. 9-CA-3222 was issued on October 14. The complaint was amended at the hearing to include the allegation that by granting such wage increases and benefits the Respondent interfered with, restrained, and coerced its -employees in that by so doing, it impliedly did it to dissuade them from engaging in activities on behalf of the Union. The alleged violation must be found to exist, if it does, only if the other allegations of the complaint as amended are sustained and the objections sustained by the Regional Director be found to be valid grounds for the setting aside of the result of the election. The statements made by Boyer in his speech and the notice to employees contained certain predictions analogous to those of the union representatives that the Union would mean higher wages and benefits for the employees. It was then, and had been before, the well-known position of Boyer that the Union could really bring no bene- fits to the employees other than what they already had received. He pointed out, in his speech and in his letter, that the wages and conditions of other unionized plants within the Company were no better, relatively speaking, than the wages and condi- tions at the Lexington plant . He was engaged in what might be called partisan poli- tics or electioneering. Derek C. Bok, professor of law at the Harvard Law School, in his comprehensive article "The Regulation Of Campaign Tactics In Representation Elections Under The National Labor Relations Act," 78 Harv. L. Rev. No. 1, November 1964, p. 38, in discussing the rules governing representation elections , wrote (p. 66): At the heart of every election campaign lie the communications made by either side of the electorate-the stream of speeches , conversations , handbills, and letters that seek to influence the ultimate decision of the voters. In the representation election , particularly , it is through these partisan messages that the employee obtains the bulk of the information from which he must make his choice. Hence, the law has inevitably been drawn into the process of communi- cation to regulate the terms on which it is conducted . On the one hand, limits have been imposed to restrict the content of what may be said by either party. On the other , rules have been laid down to guarantee a reasonable opportunity to both sides to convey their views to the voters. Professor Bok, in discussing misleading assertions of fact , said (78 Harv . L. Rev. No. 1, supra) : The Board has long made it clear that it will not "police or censor propa- ganda used in the elections it conducts , but rather leaves to the good sense of the voters the appraisal of such matters , and to opposing parties the task of correct- ing inaccurate and untruthful statements ." Nevertheless , elections have been set aside "because of material misrepresentations of fact where ( 1) the employ- 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees would tend to give particular weight to the misrepresentation because it came from a party that had special knowledge of, or was in an authoritative position to know, the true facts, and (2) no other party had sufficient oppor- tunity to correct the misrepresentation before the election." For many years, the Board interpreted these rules rather liberally to apply only to serious misstatements of fact. More recently, however , courts of appeals have called upon the Board to scrutinize campaign propaganda with greater care. The Celanese litigation is illustrative [Celanese Corporation of America, 121 NLRB 303, enforcement denied 279 F. 2d 204 (C.A. 7), vacated per curiam and remanded, 365 U.S. 297, enforcement denied 291 F. 2d 224 (C.A. 7), cert. denied, 368 U.S. 925]. In this case, the employer drew the attention of his employees to a number of wage and fringe benefits and declared that these improvements were achieved through "individual progress " rather than the intervention of a union. To these remarks, the union replied: "The fact is that Celanese fringes, as well as other plant conditions, were won through collective bargaining [by the union at other Celanese plants]." In fact, a num- ber of the benefits referred to by the employer had been initiated through col- lective bargaining, but there were some that had been introduced on the employer's own initiative . Under these circumstances , the Board was inclined to regard the union's reply as a half-truth, at most, which did not warrant set- ting aside the election. The Seventh Circuit disagreed. Noting that the elec- tion had been won by only two votes, the court concluded that, "it cannot be said that the employees were acting under a correct understanding of the facts with respect to the matter in which employee benefits were gained at the time they cast their ballots ." In response to the Union's contention that it had not meant to imply that all Celanese fringes were by collective bargaining, the court declared: "If the author had intended to speak of some or several benefits, he would necessarily have had to employ a limiting adjective." [279 F. 2d at 205.] The Respondent in the brief filed on its behalf contends that when the alleged unlawful statements were made by Boyer, consideration should be given to the fact that Boyer was quoting his only campaign speech to the employee as a manager of the Lexington plant, and there can be no doubt as to the meaning of these remarks; that Boyer was simply making his own personal plea to the employees in "the grand tradition of all American campaign speeches-he was putting his reputation on the line and asking for a vote of confidence from his people ." There is merit to this argument. Again quoting Professor Bok, "The Regulation of Campaign Tactics In Represen- tation Elections Under The National Labor Relations Act," supra, pages 89-90: In light of what is now known , however, one may justly be skeptical about the effect of misleading statements on the outcome of elections. Although no specific rules can be laid down, it will normally be unwise to intervene unless the statements in question are highly material and substantially inaccurate . Certainly , one cannot quarrel with the Board for deciding to act after one union has fabricated ' a letter from a rival organizer confessing that he made exaggerated promises to the employees and declaring : "'I've never run into as dumb of bunch of people as work in this plant '." Nor does it seem unsound to intervene when the company or the union has grossly misrepresented the wages paid in several organized plants. On the other hand, there is little basis for upsetting an election because of the employer 's statement that the union dues are $5 per month rather than $4, or because a union has indicated that two-week vacations are granted in another company after one year, rather than three years, or that wage rates in a different firm are $1.81 when they actu- ally vary from a $1.73 to a $1 . 90. Indeed , most inaccurate assertions about conditions in a single company promise to be of rather slight importance where that company is only one of several firms discussed by the parties during the campaign . It is also unlikely that an election will have been affected where one side has prevailed by a.decisive margin . For only rarely will a misstate- ment be so effective as to alter the thinking of a substantial number of employ- ees. Too many voters will have already made up their minds; others will not place great importance on the particular matter that has been misrepresented; still others will be entirely unaware of the misstatement or instinctively distrust- ful of what the offending party has to say. Finally, as a general rule, it will be difficult to assert any confidence that an election has been won or lost on the basis of remarks that are ambiguous rather than plainly inaccurate . Statements that are unclear are unlikely to make a vivid impression of the employee, sur- DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 209 rounded as he is by a barrage of assertions from both sides . And those that do interpret such statements in a misleading fashion may well be just the employees , referred to by voting analysts, who are only grasping for reasons to support a decision already reached on other grounds. J. Comparative credibility of witnesses I heard the testimony of some 94 witnesses during the course of this case. Plant Manager Boyer was called as an adverse witness by the General Counsel, and later testified as a witness for the Respondent . William Edwards , Jr., Ruby Hughes, and Floyd Readnower were the chief witnesses for the General Counsel . The remaining witnesses were employees called either on behalf of General Counsel and the Charg- ing Party or by the Respondent . Generally speaking , I consider the employee wit- nesses to be credible witnesses insofar as ordinary recollection and relation of events on which they testified were concerned . The majority of the employees were com- paratively young, many in their early 'twenties ; with few exceptions , they impressed me with their forthright testimony. Boyer I consider to be an honest and forthright , albeit a partisan witness, and his testimony on the real material and relevant facts as fully disclosed by the record I believe to be accurate within the bounds of human fallibility regarding recollection. On the other hand, the demeanor ( behavior and manner of testifying ) of witnesses Edwards, Hughes, and Readnower causes me to doubt the accuracy of their testi- mony in many material respects. Credibility generally may be resolved by impeachment, substantial contradiction, or uncontroverted facts, and in many instances by objective observation of the wit- ness aimed to result in findings based on "consistent and inherent probabilities of testimony ." Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496. There "is no reason for refusing to accept everything a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial proceedings than to believe some and not all." N.L .R.B. v. Universal Camera Corporation , 179 F. 2d 749, 754 ( C.A. 2), reversed on other grounds 340 U.S. 474 . Accord: N.L .R.B. v. West Point Mfg. Co. (Lanett Mill), 245 F. 2d 783, 785 (C.A. 5); N.L.R .B. v. United Brotherhood of Carpenters and Joiners of America , Local 517, AFL (Gil Wyner Construction Co.), 230 F . 2d 256 , 259 (C.A. 1). Applying these principles to the testimony of Edwards, Hughes, and Readnower, I find substantial contradiction at times; on direct , their testimony was comprehensive and apparently straightforward enough. On cross-examination , as to each of them, many inconsistencies and contradictions appeared . Further than that , in connection with the identification of union authorization cards, so many contradictions appeared, particularly as to the testimony of Hughes in the identification and attempted authen- tication of these cards , that grave doubt is raised in my mind as to whether many of the cards obtained by her have any validity . These instances will be set forth more fully in the following discussion in respect to the individuals and cards said to have been signed by them. K. Failure of pi oof of union majority The Union 's petition for an election, received by the Board's Regional Office on April 24, estimated the appropriate unit to include 290 employees . IUE Representa- tive Edwards conceded at the hearing herein that the Union did not hold a majority on that date , nor on April 22, when he sent his letter to the Respondent asserting a majority and asking for recognition. Apparently , it is claimed the Union was refused recognition because, when the Employer appeared at the representation hear- ing on May 15, the facts established a question concerning representation and the appropriate unit. The contention of counsel for the General Counsel that statements made by representatives of the Employer at that hearing constituted a refusal to bargain are not only specious , but wholly contradicted by the record. The transcript of testimony in that hearing in Case No . 9-RC-5875 has been examined, and no refusal to bargain can be found therein. Admittedly , no card check was requested by the Union at any time , either before , at, or after that hearing. The complaint claims a union majority on May 9. The payroll of May 15 (the election date) discloses 307 names of employees in the unit as of that date; 3 names were dropped by a stipulation of the parties , leaving 304 employees , of which 153 would constitute a majority. A list showing the names of 305 employees on April 22, and 304 on April 23 and 24, stipulated between the parties as to its accuracy , shows that of those dates 153 would constitute a majority. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of the 183 authorization cards marked for identification at the hearing , 182 were received in evidence on offer by counsel for the General Counsel. Standing alone, this number of cards shows 30 over the required number of employees to constitute a majority in support of union representation . The number in actual fact falls short of a majority on any relevant date. April 22, 23, and 24 are the dates the Union sent its letter requesting recognition and filed its petition and the Employer 's response to the letter; May 15 is the date of the hearing in the representation case; June 3 is the date on which the company letter was sent to its employees ; and June 10 and 11 are the dates of Plant Manager Boyer's speeches. In April the number of cards bearing the names of employees not in the unit (6), plus those cards dated after April 24 (46), leaves 130, or 23 less than a majority. As to the May 15 date, the number of cards bearing the names of employees who were not in the unit (10 ), plus the cards dated after May 15 (22), when discarded leaves 150, or 3 less than a majority. The evidence shows, as contended by the Respondent Employer, that some cards must be excluded because they were signed without the knowledge or consent of the employees whose names appear thereon ; that other signed cards were not proved; and that other cards are not valid because of serious misrepresentations made to obtain signatures thereto. An examination of the stenographic transcript and each of the cards discloses the following: 1. Unproved cards Patricia Allen and Leslie Bargo: No evidence was adduced to authenticate these cards. Floyd Readnower, one of the two principal employee organizers, testified that he did not know either of these employees and could not authenticate either card. Shirley Ann Brunker: No testimony was offered in respect of this card, except that Readnower testified that he did not see her sign a card and that he could not identify the card presented. Bobby M. Curtis: A former employee, John Martin, testified that he saw Bobby Curtis sign a card but it was not signed for Martin and he could not swear that the card in evidence was the card which had been signed in his presence. David Dedman: This card does not bear the Board stamp. Edwards testified that he had inadvertently misplaced it and had not sent it in to the Board. John Martin testified that he saw Dedman sign a card but he could not swear that the card in evi- dence was the one he saw Dedman sign . The signature was not shown to be that of Dedman . If Dedman did sign a card, it is not shown that the card he signed was ever delivered. Richard D. Ferguson: No testimony was offered in respect of this card, except that Readnower testified that he could not identify the card presented. Geneva Hall: Geneva Hall was not called as a witness . Edwards testified that he did not know who turned in the card to him. The card bears an NLRB stamp as of June 22, 1964. Edwards testified that he ordinarily made a notation in the left-hand corner of each card when he sent out his letter acknowledging receipt but this card bears no such notation ; that this was because the card had no address ; that he did not see the card signed but that he had received it in the mail. The signature has not been proved and there is no proof that it was signed prior to the date of the election. Arnold Hatton, Louey R. Hatton, and James E. Shepherd: No testimony was offered to authenticate these cards and consequently they should be excluded. Ruby Mullins : Readnower did not see her sign . Her brother-in-law handed him the signed card. Readnower could not testify that it was her signature . There is no proof that Ruby Mullins signed this card ; it should be excluded. Leona Poe No testimony was offered in support of the validity of this card. Readnower could not identify it. J. D. Shadoan: Luther Jean Hall testified that he did not see Shadoan sign a card but that Shadoan 's wife had handed him a card which purported to be signed by Shadoan; that he did not know Shadoan 's signature . This card had not been proved. Jimmy Steele: No testimony was offered in support of the validity of this card. Readnower testified that he did not see Steele sign a card and could not identify the card. Bobby D. Tolson: No testimony was offered in support of the validity of this card. Readnower testified that he could not identify it. Lillie Wilson: No testimony in support of the validity of this card. Readnower could not identify it. Six additional cards must be considered unproved because of the lack of credibility of Ruby Hughes, the witness who attempted to validate them . None of these six persons testified. DIXIE CUP, DIVISION OF AMERICAN CAN CO MPANY 211 James Johnson, Millie Merritt, and Virginia Fay Patrick: The card of James John- son is dated February 6, 1964, and those of Millie Merritt and Virginia Fay Patrick, March 23, 1964. Ruby Hughes at first testified that she saw these persons signing the card on those dates . Cross-examination exposed the fact that these dates were the dates on which a United Mine Workers' card had been signed by these individuals. Ruby Hughes said that she had signed up quite a lot of employees on behalf of the Mine Workers and that she then got them to switch over and sign IUE cards; and that when she did this she put the same date on the IUE cards that had been on the Mine Workers' cards. Nancy Lou Poe: Readnower could not identify this card . Ruby Hughes attempted to identify it but left its validity in doubt. The other two cards in this group of six are those of Phillip R. Moore and Alma L. Toy. Ruby Hughes had originally been put on the stand and testified at great length about the number of cards she said she had seen signed by the individuals involved. Originally she did not offer testimony as to either of these cards . However, near the end of the hearing she was recalled and she said she then remembered that she saw both of these persons sign . Because of the undependable nature of her testimony in general, her testimony is not credited , and it is found that these two cards should be treated as not proved. The testimony of Ruby Hughes is discredited to the extent that it cannot be given weight in the absence of other corroborating testimony or circumstances . I doubt whether any employee card which Ruby Hughes alone identified should be considered as properly proved Other than the cards discussed , 19 other cards were identified only by the testimony of Ruby Hughes . They are: Sally M. Caswell, Meral K. Clifton, Bertha Irene Couch, William C. Couch, Eudora Creech, Barbara Frederick , James H. Frederick, Evelyn Funk , Wendell R. Green , Elizabeth Hammons, Juanita Humphrey , David H. Leath, Floy Mattingly , Callie Jo Pickett , Michael Porter, Loretta Rankin , Donald Shepherd , T. Shewmaker , and Larry L. Watts. It has been remarked that Hughes was generally evasive on cross -examination and in relating what she told employees to induce them to sign cards. Ruby Hughes was asked to look at the card of Della Hendrix. She was then asked, "Did you see this lady sign the card7 " Ruby answered , "Yes." She then said April 11, 1964, was the date on which it was signed . On cross-examination she changed this story and said that she had earlier testified that Della (Ruby's sister ) had signed a card for her but didn 't want Ruby to turn it in for fear Boyer would fire her. She admitted that she signed the card "off a card" which Della had given her. Ruby then explained that she had carried the card so long it became worn out and dirty and she went ahead and filled out another card with the exact date and signed it. Ruby next said Della finally told her to turn the card in. At the hearing she promised to look for the card allegedly signed by Della Hendrix but did not later produce it. She said her sister never signed a Mine Workers card. The testimony of Della Hendrix contradicts that of Ruby Hughes• she testified that she did sign a card for her sister in the summer of 1963 but not for the IUE; that this was the only union card she ever signed for her sister ; and that she first suspected that a card bearing her name had been turned in to the IUE when she received a subpena in the present case. If the testimony of Hendrix is credited , there can be no substance to Ruby's story that Della was afraid Boyer would fire her or that she finally told Ruby to turn the card in. While Della was waiting to testify at the session of hearing before me on December 16, she said, Ruby threatened that if Della caused her to "go to jail ," Ruby would tell her husband she had been "stepping out on him." The testimony of Hendrix stands unrefuted . I credit her testimony. Another indication of the unreliability of Hughes ' testimony lies in her statement in connection with the card of Kate Stinnett . She testified that Stinnett signed a card for her on May 22, 1964 , and related what she told Stinnett at the time Stinnett testi- fied that she signed for Floyd Readnower and that there was no one with Readnower at the time. Hughes testified she was not being paid by the IUE to get it into the plant and did not remember telling anyone that she was ; Katheryn Booth testified that Ruby told her if the IUE got in , Ruby would be paid a lump sum of money. Hughes testified that in the early part of the campaign Bill Foster offered to bet her $50 that the Union would never get into the plant ; Foster denied this. He testified that a year, a year and a half, or possibly 2 years ago , when the United Mine Workers were trying to get in, and before he was a supervisor , he did make a $50 bet with her, that they shook hands on it , but that she never paid . Hughes testified that Douglas and Patricia Blair signed the same day in her presence ; that she saw Patricia Blair sign it. Douglas Blair said that his wife had signed prior to the date on which he 2 21-3 74-6 6-v o f 157-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed. Alfred Deskins testified that Floyd Readnower and Edwards came to his home; and that Readnower handed him the card he signed. Ruby Hughes testified that she saw him sign. 2. Unauthorized signatures Judy G. Mathis: Her husband, Lonnie, who is also an employee, testified that he put her name on the card. "She didn't want to fool with signing a card and I told her 'I'll just sign them and send them in because the card was only for an election, you could vote how you wanted to."' Mathis told her husband to put her name on the card; her testimony indicates that she had not authorized her husband to sign her name to the card. Further, she and her husband both testified that the signature on her card was not in her husband's handwriting. Edwards testified that Judy's card was sent back to obtain a proper signature. Trudy Treadway: This employee testified that she had signed a card but that the signature on the card in evidence was not hers She said that she had filled out a card and had given it to Don Blackwell. There is no proof that the card given to Don Blackwell was ever delivered to Edwards. The card in evidence was not signed by her. Allene Thompson Allene Thompson, called as a witness for the General Counsel, testified that she did not sign the card which purported to bear her signature. It was shown that her husband had signed her name without her approval. Her husband had given the card to Readnower with the understanding that Readnower was to obtain her approval before the card was mailed in. Readnower's testimony shows that he turned the card in without Allene's approval and without her authority. The card is therefore invalid. A card signed by employee Valerie Locker was withdrawn. When asked why it was being withdrawn, counsel for the General Counsel stated that Valerie Locker had told him that she had not signed the card. 3. Misrepresentations in securing cards Billy R. and Linda L. Amis• Clarence Martin, Edwards, and Readnower came to their home to discuss the Union with Mr. and Mrs. Amis. "Well, they had a little pamphlet they said was the Easton contract, and that when we got our .05 raise that Easton had received 10...." Readnower was the one who made the untruthful statement. The union representatives also said that they were going to use the card for an election. Mary Jane Black: Mary Jane Black's husband had been terminated January 3, 1964, for excessive absenteeism. He drove his wife to work while unemployed. Edwards told Black that ". . . if the Union got in that I could be rehired plus all backpay, plus all seniority benefits." Edwards gave no explanation as to how the Union could do this. Black related this to his wife before she had signed a card. The testimony of Mary Black confirmed her husband's story. She told her husband she didn't think she wanted to sign; he said he wanted her to because Edwards said he would get Jackie Black's job back with backpay if he could get her to sign the card. This, the Respondent urges, was clearly an improper inducement offered to Mary Jane Black to sign the card; that a reasonable inference was that Edwards would make a false claim that her husband had been discharged because of union activity in order to obtain his reinstatement with backpay; and that under the circumstances, her card is invalid because she did not want to sign and did so only because of improper inducement by Edwards. Katheryn Booth • Ruby Hughes came to her home, she testified, to get her to sign: "I asked her what the purpose was of signing the card, and she told me that it would give us a right to have an election, and if we didn't we didn't have to vote for it; that they just wanted to get in there and give the people a chance to, you know, vote for the way they wanted, whichever they wanted, the union in or out. And she told me different points. I mean I wanted to hear both sides of what they was going to do, and what they could do. And she said we would have better seniority, we would be able to use it, put it to use, and better pay, wages, and she said that it wasn't necessary to have my vote, or card signed, because she already had 200 signed." Q. Mrs. Booth, was any reference made in her conversation to an initiation fee? A. She said that-well, this was when I was riding with her. She said this to me. We were talking, and I asked her about it, and she said , yes, that if you had not signed a card before, you would have to pay an initiation fee of $50.00 to get in. Q. Did she say when you would have to pay the $50.009 A. No, sir, she did not. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 213 Q. But she did say you would have to pay $50 00 if you hadn't signed a card. A. Yes, sir. She said if you had signed the card, you would not have to; but if you had not signed the card, you would have to pay the dues Q. When did she say this to you, do you remember, Mrs. Booth9 A. That was during the time that I was riding with her, I don't know exactly. Q. Do you recollect whether it was before you signed the card? A. Yes, it was before. She did not read the card; she still doesn't know what it says: "I just wanted to sign it and get them to let me alone." Hughes told her if the Union got in she would be paid a lump sum of money. Mildred Carroll: She testified that Edwards told her that the purpose of the card was only to "vote on the union, an election on the union." Molly Caskey: She signed a card for Floyd Readnower at a drive-in restaurant with her brother at night after work, although she did not read the card. He told her the purpose "of the card was for the election so that we might have a choice to vote, you know, yes or no." When asked if she ever requested the Union to return her card, she answered she did not ask them but she would have gladly taken it back. Margie L. Chapman: Readnower told her they would make more money and would get 2 weeks' vacation with pay after 3 years' service; the card would be for a vote; the cards were secret; and they would be locked up and "no one would see them." She did not read the card before signing it. Hetty B. Caudill. Doyle Rambo sent her the card she signed. Readnower had pre- viously attempted to get her to sign; he told her the purpose of the card was "just" to get an election from the Board . Charles Land also talked to her about signing. He told her the only purpose for signing the card was to get a secret election, but she could vote as she wished; she said this was all over the plant; she thought everyone believed this; and she also heard rumors around the plant that if she did not sign until after the election, she would have to pay $25 initiation fee. The card is invalid because of the misrepresentation as to the use of the card and the initiation fee. Carol Caudill: She signed a card for Doyle Rambo, who told her he wanted the card "just for an election ." He gave no other reason . He told her this before she signed the card without reading it. Lola F. Chowning: Lola Chowning testified she signed for Don Blackwell, that he told her "it was only to get an election," "that the election would be secret," and that she could vote any way she wished. He told her that if she did not sign and if the Union got in she would have to pay a $50 fee to the Union. Joe Brewster, who also tried to get her to sign , told her that . if she did not sign the Union would find some way to make it hard for her,so that she would want to quit her job. This was before she signed . This card is invalid because of the misrepresentation and threats. Harold Combs: Combs signed a card; the date, April 1, 1964, is not in his hand- writing; he signed for Donald Blackwell but can't remember when, except that he signed before the election. Blackwell had been after him for over a week to get him to sign; Combs repeatedly told Blackwell he did not want to sign, and finally Blackwell said: "Either sign the card or we end our friendship right here "; Combs signed the card without reading it because he didn't want that to happen ; Blackwell told him all my signature was to get up a petition so they could have an election for a union, on the union." Georgena Conn: She signed a card for Gillum without reading it . Gillum told her she would not have to pay an initiation fee or dues if she signed a card, but that if the Union won the election and she had not signed a card, she would have to pay; Gillum also said the purpose of signing the card was to get an election. She signed the card at night, without reading it. The Respondent contends she cannot be bound by the print which was not in accord with what she was told. I find the card to be invalid because she was told that the purpose of the card was to aid in securing an election. Lois Cooper : She testified she signed for Readnower; he said "... the only reason they wanted the card signed was to get the vote so people could vote, then they would be destroyed"; she did not read the card, before signing the card she heard rumors or shop talk that there would be a $25 or $35 initiation fee "if you didn't sign before the Union got in"; and she also heard rumors that employees ' cars would be set on fire if they didn't sign . The card is invalid because of the representation that the card was to be used for an election only, and because of the initiation fee rumor which has been shown to have been circulated by union solicitors. Arthur B. Dailey: Readnower gave a card to Dailey at work, saying that the pur- pose of the card was only to get an election , and that he could vote any way he wanted. Dailey did not read the card. - 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas P. Davis: Readnower testified he saw Davis sign; Davis later testified that he signed. Davis was working night shift and was home sleeping when Read- nower woke him up to talk union. (Davis previously had been approached by Readnower at the plant and had refused to sign). After waking him up, Readnower "kept talking and talking and talking and talking." Readnower said the signature was "just for an election; and what we voted was up to ourselves, whether it was yes or whether it was no. So I signed it just to get him out of my apartment." Later Davis went to a meeting at Holiday Inn. After this Davis asked Readnower to tear his card up. Readnower said it would not be necessary. "No, sir. He said that the way we voted would tell whether the union got in or didn't get in. This was all secret, and if it didn't get in, that it-would be torn up, that nobody would ever see it." Respondent contends that Davis revoked his card and that it is not valid for this reason; that if it should be held that his efforts at revocation were insufficient, the card is still invalid because of Readnower's statements to him; that the original representation "just for an election" is sufficient to invalidate it; and, moreover, if the revocation was insuffi- cient, it was because Readnower dissuaded Davis by in effect telling him that the card was in no way binding upon him. Davis further testified that he had heard various rumors around the plant before he signed the card; that there were representa- tions by Readnower and Edwards that the Darlington plant was going to shut down and that employees would be coming to Lexington to displace Lexington employees if they did not protect themselves by joining the Union; and that Edwards said he had inside information on this. Stanley Frederick: Readnower and Hughes came to his home and talked to him about signing a card while his wife was preparing dinner and he was rushing to get to his part-time job at a filling station. He was interested in the talk of better wages. Readnower had "a booklet, a contract from Easton about the wages," purporting to show that Easton paid $2.10 per hour as against the $1.95 Frederick was making for the same type job, told him if he did not sign the card he would have to pay an initiation fee of $25 or $50, and also said "the cards would be secret regardless of the outcome, and it was to get an election, and that was for its only purpose." Frederick was in a hurry to get to work and did' not read the card. Mary Jo Gibson: Readnower solicited her signature, said the purpose of the card was for an election only, and said it did not make any difference how she voted. "You could vote yes or you could vote no." She did not read the card. Readnower had the "Easton contract with him, and he said after you were there three years you got two weeks' vacation." Readnower did not show her this provision in the Easton contract but said it was there. The Gibson card is invalid both by reason of the "election only" representation and the misrepresentation with respect to the Easton contract. Jack V. Hall: Readnower told him they were getting more money in Easton than the Company was paying in Lexington: "Readnower said he would get ahold of a contract of the other company, compare the wages with Dixie Cup and Easton. He said they made more money. He didn't say exactly how much more money. He said they made a lot more money, but I have heard rumors all through that they made 30 to 40 cents. Vacation was two weeks after being employed three years and their hospitalization was better and benefits like that." Ronnie Hopkins: Hopkins signed for Charles Land the latter part of May. He had been arguing with Land about the matter for 2 or 3 weeks Land told him if he signed a card it would not cost him any money but, if he waited until after the elec- tion "if the Union won you would have to pay about $50." Land also said the rea- son the Union wanted the card was to get a secret election from the Board. Palmer Howell: Readnower testified that Palmer Howell gave him his wife's card and signed his own at the same time, although Palmer's card was dated March 31 and Barbara's card was dated April 1. Readnower testified that Palmer signed March 31; Barbara testified that she thought she signed on April 1. Readnower, returning to the stand after a 5-minute recess, testified he had made a mistake on the Howell cards; that the incident he had confused was while talking to Yvonne Blackburn in their car he asked them to sign and they told him they already had, they said they had already turned their cards in. Readnower then testified he could not identify either of the Howell cards. The General Counsel called Palmer Howell as a witness in order to prove his card. He testified that he signed the card on March 31 and returned it to Phillip Wooldridge. Howell was on vacation at the time-Wooldridge asked him if he would like to sign it so they could get an election and "get it over with." Howell said he would and signed the card without reading it This case further exemplifies the looseness of testimony on the part of Readnower, and which casts the shadow of doubt upon much of his other testimony. Readnower was very positive that Howell handed him his card and his wife's in her absence. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 215 , When tripped up by the discrepancy in dates he said he had confused it with an incident when Howell, his wife, and a third person were in the Howell's car. This is not believable. The clear inference is that a comment with respect to the discrep- ancy in dates upset his first attempt to identify the cards and he came up with a poor explanation in an effort to explain his first statement. Howell signed to get the elec- tion over with. Since he signed for that purpose without reading the card, an infer- ence may be drawn that he signed the card only for the purpose of getting an election. Boyd Ingram: Ingram signed a card for Charles Land who had approached him several times to sign. Land said the card "would be kept secret, regardless of how the election turned out, and that we could vote any way we wanted to." Ingram attended an IUE meeting after he signed , when Edwards said that "the ones (employ- ees) who didn't sign the cards could be fined." Edwards called some of those who did not sign "yellow." "And there was especially one, the guard had something about the Union, and they were going to try to get him fired for speaking against the Union." Before he signed Ingram said he would sign , but take the cards home "and forget it." Ingram 's card casts further doubt on Ruby Hughes' credibility. She testified she saw him sign; she did not mention Charles Land as procuring the signa- ture and Ingram did not mention Hughes as being present. On cross-examination Hughes said Land was present. Jack S. Jewell: Gene Hall asked him to sign, he said ; he signed in the toilet at the plant; he did not read the card; Hall told him the majority had already signed; Hall "said it was something to do with an election for a Union coming in." Before that time Hall had told him "... if the guys hadn' t signed if the Union came in the initiation fee would be $55 for those who didn't sign." Jewell said he also heard a rumor in the cafeteria "that those that didn't sign it that their cars would be dam- aged ...... This was before he signed the card. He also heard a rumor that the cards would be secret. The Respondent urges and I agree that this card is clearly invalid on the basis of the initiation fee, the "majority" misrepresentation , and the secrecy representation ; that it is also a good example of the Union's tactics in obtain- ing the "last" cards. (Jewell signed May 12, 1964. In effect he was told that a majority had signed so the Union was in-that his signing made no difference-and that by signing now he would save the initiation fee.) Charles S. Johnson: Johnson signed a card for Barbara Howell on June 4. She told him before he signed that it would save him $25 if he signed a card before the election; that if he failed to sign and waited till after the election it would cost him $25. The Respondent cites this as another example of the Union's "pre-election blitz of initiation fee misrepresentations." Ernest C. Kidd, Jr.: He signed for Readnower. A. Well, we had several talks , I mean not just Mr . Readnower , but with other people that I assume that were for the Union the way they talked and had cards to be signed to get an election for the Union regardless of how you vote. Q. And you could vote any way you wanted to? A. Absolutely, secret ballot. That's how I understood it. Q. You had been told that by those people trying to get Union cards from you? A. Well, yes, sir. Q. Do you recall now any people other than Floyd Readnower that told you that that was the purpose of your signing a card? A. Miss Hughes. Q. That's Mrs. Hughes, Ruby Hughes? A. Yes, sir. Bobbie J. Kenley: Ruby Hughes and James Wiley asked him to sign a card , telling him that "the only purpose of signing the card was to see whether or not a majority of the people in a secret election wanted the union ." He was told this a number of times before he signed the card. Edwards told him that the Company was going to shut down its Darlington , South Carolina, plant and bring the mechanics to Lexing- ton and that his job would be in danger ; Wiley told him before he signed that "Forty some cents an hour they were getting at Easton greater than they were getting in Lexington." Charlene Kimbleton : Readnower brought a card to her home, talked about work- ing conditions , more pay, vacations, and sick leave "and then he started talking about the initiation fee."" "He said it was $25." "He said , well, everyone that signed the card would not have to pay the initiation fee. He said the Union was just as good as in because the majority had already signed cards . And that if I hadn 't signed one, that I would have to pay the $25 initiation ' fee. He said the majority of the day 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift had signed. He said that the card was `just for an election: He said that it would be strictly secret; that no one would know who were signing the cards ... . We could vote as we pleased." She did not read the card. Robert Lainhart: Lainhart testified he signed for John Martin, who said if he did not sign "now" it would cost him $20 or $25 later on when the Union got in. Mildred Lockard: Mildred Lockard testified that she signed for Faye Gillum on May 6. She had previously talked to both Readnnower and Edwards. She testified that she heard rumors that "if you didn't sign one [union card] you would be charged an initiation fee of $25 if it came in"; she signed it for this reason. She heard rumors that cars of persons who did not sign would be torn up in the parking lot. No one told her this directly but she heard all over the plant that they were going to do this or to do that. They heard rumors every day: that if she did not sign a card and back the Union they were going to catch up with her and give her a whipping; that union workers started disgraceful rumors on people who failed to sign cards. She said she heard all these rumors before she signed the card. Clarence Martin, Jr.: Charles Land called Clarence Martin on the telephone and talked about signing a card. Later Land approached him in the factory. On this occasion Land said there would be a $25 fee if "you didn' t sign a card." Martin did not sign at this time. Later Billy Amis asked him to stop at his home on the way to work, saying that Readnower would be there to talk to Amis and his wife and would like for Martin to stop in. He met Readnower and Edwards at Amis' house; Readnower had the Easton contract, told Martin the Easton vacation was 2 weeks after 3 years' service, and, according to the quotations made from the Easton con- tract, Martin was being underpaid about 40 to 50 cents per hour. Edwards said the cards would be put under lock and key; "that no one would know anything about it except the ones that was in the presence when it was signed." Martin did not have the Easton contract in his possession, nor did he read the union card. The Respond- ent says the card is invalid because of the initiation fee misrepresentation by Charles Land, who was identified by Edwards as having been very active in the union cam- paign , because of the misrepresentations with relation to the Easton contract, and because the present attempted use of the card as a power of attorney is inconsistent with the representation that it would remain secret. The misrepresentation concern- ing the initiation fee I believe sufficient to void the card. Bradford S. Padgett, Jr.: No one directly told him the purpose of the card on the day he signed it. "I understood it was for the purpose of the election, being able to have the election after so many cards were obtained." "Was what you heard about the Easton contract before you signed the card different from what Mr. Boyer told you in his speech?" "Yes, sir." "You had been told that the wages were higher than the Easton contract really contained were you not?" "Yes, sir." Barry W. Reams: Edwards gave him a card, and he talked to Readnower before he signed it: "I would maybe speak to him, say something about it every day." Reams understood the purpose of the card was "only for an election." Readnower said "That they had a number of cards signed, in order to get a petition they had to have more cards and just to get an election. We could vote any way we wanted to." Reams glanced at the card but did not read it. Earl and Genevie Rust: The Rust cards are dated February 15. Edwards first testified that Readnower and he were present when both Rusts signed; that each Rust signed and he again stated that he and Readnower were at their home when they signed . The next day Edwards testified he made a mistake about these cards, that they were received by mail, and that he and Readnower talked to the Rusts about her sister joining the Union and it was this conversation he had confused. Earl Rust testified Readnower came to his house and first talked to him outside , telling him ". . he had to have more to bring the election to Dixie Cup." They then went into the house and Readnower told Mrs. Rust the same thing Readnower told him, the cards wouldn't be known to anyone and that no one else could see them. Rust told Read- nower he didn't want anyone to know he signed and Readnower assured him no one would know. Mrs. Rust testified that the conversation with Readnower was at the Blue Ox Restaurant, but confirms that the purpose of signing was to get an election; that Readnower said they almost had enough cards to get an election; that the Darling- ton plant was being closed and that there would be mechanics and operators from there to take over the jobs in Lexington; and that Easton employees were being paid 30 to 40 cents per hour more than in Lexington. • Tommy Shewmaker: He printed his name on the card. Although his name is written in script on the card above the printing, he was unable to explain the signa- ture in script. Shewmaker said he heard a rumor, that "if the people didn't sign a card there would be an initiation fee of $25.00..: ; that he did not write his name DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 217 in script on the card, and had no knowledge as to how it got on the card. Shewmaker read the card. He said that he understood that it meant that "it was to get a union in for an election and let the people decide whether they wanted it or not." Tina Shifflett: She signed for Floyd Readnower on May 22. She had been asked to sign dozens of times by Readnower and Hughes. Readnower told her "that 90 some percent had already signed, and I might as well go along for the ride ..... Edwards told her Dixie was paying $2.37 per hour for "reinspectors" as against the Lexington rate of $1.95, Readnower repeated that the Union was in and that she might as well sign a card, "that they were in anyway, and if I signed it would be better for me. I mean what I understood the card was for, was for the election. And I knew when I got in there I could do what I wanted to do. I didn't have to vote for them if I didn't want to. So I signed. I just-well I wanted the election over with." She did not read the card before signing it. She went to talk to Boyer, she said, because she had heard "a lot of rumors of things that were going to happen, and I didn't want any part of it"; Readnower told her it would be better for her if she signed; she went to see Boyer because she was sorry she had signed a card. Carl and Patsy Standifer: Carl Standifer and his wife received cards passed out by Edwards at "the end of the road." They took the cards home, but did not sign them for several days. Before signing they heard rumors-"that the Easton plant made more money than we did. They had a two weeks' vacation after three years whereas 'we was,only getting the one week.' " They also heard a rumor that the Darlington plant was closing down and sending all of their people to Lexington; that Darlington mechanics would push the Lexington ones out of their jobs because of seniority. After hearing these rumors they signed cards and sent them in. Patsy Standifer testified she discussed the card with her husband before signing it. It clearly appears that the Standifers signed cards as a direct result of false rumors among the employees; the same stories given directly by union adherents to other employees to obtain their signatures. Jo Steele: Charles Land came to her home on May 20 when she signed a card. Earlier Readnower and Hughes had called on her. ". . . and I told Ruby and Floyd both that I didn't know enough about any of it to put my name on anything. And both of them assured me that signing the card had nothing to do with the way you decided to vote ... and if I signed the card and later decided that I wanted to vote no, that I still had the freedom to vote ... and to sign the card would mean no Union dues if the Union did come in." If she signed the card it would mean no union dues if the Union got in. They told her they had over 200 signed, that the Union would definitely get in. They said no one would ever know who signed the cards except themselves and Edwards. Kate Stinnett: Kate Stinnett testified that she signed a card dated May 27, at home, for Readnower. "He said that if we put our name on these that they would just come in for a vote, it would be secret." Ruby Hughes had testified that she could identify this card, that "she signed for me." Hughes said May 27 was the correct date. When asked what she told Stinnett when she got the card signed, she answered, "I told her about the benefits we could get from the union, the seniority which would mean more to all of us, this time when we had a Union." Stinnett"s testimony indicates another untruth by Ruby Hughes, and further indicates that her testimony in general is not credible unless substantiated. The validity of the card is questionable because of Readnower's representation that the card was "just for a vote" and would be secret. Loretta Tharp: Readnower and Edward called at her home. Readnower told her, she said, that when Lexington received a 5-cent increase the other company plants got a 10-cent-per-hour raise; that he mentioned the 2 weeks' vacation after 3 years, and that the purpose of the card was "to get an election ... the cards would be kept secret, and no one would know about them." James Thompson: He signed for Readnower, who was trying out a car and asked Thompson to go along: They ran out of gas and while stopped Readnower pulled out a card and started talking about ". . . they either had enough cards signed to get the election or he needed a few more to get the election." He asked Thompson to sign his wife's name. Thompson said he glanced over the card, thinks he read it, but is not positive. Before signing the card he had heard a rumor on the union initiation fee, that it would be $25 or $50 if he failed to sign a card before the election. Jean Traylor: Phyllis Gill handed her a card, saying "... nobody would never know we signed the-card; it would be for a free election. Before that she was talk- ing about we wouldn't have a job if we didn't sign a card." Phyliss Gill told her that there would be a $50 initiation fee if she did not sign a card before the Union came in . Jean Traylor signed the card without reading it. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ellene VanWinkle: Floyd Readnower talked to her about signing a card: "He said the card was to get a secure election; that it was to secure him of getting an election at the shop; that after we had been there three years that we would get two weeks' vacation with pay, and better working conditions and security of your job. He said the Easton contract provided for two weeks' vacation after three years. He said that none but Ellene, Readnower and Edwards would see the card." Readnower told her he had over 200 cards signed. Phillip Wooldridge: He signed the card for John Martin. The initiation fee came up in discussions with Martin prior to the signing of the card: . . if the Union was in and they didn't have a card why the fee possibly could be doubled." John Martin as a witness acknowledges that the initiation fee representation was $25 or $50, and said Edwards had told him that the Union had waived all initiation fees and that is what he told each employee, and told this to Wooldridge. An initiation fee misrepre- sentation is apparent here; Readnower testified that he saw Wooldridge sign on March 31, 1964. The evidence is conclusive that the signatures on the authorization cards of Della Hendrix, Trudy Treadway, Judy Mathis, and Allene Thompson are not their signa- tures and were placed on the cards without their consent. Thus, there are left 30 less than a majority in April, or 7 less than a majority as of May 15, whichever date is chosen. Under the most liberal construction of the rules of evidence, the cards of Patricia Allen, Leslie Bargo, Bobby Curtis, David Dedman, Richard D. Ferguson, Geneva Hall, Arnold and Louey R. Hatton, Ruby Mullins, Leona Poe, J. D. Shadoan, Jimmy Steele, James E. Shepard, Bobbie D. Tolson, and Lillie Wilson, 15 in number, must be excluded as not being properly proven or authenticated. (See 7 Wigmore, Evi- dence, § 2130-2135, 3d ed.) Thus, there are left 45 less than a majority in April, and 22 less than a majority as of May 15, whichever date is chosen. The carefree and careless identification of some six cards identified by Ruby Hughes, together with her discredited testimony on other vital aspects of the case, casts grave doubt on their validity. Were these cards disregarded, as I believe they should be, then the minus majorities of April and May 15 would be 51 and 28, respectively. Englewood Lumber Company, 130 NLRB 394; Cumberland Shoe Corporation, 144 NLRB 1268. I find that the Union did not represent a majority of the employees of the Respond- ent when it requested recognition and that the Respondent, when it refused to recog- nize the Union, did not violate Section 8(a) (5) of the Act. The Respondent urges that 45 authorization cards be held to be invalid because signatures thereto were obtained by threats and misrepresentations, or both. Although it is conclusive on the evidence herein that the Union at no time held a sufficient number of cards to establish a majority in the bargaining unit, it seems appropriate to remark that the facts show that misrepresentations and perhaps threats were made by union adherents to obtain signatures to these cards. The constitution of the 1UE provides that "Local unions shall charge not less than two dollars ($2.00) nor more than ten ($10.00) for each new member for initiation fee." The minimum monthly dues shall be $4, provided that every local affiliated with the IUE in 1960, whose monthly dues are less than $5, shall have its monthly dues raised not less than 75 cents effective January 1, 1961. It is settled law that an employee's execution of a clear and unambiguous card authorizing a union to act as his bargaining representative constitutes an effective designation of that union as the employee's bargaining agent, regardless of any unexpressed reservations the employee might have. N.L.R.B. v. Gene Hyde d/b/a Hyde's Supermarket, 339 F. 2d 568, 570-571 (C.A. 9); N.L.R.B. v. Geigy Company, Inc., 211 F. 2d 553, 556 (C.A. 9), cert. denied 348 U.S. 821; N.L.R.B. v. Greenfield Components Corporation, 317 F. 2d 85, 89 (C.A. 1); N.L.R.B. v. Gorbea, Perez & Morell, S. en C., 300 F. 2d 886, 887 (C.A. 1); Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 743 (C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v. Consolidated Machine Tool Corporation, 163 F. 2d 376, 378 (C.A. 2), cert. denied 322 U.S. 824. There is, however, an exception to this rule: Where the union misrepresents the purpose of such cards to the employees by telling them that the cards will be used only to obtain a secret ballot election, the Board has invalidated otherwise valid authorization cards on the ground that the signers have not "clearly manifested an intention to designate the [u]nion as their bargaining representative." Englewood Lumber Company, 130 NLRB 394, 395; accord, Fred Snow, et al. d/b/a Snow & Sons, 134 NLRB 709, 710, enfd. 308 F. 2d 687, 693 (C.A. 9); Morris & Associates, Inc., 138 NLRB 1160, 1164, 1176-1177; see also West Coast Luggage Co., 105 NLRB 414, 418 (card invalidated where employee coerced into signing it); N.L.R.B. V. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 219 H. Rohtstein & Co., Inc., 266 F. 2d 407, 409-410 (C.A. 1) (card invalidated where union representative falsely told employee that a majority of the other employees had already signed authorization cards). An analysis of union authorization cards marked in evidence as General Counsel's Exhibit 12-1 to 12-182, inclusive, furnishes surface indication that at the time of filing the petition in Case No. 9-RC-5875, the Union held not more than 47 cards dated either on or prior to April 24 (182-135) : TABULATION OF UNION CARDS AS OF APRIL 22, 23, and 24, 1964 4/22/64 4/23/64 4/24/64 Total on Stipulated 4/22/64 list (Respondent's Exhibit 15) ---------------------- 306 306 306 Less. John C. Lewis (Supervisor, Tr. 88)______________________________________ 1 1 1 305 305 305 Less Sara Shore (Resigned 4/23/64)____________________________________________ 1 1 Total Unit--------------------------------------------------------------------- 305 304 304 Majority----------------------------------------------------------------------- 153 153 153 Total cards in evidence--------------------------------------------------------- 182 182 182 Less Cards, included in 182, bearing names not in unit (Respondent's Exhibit 15) Exhibit Name 12-88-_-___ Joseph B Brewster_________________ (Employed 5/4/64) 12-27_____- Moral K Clifton___________________ (Employer 5/8/64) 12-127_-_-- Alvernon Jackson___________________ (Terminated) 12-140_____ Harry B Martin------------------- (Terminated) 12-142_____ John T Martin _____________________ (Terminated) 12-20______ Phyllis Young-------- ------------- (Terminated) 6 176 6 176 Less Cards dated after 4/24/64 Exhibit Name Card Dated 12-59___-__ Patricia A Allen____________________ 5/7/64 12-60__-___ Leshe Barge ________________________ 5/22/64 12-91 ------ Miller Bryant_______________________ 4/26/64 12-26 ------ Sally M Caswell____________________ 4/27/64 12-62_____- Betty B Caudill------------------- 4/30/64 12-103____- Juanita Collett______________________ 5/22/64 12-61______ Georgena Conn_____________________ 5/12/64 12-65__-_-_ David Dedman_____________________ 5/18/64 12-119____- Wallace Gilliland___________________ 4/26/64 12-7-______ Geneva Hall------------------------ "5" (Tr 130, 135). 12-180_-___ Luther Gene Hall___________________ 5/9/64 12-8__---__ Maxine (Delohia M) Hall __-________ 5/21/64 12-67______ Ronnie Hopkins____________________ Undated (NLRB stamp 6- 22, latter May-Tr 295). 12-41_-____ Juanita (Wanda) Humphrey-------- 5/27/64 12-128_-__- Jack L Jewell______________________ 5/12/64 12-69______ Charles S. Johnson__________________ 6/4/64 12-72______ Bobbie Kenley______________________ 4/29/64 12-73______ Carol (Ada C ) King________________ 5/23/64 12-74------ Ernest King------------------------ 5/12/64 12-135----- Mildred Lockard____________________ 5/6/64 6 176 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exhibit Name Card Dated 12-144 Pauline M McCarty________________ 5/29/64 12-141 Jerry L Martin_____________________ Undated (NLRB stamp 6- 22, a week or two before election-Tr 303). 12-45 ------ Floy M Mattingly------------------ 5/29/64 12-181__ - Robert S. Plunkett_________________ 5/14/64 12-151 ----- Nancy Lou Poe_____________________ 5/6/64 12-153 ----- Vivian Louise Rigney_______________ 6/3/64 12-154 ----- Agnes Sandford_____________________ 4/30/64 12-155 ----- James Sanford______________________ 5/2/64 12-79 ------ JamesD Shadoan__________________ 6/5/64 12-80 ------ Juanita Shadoan____________________ 5/25/63 12-52 ------ Donald Shepherd___________________ 5/20/64 12-78 ------ James Shepherd ____________________ 5/25/64 12-159 ----- Tina Shiffiett_______________________ 5/22/64 12-81 ------ Helen M Sosby_____________________ 4/28/64 12-54 ------ Emma Jo Steele____________________ 5/20/64 12-56 ------ Kate Stmnett_______________________ 2/27/64 12-161 ---- Stanley Stinnett____________________ 5/6/64 12-166 ----- Janie Thomas_______________________ 5/22/64 12-183- ---- Allene Thompson___________________ Undated (signed by hus- band first part of May- Tr 307) 12-167 ----- James Thompson___________________ 4/26/64 12-174 ----- Ellene VanWinkle___________________ 5/22/64 41 41 41 135 135 135 Another tabulation shows that on May 15, when the Employer is alleged to have refused to bargain with the Union, the very greatest number of authorization cards held by the Union would have been 150. TABULATION OF UNION CARDS AS OF MAY 15, 1964 5/15/64 Total on Stipulated May 15, 1964 list (General Counsel's Exhibit 10)_________________________ 307 Less John C Lewis (Supervisor, Tr. 88) James Otto (Temporary, Tr 88) Clyde Owens (Temporary, Tr 89) 3 Total Unit----------------------------------------------------------------------------------- 304 Majority------------------------------------------------------------------------------------- 153 Total cards in evidence----------------------------------------------------------------------- 182 Less Cards, included in 182, bearing names not in unit (General Counsel's Exhibit 10) Exhibit Name 12-89______ Ronald Brown__________________________ (Terminated prior to 5/15) 12-101_____ Carl Chapman__________________________ (Terminated prior to 5/15) 12-29-_____ William C Couch______________________ (Terminated prior to 5/15) 12-33______ Pasquale P Forcelli_____________________ (Terminated prior to 5/15) 12-121----- Lotus G Gillum________________________ (Terminated prior to 5/15) 12-127----- Alvernon Jackson_______________________ (Terminated prior to 4/22) 12-76 ------ Thelma F Lyons_______________________ (Terminated prior to 5/15) 12-140_____ Harry B Martin ___-________-_--_____ (Terminated prior to 4/22) 12-142_____ John T Martin_________________________ (Terminated prior to 4/22) 12-20______ Phyllis Young-------------------------- (Terminated prior to 4/22) 10 172 DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY Less Cards dated after 5/16/64 Exhibit Name Card Dated 12-60______ Leslie Barge ---------------------------- 5/22/64 12-103_____ Juanita Collett__________________________ 5/22/64 12-65______ David Dedman_________________________ 5/18/64 12-7_______ Geneva Hall ---------------------------- "5" (Tr 130, 135) 12-8_______ Maxine (Delphia M) Hall_____ 5/21/64 12-67______ Ronnie Hopkins________________________ Undated (NLRB stamp 6-22, latter May-Tr 295). 12-41______ Juanita (Wanda) Humphrey------------ 5/27/64 12-69______ Charles S Johnson______________________ 6/4/64 12-73______ Carol (Ada C) King___________________ 5/23/64 12-144_____ Pauline M. McCarty___________________ 5/29/64 12-141_____ Jerry L Martin_________________________ Undated (NLRB stamp 6-22, a week or two before election-Tr 303). 12-45______ Floy M. Mattingly_____________________ 5/29/64 12-153_____ Vivian Louise Rigney________________ 6/3/64 12-79______ James D Shadoan______________________ 6/5/64 12-80______ Juanita Shadoan________________________ 5/25/64 12-52______ Donald Shepherd_______________________ 5/20/64 12-78______ James Shepherd_________________________ 5/25/64 12-159_____ Tina Shifflett---- ______________________ 5/22/64 12-54___-__ Emma Jo Steele_________________________ 5/20/64 12-56______ Kate Stinnett ___________________-______ 5/27/64 12-166_____ Janie Thomas___________________________ 5/22/64 12-174_____ Ellene VanWmkle______________________ 5/22/64 221 22 150 A third tabulation, based on the showing of each card, employment records, and findings on credible testi- mony, discloses that just prior to May 15, the Union held 97 or 98 cards which may be considered as valid: TABULATION OF UNION CARDS AS OF JUNE 3, 10, AND 11, 1964 6/10/64 8/3/64 and 6/11/64 Total on Stipulated May 15, 1964 List (General Counsel's Exhibit 10)_______________ 307 307 Less John C Lewis (Supervisor, Tr 88) James D Truett (Became Supervisor 5/18/64, Tr 89) James Otto (Temporary, Tr 88) Clyde Owens (Temporary, Tr. 89) Marceitta Tolson (Terminated 5/26/64, Tr. 1380) Callie Joe Pickett (Terminated 6/2/64, Tr. 1380) 6 6 301 301 Less Donald Aker (Terminated 6/9/64, Tr. 1380) Stanley Stinnett (Terminated 6/5/64, Tr 1380) 2 301 299 Plus Dolly Wooldridge (Employed 5/25/64, Tr 1382) Ruby Lamhart (Employed 5/25/64, Tr 1382) Raymond Vest (Employed 6/1/64, Tr 1382) 3 3 304 302 Plus Harry Stuempel, Jr. (Employed 6/8/64, Tr 1382) 1 Total Unit-------------------------------------------------------------------------- 304 303 Majority---------------------------------------------------------------------------- 153 152 Total cards in evidence 182 182 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exhibit Less: Cards included in 182 , bearing names not in unit (General Counsel 's Exhibit 10) Name Ronald Brown____________________ Carl Chapman____________________ William C Couch________________ Pasquale P Forcelli_______________ Lotus G. Gillum__________________ Alvernon Jackson--- --------- ----- Thelma F Lyons_________________ Harry B Martin__________________ John T. Martin___________________ Callie To Pickett__________________ Phyllis Young____________________ (Terminated prior to 5/15/64) (Terminated prior to 5/15/64) (Termmated prior to 5/15/64) (Terminated prior to 5/15/64) (Terminated prior to 5/15/64) (Terminated prior to 4/22/64) (Terminated prior tc 5/15/64) (Terminated prior to 4/22/64) (Terminated prior to 4/22/64) (Terminated 6/2/64) (Terminated prior to 4/22/64) 11 171 Less 12-161______ 12-69_______ 12-79_______ Stanley Stinnett__________________ Charles S. Johnson________________ James D Shadoan________________ (Terminated 6/5/64 , Tr 1380) 6/4/64 6/5/64 2 11 171 1 169 Less unproved cards 12-59_______ 12-60___-__ 12-90_______ 12-31_______ 12-65_______ 12-115______ 12-7________ 12-66___:___ 12-68_______ 12-148______ 12-150______ 12-79_______ 12-78_______ 12-160______ 12-168______ 12-177______ Patricia Allen ----- Leslie Barge ---- -------------- ---- Shirley Ann Brunker_____________ Bobby Curtis____ ______ David Dedman-- --- -------------- Richard D Ferguson_____________ Geneva Hall-- ------------ -------- Arnold Hatton____________________ Loney R Hatton_________________ Ruby Mullins____________________ Leona Poe------ ------------ ------ f D Shadoan_____________________ James E Shepherd________________ Jimmy Steele --- ------------------ Bobby D Tolson --_-__________ Lillie Wilson---------------------- (Tr 938) (Tr 938) (Tr 899) (Tr 673-675) (Tr 262, 674, 675, 677-051) (Tr 908-909) (Tr 124, 130-132) (No testimony) (No testimony) (Tr 926, 999, 1007) (Tr 926) (Tr 1418-1422) (No testimony) (Tr 929) (Tr 931-932) (Tr. 937) 16 153 Less Additional group of questioned cards (resting on Ruby Hughes' testimony) 147 James Johnson____________________ Millie Merritt_____________________ Phillip R B Moore______________ Virginia Fay Patrick______________ Nancy Lou Poe___ -______ Alma L Toy___ (Tr 808,832-834,871) (Tr. 809, 871) (Tr 1030) (Tr 809, 855) (Tr 927-1032) (Tr 1032) 6 1 170 16 154 6 148 DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY Less Cards signed by unauthorized persons Exhibit Name 12-40 -- 12-12 12-183 12-172 Della Hendrix - Judy G Mathis Allene Thompson _ Trudy (Dencie) Treadway - - (Signed by sister Ruby Hughes, without authorization-Tr 807, 829 874 1038 1112 1114 1116) (Signed by husband without an thorization-Tr 153 490, 491, 494, 1258-1280 ) (Signed by husband Ntirthout at. thorization-Tr 304 350 693 890 ) (Denied signature was hers-Tr 689 ) Less Return to signer refused 12-110 - - Thomas Davis (Tr 907, 1181-1191) Less Cards deemed invalid because obtained by threats, misrepresentations or both 4 143 1 142 45 97 223 4 144 1 143 45 98 Concluding Findings No discriminatory discharges are here involved The incident involving Foster and Vernon , apparently dredged up by Hughes and Readnower , to bolster their claims, are unfounded accusations of discrimination , not supported by the actual fact, and no inference of a finding of violations of Section 8(a)(1) Nor can the letter, notice, or speeches of Boyer be found to be in violation thereof, I expressly find them to have been permissive under Section 8(c) of the Act Especially is this true in view of the tactics employed by the Union in its organizing campaign The decision of the Board in Aero Corporation , 149 NLRB 1283, points up sharply those practices in the securing of signatures to union authorization cards which are permissible , and the practices of the union representatives herein There being no element of any unfair labor practice proven here , and there having been no union majority at any time, a claim of a `continuing demand" to bargain is empty, and the Bernel Foam doctrine 14 does not apply It is found that the General Counsel has failed to prove the unfair labor practices alleged in the complaint as amended in Case No 9-CA-3222 by the pieponderance of evidence , and the complaint therefore should be dismissed It is further found that, after hearing and upon the preponderance of evidence, the Petitioner Union s objections in Case No 9-RC-5875 should be overruled in their entirety , and the Supplemental Decision , Order, and Direction of October 15, 1964, be set aside insofar as not consistent with this finding Proposed findings have been submitted on behalf of the Respondent Employer and are hereby adopted insofar as they are not mconsistent with the findings of fact set forth above 1 Billy Amu Amis signed a card ( General Counsel 's Exhibit 12-1) after Floyd Readnower told him that employees under the Dixie Easton union contract received a 10-cent-per-hour raise when Lexington employees received 5 cents and Edwards and/or Readnower told him they were going to use the card for an election These representations were false and material and the card is invalid 14 Bernel Foam Products Co , ]no, 146 NLRB 1277 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Linda Amis: Amis signed a card (General Counsel's Exhibit 12-2) after Floyd Readnower told her that employees under the Dixie Easton union contract received a 10-cent-per-hour raise when Lexington employees received 5 cents and Edwards and/or Readnower told her they were going to use the card for an election. These representations were false and material and the card is invalid. 3. Geneva Hall: The card purportedly to be that of Geneva Hall (General Coun- sel's Exhibit 12-7) was not identified as having been signed by her and, therefore, has not been proved. 4. Judy Mathis. The card purportedly to be that of Judy G. Mathis (General Counsel's Exhibit 12-12) was not seen by her and was signed by her husband without her authorization after he told her it was only for an election. The card is invalid. 5. Earl Rust: A card (General Counsel's Exhibit 12-15) was signed for Earl Rust, by his wife, Genevie Rust, after Floyd Readnower told him that he needed so many cards signed so they could have an election, he had so many signed, he needed more to bring the election to Dixie Cup, and no one else would see the cards; and that these representations were inconsistent with the use of the card as an authoriza- tion of the IUE to act as his bargaining representative without an election or contrary to the result of an election. Floyd Readnower further told him that the Dixie Darling- ton plant was being closed and mechanics and operators were being brought from there to take over lobs in Lexington, and that Dixie's Easton employees were being paid 30 to 40 cents per hour more than those in Lexington. These representations were false and material and the card is invalid. 6. Genevie Rust: Rust signed a card (General Counsel's Exhibit 12-16) after Floyd Readnower told her that he needed so many cards signed so they could have an election, he had so many signed, he needed more to bring the election to Dixie Cup, and no one else would see the cards; and that these representations were inconsistent with the use of the card as an authorization of the IUE to act as her bargaining repre- sentative without an election or contrary to the result of an election. Floyd Read- nower further told her that the Dixie Darlington plant was being closed and mechanics and operators were being brought from there to take over the jobs in Lexington, and that Dixie's Easton employees were being paid 30 or 40 cents pei hour more than those in Lexington. These representations were false and material and the card is invalid. 7. Carl Standifer: Standifer signed a card (General Counsel's Exhibit 12-17) after hearing rumors emanating from solicitors of cards on behalf of the Union that employees at the Dixie Easton plant made more than those at the Lexington plant and received 2 weeks' vacation after 3 years whereas Lexington employees received only 1 week, and that the Darlington plant was closing down and sending all of their people to Lexington and Darlington mechanics would push the Lexington ones out of their jobs because of seniority. These rumors were false and material and the card is invalid. 8. Patsy Standifer: Standifer signed a card (General Counsel's Exhibit 12-18) after hearing rumors emanating from solicitors of cards on behalf of the Union that employees at the Dixie Easton plant made more than those at the Lexington plant and received 2 weeks' vacation after 3 years whereas Lexington employees received only 1 week, and that the Darlington plant was closing down and sending all of their people to Lexington and Darlington mechanics would push the Lexington ones out of their jobs because of seniority. These rumors were false and material and the card is invalid. 9. Katheryn Booth: Booth signed a card (General Counsel's Exhibit 12-24) with- out reading it after Ruby Hughes told her that the purpose of the card was to give employees a right to have an election and to vote for or against the Union as they wished. These representations were inconsistent with the use of the card as an author- ization of the IUE to act as her bargaining representative either without an election or contrary to the result of the election; and Ruby Hughes further told her that 200 employees had already signed cards, and persons who had not signed cards before the election would have to pay an initiation fee of $50 to join the Union. Such representations were false and material and the card is invalid. 10. Mildred Carroll: Carroll signed a card (General Counsel's Exhibit 12-25) after Edwards told her that the purpose of the card was only to vote on the Union- an election on the Union. These representations were inconsistent with the use of the card as an authorization of the IUE to act as her bargaining representative either without an election or contrary to the result of an election. The card is invalid. 11. Bobby Curtis: The card purportedly that of Bobby M. Curtis (General Coun- sel's Exhibit 12-31) was not identified as having been signed by him and, therefore, has not been proved. DIXIE CUP, DIVISION OF AMERICAN CAN COMPANY 225 12. Jack V. Hall: Hall signed a card (General Counsel's Exhibit 12-38) after Floyd Readnower told him that under the Dixie Easton union contract employees made a lot more money than the Company was paying in Lexington, and that Easton employees received 2 weeks' vacation•after 3 years and had better hospitalization and other benefits. Hall also heard rumors that Easton employees of the Company were paid 30 to 40 cents per hour more than Lexington employees on equivalent jobs. These representations were false and material and the card is invalid. 13. Della Hendrix: The card purportedly to be that of Della Hendrix (General Counsel's Exhibit 12-40) was forged by her sister, Ruby Hughes, and is invalid. 14. Boyd Ingram: Ingram, age 20, signed a card (General Counsel's Exhibit 12-42) after Charles Land approached him several times and told him that the card would be kept secret regardless of how the election turned out, and that employees could vote any way they wanted to. These representations were inconsistent with the use of the card as an authorization of the IUE to act as his bargaining representative either without an election or contrary to the result of an election. The card is invalid. 15. James Johnson. The testimony of Ruby Hughes was discredited and the card of James Johnson (General Counsel's Exhibit 12-43) which she purported to identify has not been proved. 16. Millie Merritt: The testimony of Ruby Hughes was discredited and the card of Millie Merritt (General Counsel's Exhibit 12-46) which she purported to identify has not been proved. 17. Virginia Fay Patrick: The testimony of Ruby Hughes was discredited and the card of Virginia Fay Patrick (General Counsel's Exhibit 12-47), which she purported to identify, has not been proved. 18. Emma Jo Steele- Emma Jo Steele signed a card (General Counsel's Exhibit 12-54) after she was told by Floyd Readnower and Ruby Hughes that signing the card had nothing to do with how she voted, if she signed the card it would mean no union dues if the Union got in, over 200 had signed, the Union would definitely get in, and no one would ever know who signed the caid except themselves and Edwards. The representation regarding the purpose of the card was inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. These representations were false and material and the card is invalid. 19. Kate Stinnett: Stinnett signed a card (General Counsel's Exhibit 12-56) after Floyd Readnower told her that it employees put their names on them that they would just come in for a vote-it would be secret. The card is invalid as an appointment of the Union as bargaining agent. These representations were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. 20. Patricia Allen: The card purportedly that of Patricia Allen (General Coun- sel's Exhibit 12-59) was not identified as having been signed by her and, therefore, has not been proved. 21. Leslie Bargo: The card purportedly that of Leslie Bargo (General Counsel's Exhibit 12-60) was not identified as having been signed by him and, therefore, has not been proved. 22. Georgena Conn: Conn signed a card (General Counsel's Exhibit 12-61) at night without reading it after Fay Gillum told her its purpose was to get an election and that she would not have to pay an initiation fee or dues if she signed but that if she had not signed a card she would have to pay. The representation regarding the purpose of the card was inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The representations with respect to the initiation fees and dues were false and material. The card is invalid. 23. Hetty B. Caudill: Caudill signed a card (General Counsel's Exhibit 12-62) after Floyd Readnower told her its purpose was "just to get an election" from the Board and Charlie Land told her it was to get a secret election, and that she could vote as she wished, and after she heard plant rumors that she would have to pay an initia- tion fee of $25 if she failed to sign a card prior to the election. The misrepresentation regarding the initiation fee was material and false. The representations regarding the purpose of the card were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid. 24 Janice Chowning: Chowning signed a card (General Counsel's Exhibit 12-63) after "people" told her she would have to pay $25 to $50 initiation fee when the Union got in , after Fay Patrick sent word to her that Floyd Readnower would have her fired if she didn't sign , and after she heard that the Union had signed up 240 people. These representations were false and material and the card is invalid. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 25. Lola F. Chowning: Chowning signed a card (General Counsel's Exhibit 12- 64) after Don Blackwell told her "it was only to get an election ," that the election would be secret and she could vote as she wished, and that if she didn't sign a card she would have to pay a $50 fee to the Union if the Union won and after Joe Brew- ster told her the Union would find some way to make it hard for her if she didn't sign. The representations with respect to the $50 fee were false and material. The repre- sentations with respect to the purpose of the card, its secrecy, and her freedom to vote as she wished were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid not only because of the misrepresentation but also because of the threat. 26. David Dedman: The card purportedly that of David Dedman (General Coun- sel's Exhibit 12-65) was not identified as having been signed by him and, therefore, has not been proved 27. Arnold Hatton: The card purportedly that of Arnold Hatton (General Coun- sel's Exhibit 12-66) was not identified as having been signed by him and, therefore, has not been proved. 28. Ronnie Hopkins: Hopkins, age 20, signed a card (General Counsel's Exhibit 12-61) after Charles Land told him that it was to get a secret election from the Board and that if he waited until after the Union won the election he would have to pay about $50. The representation with respect to the purpose of the card was inconsistent with the use of the card as an authorization of the TUE to act as his repre- sentative either without an election or contrary to the result of an election. The representations with respect to the $50 payment referred to the union initiation fee and were false and material and the card is invalid. 29. Loney R. Hatton- The card purportedly that of Loney R. Hatton (General Counsel's Exhibit 12-68) was not identified as having been signed by him and, there- fore, has not been proved. 30. Charles S. Johnson: Johnson, age 19, signed a card (General Counsel's Exhibit 12-69) after Barbara Howell told him if he signed before the election he would save $25 but that if he didn't sign and waited until after the election, it would cost him $25. Howell was referring to the union initiation fee. The representation was false and material and the card is invalid. 31. Bobbie J. Kenley: Kenley signed a card (General Counsel's Exhibit 12-72) after Ruby Hughes and James Wiley had told him many times that the only purpose of signing the card was to see whether or not a majority of the people in a secret elec- tion wanted the Union and Edwards had told him the Company was going to shut down its Darlington, South Carolina, plant and bring mechanics to Lexington endangering his job, and after Wiley had told him that employees under the Dixie Easton union contract received 40 cents an hour more than employees at Lexington for comparable jobs The representations with respect to the Easton contract and the shutting down of the Darlington plant were false and material. The representation with respect to the purpose of the card was inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or con- trary to the result of an election. The card is invalid. 32. Carol (Ada C.) King: King signed a card (General Counsel's Exhibit 12-73) after Charles Land told her no one would ever know, that they needed so many to get an election, and that it didn't determine how she would vote. These representa- tions were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid as an appointment of the Union as bargaining agent. 33. Einest C. Kidd, Jr.: Kidd signed a card (General Counsel's Exhibit 12-74) after Floyd Readnower and Ruby Hughes told him that the purpose of signing a card was to get an election regardless of how signers voted, that they could vote as they wished, and that there would be a secret ballot. The representation regarding the purpose of the card was inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or contrary to the result of an election. The card is invalid. 34. Robert Lainhart: Robert Lainhart signed a card (General Counsel's Exhibit 12-75) after John Martin told him it would cost him $20 or $25 later on when the Union got in. John Martin was referring to the union initiation fee. This representa- tion is false and material and the card is invalid. 35. Bradford S. Padgett, Jr.: Padgett signed a card (General Counsel's Exhibit 12-77) with the understanding that it was for the purpose of being able to have the election after so many cards were obtained and after he had been told that the wages in the Dixie Easton plant were higher than those the Easton union contract actually provided. The representation with respect to the Easton contract was false and material. The representation with respect to the purpose of the card was incon- DIXIE CUP, DIVISION OP AMERICAN CAN COMPANY 227 sistent with the use of the card as an authorization of the IUE to act as his repre- sentative either without an election or contrary to the result of an election. The card is invalid. 36. James E. Shepherd: The card purportedly that of James E. Shepherd (General Counsel's Exhibit 12-78) was not identified as having been signed by him and, therefore, has not been proved. 37. J. D. Shadoan• The card purportedly that of J. D. Shadoan (General Coun- sel's Exhibit 12-79) was not identified as having been signed by him and, therefore, has not been proved. 38. Helen M. Sosby: Sosby signed a card (General Counsel's Exhibit 12-81) after Charles Land, Ray (Luther) Gillum, and several others had told her the purpose of the card was to have an election only and that signing the card didn't necessarily mean employees wanted the Union and they could vote secretly as they wished. These representations were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. 39. George Shepherd: Shepherd signed a card (General Counsel's Exhibit 12-82) after Charles Land told him that they wanted to get a majority of people to sign cards to have an election. These representations were inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an elec- tion or contrary to the result of an election. The card is invalid. 40. Mary Jane Black: Black signed a card (General Counsel's Exhibit 12-84) against her wishes at the request of her husband, Jackie Black, after Edwards had falsely and improperly promised that he would be rehired by the Company with all backpay and seniority benefits if he could get her to sign a card. The representations of Edwards that he could cause Jackie Black to be rehired by the Company with backpay and seniority benefits if the Union got in were material and false. Moreover, the inducing of Mary Jane Black to sign a card with such a promise was illegal and improper. The card is invalid. 41. Shirley Ann Brunker: The card purportedly that of Shirley Ann Bunker (General Counsel's Exhibit 12-90) was not identified as having been signed by her and, therefore, has not been proved. 42. Molly Casky: Casky signed a card (General Counsel's Exhibit 12-98) without reading it after Floyd Readnower told her it was for the election so that employees might have a choice to vote, yes or no. This representation was inconsistent with the use of the card as an authorization of the IUE to act as her representative either with- out an election or contrary to the result of an election. The card is invalid. 43. Carol Caudill: Caudill signed a card (General Counsel's Exhibit 12-100) without reading it after Doyle Rambo told her he wanted it just for an election and gave no other reason. This representation was inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid 44. Margie L. Chapman: Chapman signed a card (General Counsel's Exhibit 12-102) without reading it after Floyd Readnower told her the card would be for a vote and would be secret and locked up and no one would see them. These repre- sentations were inconsistent with the use of the card as an authorization of the WE to act as her representative either without an election or contrary to the result of an election. This card is invalid. 45. Harold Combs: Combs signed a card (General Counsel's Exhibit 12-104) without reading it when, after repeatedly refusing to sign, Donald Blackwell told him that all his signature was for was to get up a petition so they could have an election on the Union, and that if he did not sign it would end their friendship. This representa- tion was inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or contrary to the result of an election. The card is invalid. 46. Lois Cooper: Cooper signed a card (General Counsel's Exhibit 12-106) without reading it after Floyd Readnower had told her that the only reason they wanted the card signed was to get the vote-so people could vote and then they would be destroyed-and after hearing iumors emanating from the union solicitors that there would be a $25 or $35 initiation fee foi employees not signing before the Union got in. That she also heard rumors that employees' cars would be set on fire if they didn't'sign. The rumors with respect to the initiation fee were false and material. Moreover, the representation that the only reason they wanted the card signed was to get the vote-so that people could vote and then the card would be destroyed-was inconsistent with the use of the card as an authorization of the TUE to act as her representative either without an election or contrary to the result of an election, The card is invalid. 221-374-66-vol 157-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 47. Arthur B. Dailey: Dailey signed a card (General Counsel 's Exhibit 12-109) without reading it after Floyd Readnower said its purpose was only to get an election and he could vote any way he wanted . These representations were inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or contrary to the result of an election. 48. Thomas P . Davis: Davis had previously told Floyd Readnower at the plant that he did not want to sign a card . Davis signed a card (General Counsel 's Exhibit 12-110 ) just to get Readnower out of his apartment after a prolonged harangue by Readnower , who called at Davis' home while Davis was in bed and interested only in sleeping . At this time Readnower - told Davis that the purpose of the card was "just for an election"-"just for a secret ballot"-and "what we voted was up to ourselves , whether it was yes or no." Before signing the card Davis heard rumors at the plant that the union contract with Easton was "a better contract than what we had" and that Easton 's vacations were better . Edwards also told him that the Darlington plant was going to shut down and that its employees would be coming to Lexington to replace Lexington employees if they did not protect themselves by joining the Union. Edwards said he had inside information on this. Later Davis attended a union meeting at the Holiday Inn. After the meeting he told Floyd Readnower to tear up his card . Readnower replied that this would not be necessary-that the way the employees voted would determine whether the Union got in or not. Readnower said that it would all be secret-that if the Union lost the election the card would be torn up and that no one would ever see it . After asking Readnower to tear up his card, Davis ceased attending union meetings . This card is invalid for several reasons. The representations with respect to the use of the card-"just for an election," its secrecy in the voting , and that it would be torn up if the Union lost the election- are all inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election and contrary to the result of an election. The representations with respect to the Darlington plant and the transfer of its employees to Lexington and the rumors with respect to the Easton contract were material and false. Moreover, any authorization which might have been given by the card was revocable and Davis revoked it by his direction to Readnower to tear up the card. The card is not valid. 49. Charles F. Edgerton : Edgerton signed a card ( General Counsel 's Exhibit 12-112 ) after Donald Young told him the purpose of the card was something about getting a number of cards signed so they could have an election. The card is invalid as an appointment of the Union as bargaining agent. 50. Sue E. Feck : Feck signed a card ( General Counsel 's Exhibit 12-114 ) without reading it after Charles Land approached her 30 or 40 times and she received 2 calls at home when she and her husband were sleeping. Land mentioned the initiation fee argument to her and she also heard the plant rumors on the subject . Land's solicita- tion speech on initiation fees has been shown to be false and as the plant rumors on this subject were also false the card is invalid. The false statements and rumors were material. 51. Richard D. Ferguson : The card purportedly that of Richard D . Ferguson (General Counsel 's Exhibit 12-115 ) was not identified as having been signed by him and, therefore , has not been proved. 52. Stanley Frederick : Readnower and Hughes came to Stanley Frederick's home at a time when his wife was preparing dinner and he was rushed because he had only a limited time to get to work. Frederick signed a card ( General Counsel 's Exhibit 12-116 ) without reading it after Floyd Readnower told him that under the Easton contract the pay for the job comparable to his was $2 . 10 per hour against $ 1.95 he was receiving in Lexington , that if he didn 't sign the card he would have to pay the initia- tion fee of $25 or $50; that the only purpose of the card was to get an election; and that the cards would be kept secret regardless of the outcome . The representations with respect to the Easton contract and the initiation fee are false and material. The representations with respect to the purpose of the card and its secrecy are inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or contrary to the result of an election. The card is there- fore invalid. 53. Mary Jo Gibson : Gibson signed a card (General Counsel 's Exhibit 12-117) without reading it after Floyd Readnower told her it was for an election only, that it made no difference how she voted , and that under the Dixie Easton union contract employees received 2 weeks' vacation after 3 years . The representation with respect to the Easton contract was false and material and the card is invalid . The representa- tions that the card was to be used for an election only and that she could vote as she pleased are inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid. DIXIE CUP , DIVISION OF- AMERICAN CAN COMPANY 229 54. Palmer Howell: Howell signed a card (General Counsel's Exhibit 12-126) without reading it after Phillip Wooldridge asked him if he would like to sign a card so they coud get an election and get it over with. The card is invalid as an appointment of the Union as bargaining agent. 55. Jack S. Jewell: Jewell signed a card (General Counsel's Exhibit 12-128) without reading it after Gene Hall told him that a majority of employees had signed and that its purpose was to obtain an election. Previously Hall had told him that if the Union came in, the initiation fee would be $55 for those who did not sign cards before the election . Jewell had also heard the rumors emanating from the statements of the union solicitors that the cards would be secret. The representations with respect to the purpose of the card and its secrecy are inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an elec- tion or contrary to the result of an election. The representation with respect to the initiation fee is material and false. The card is invalid. 56. Charlene Kimbleton: Kimbleton signed a card without reading it (General Counsel's Exhibit 12-132) after Floyd Readnower told her that if she signed she would not have to pay a $25 initiation fee and that the Union was just as good as in because a majority had already signed cards. He told her that if she did not sign she would have to pay the $25 initiation fee. He also told her before she signed the card that its purpose was "just for an election" and would be kept "strictly secret." He said that no one would know who were signing the cards and that a card signer could still vote as he pleased. The representations with respect to the initiation fee and a majority having already signed are false and material. The representations that the purpose of the card was just for an election, that it would be kept secret, and that she could vote as she pleased are inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. 57. Mildred Lockard: Lockard signed a card (General Counsel's Exchange 12- 135) because she heard rumors emanating from the union solicitors that if employees didn't sign a card they would be charged a $25 initiation fee if the Union came in. She also heard rumors before signing that cars of nonsigners would be torn up in the parking lot, that if she didn't sign a card and back the Union, they were going to catch up with her and give her a whipping, and that the union workers were circulat- ing disgraceful rumors about people who failed to sign cards. The rumor with respect to the initiation fee was false and material and the card is invalid. The card was also invalid because of the coercive effect of the other rumors referred to. 58. Wanda Lockwood: Lockwood signed a card (General Counsel's Exhibit 12- 136 after Floyd Readnower told her that 51 percent of the employees had already signed cards, that she was a bad operator, and that if it were not for the union situation she probably would be fired. She was new and did not know anything about factories and unions and was afraid not to sign. However, she was angry and immediately after signing a card she told Plant Manager Boyer that she had no intention of voting for the Union but had signed thinking they would leave her alone. She also asked him why he hadn't warned the employees about this sort of thing and he replied that he had no right to mention the Union unless someone came to him with a question. The representation that 51 percent of the employees had already signed was material and false and the card is invalid. It is also invalid as an appointment of the Union as bargaining agent, as she obviously signed it only because she was afraid not to do so. 59. Clarence Martin, Jr.: Land approached Martin in the factory and requested him to sign a card. Land told Martin that there would be a $25 initiation fee if he didn't sign a card. Martin did not sign at this time. Later Readnower and Edwards met him at the Amis home. Readnower had a copy of the Easton union contract with him. He told Martin that the Easton contract provided for a vacation of 2 weeks after 3 years' service. He also proposed to show by quotations from the Easton con- tract that the Easton rate of pay for a job comparable to that of Martin was 40 to 50 cents per hour more. Edwards told him that if he signed the card it would be secret and that no one except those present at the time of its signature would know about it. Martin signed the card without reading it. The representations with respect to the $25 initiation fee and with respect to the Easton contract were material and false. Edwards' statements with respect to the secrecy of the card are inconsistent with the use of the card as an authorization of the IUE to act as his representative either with- out an election or contrary to the result of an election. 60. Phillip R. Moore: Upon being recalled as a witness , Hughes proposed to identify the card of Moore (General Counsel's Exhibit 12-147) after it became apparent that it would not otherwise be proved, that the testimony of Ruby Hughes was discredited , and that the card has not been proved. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 61. Ruby Mullins: The card purportedly that of Ruby Mullins (General Counsel's Exhibit 12-148) was not identified as having been signed by her and, therefore, has not been proved. 62. Lillian Plunkett: Plunkett signed a card (General Counsel's Exhibit 12-149) after Floyd Readnower told her its purpose was to get an election and the card would be kept secret. These representations were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid. 63. Leona Poe- The card purportedly that of Leona Poe (General Counsel's Exhibit 12-150) was not identified as having been signed by her and, therefore, has not been proved. 64. Nancy Lou Poe: This card has not been proved. After it became apparent at the hearing that this card might not be proved, Ruby Hughes was recalled and purported to identify it. Her testimony has been discredited. 65. Barry W. Reams: Reams, age 19, signed a card (General Counsel's Exhibit 12-152) without reading it after Floyd Readnower told him that the purpose of the card was only to get an election. Readnower further said that they had a number of cards signed and needed more in order to get a petition. He also said that the purpose was just to get an election and that employees could vote any way they wished. These representations were inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or contrary to -the result of an election. 66. Tommy Shewmaker: Shewmaker printed his name on a card (General Coun- sel's Exhibit 12-158), which was subsequently signed in script by some unknown person. He signed it after hearing rumors emanating from union solicitors that if people didn't sign a card there would be a $25 inititaion fee, and that the purpose was to obtain an election so that employees could decide whether they wanted the Union or not. The rumor with respect to the initiation fee was false and material. The rumors with respect to the purpose of signing the card and its secrecy were inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or contrary to the result of an election. 67. Tina Shifflett: Shifilett had been asked to sign dozens of times by Readnower and Hughes befcre she finally signed a card on May 22, 1964, that in inducing her to sign at that time Readnower told her that some 90 percent of the employees had already signed and that she might as well go along "for the ride." He told her that the Union was already in, that she might as well sign a card, and that it "would be better" for her if she did. Before signing the card she had talked to Edwards who told her that the Company was paying $2.37 per hour for "reinspectors" as against the Lexing- ton rate on this job of $1.95. Tina Shiflett was a reinspector. Tina Shifflett signed the card without reading it. She had been told that the card was for an election, and that when she voted she could vote as she wished and would not have to vote for the Union if she didn't want it. She signed the card without reading it because "she wanted the election over with." The representations with respect to the percentage of employees who had already signed and with respect to the rates of pay for rein- spectors at the other plants were material and false The rumors and representations made to her with respect to the purpose of signing the card and her freedom to vote as she pleased were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid. 68. Jimmy Steele. The card purportedly that of Jimmy Steele (General Counsel's Exhibit 12-160) was not identified as having been signed by him and was not proved. 69. Donald T. Sutherland: Sutherland signed a card (General Counsel's Exhibit 12-162) after Donald Young told him it was to get a secret election and the Union had to have so many cards to get this election. This representation was inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an election or contrary to the result of an election. The card is invalid. 70. Loretta Tharp: Tharp signed a card (General Counsel's Exhibit 12-165) after Floyd Readnower told her its purpose was to get an election; cards would be kept secret; no one would know about them; Lexington employees received a 5-6ent increase when other Dixie plants received 10 cents: and other plants received 2 weeks' vacation after 3 years. The representations with respect to the pay increases and vacations to the other Dixie plants were'false and material and the card is invalid. The representations with respect to the purpose of the card were inconsistent with the use of the card as an authorization of the WE to act as her representative either with- out an election or contrary to the result of an election. The card is invalid. 71. James Thompson. Thompson, age 19, glanced over" a card and signed it (General Counsel's Exhibit 12-167) after Floyd Readnower told him that he had enough cards, or needed a few more to get an election. Prior to signing he had heard DIXIE CUP , DIVISION OF AMERICAN CAN COMPANY 231 a rumor emanating from solicitors of cards for the Union that a $25 or $50 initiation fee would be charged employees who did not sign a card before the election. The rumor with respect to the initiation fee was false and material . Readnower's repre- sentation with respect to the purpose of the card was inconsistent with the use of the card as an authorization of the IUE to act as his representative either without an elec- tion or contrary to the result of an election. The card is invalid. 72. Bobby D . Tolson: The card purportedly that of Bobby D. Tolson (General Counsel 's Exhibit 12-168 ) was -not identified as having been signed by him and, therefore , has not been proved. 73. Alma L. Toy : The testimony of Ruby Hughes was discredited and the card of Alma L . Toy (General Counsel 's Exhibit 12-170 ), which she purported to identify, has not been proved. 74. Trudy Treadway - The card purportedly that of Trudy Treadway ( General Counsel 's Exhibit 12-172 ) was not signed by her and has not been proved. 75. Jean Traylor : Traylor signed a card (General Counsel 's' Exhibit 12-173) without reading it after Phyllis Gill told her nobody would ever know she signed it, it would be for a free election , a $50 initiation fee would be charged those who didn't sign before the Union came in , and they wouldn 't have ' a job if they didn't sign. The representation with respect to the initiation fee was false and material . The repre- sentations with respect to the use of the card to obtain a free election and that the card would be kept secret were inconsistent with the use of the, card as an authorization of the TUE to act as her representative either without an election or contrary to the result of an election . The card is invalid. 76. Ellene Van Winkle : VanWinkle signed a card ( General Counsel 's Exhibit 12-174 ) without reading it after Floyd Readnower told her that the purpose of the card was to obtain an election , no one but herself, Edwards , and Readnower would ever see the card , the Dixie Easton contract provided for 2 weeks ' vacation after 3 years of employment , and he had more than 200 signed cards. The representations with respect to the Easton contract and the - number of cards already signed were material and false. The representations as to the purpose of the card and its secrecy were inconsistent with the use of the card as an authorization of the IUE to act as her representative either without an election or contrary to the result of an election. The card is invalid. 77. Lillie Wilson : The card purportedly that of Lillie Wilson (General Counsel's Exhibit 12-177 ) was not identified as having been signed by her and , therefore, has not been proved. 78 Phillip Wooldridge : Wooldridge signed a card ( General Counsel 's Exhibit 12-178 ) after John Martin told him if the Union was in (would clearly win the elec- tion ) and if he didn 't have a card the initiation fee possibly could be doubled- possibly $25 or $50 . This representation was false and material and the card is invalid. 79. Allene Thompson - The card purportedly that of Allene Thompson (General Counsel's Exhibit 12-183 ) was not signed by her. Her husband signed her name to it without her authorization at the request of Floyd Readnower . Readnower told her husband that he would check with Allene and would destroy the card if she did not approve. Readnower turned the card into the Union without checking with Allene to see if she approved . He testified it was a "human error." This card is invalid. 80. Randall Walker: Walker signed a card ( General Counsel 's Exhibit 12-83) with the understanding that it was to obtain an election after hearing rumors to that effect which emanated from the union solicitors . - The card is invalid as an appoint- ment of the Union as bargaining agent. The testimony of Ruby Hughes was totally discredited and the cards purportedly of the following persons whom she identified as having signed in her presence have not been proved - Sally M . Caswell ( General Counsel 's Exhibit 12-26), Meral K. Clifton (General Counsel 's Exhibit 12-27 ), Bertha Irene Couch (General Counsel 's Exhibit 12-28 ), William C. Couch ( General Counsel 's Exhibit 12-29), Eudora Creech (General Counsel's Exhibit 12-30 ), Barbara Frederick ( General Counsel 's Exhibit 12-34 ), James J. Frederick ( General Counsel 's Exhibit 12-35), Evelyn Funk (General Counsel 's Exhibit 12-36 ), Wendell R. Greene ( General Counsel 's Exhibit 12-37 ), Elizabeth Hammons (General Counsel 's Exhibit 12-39 ), Juanita Humphrey (General Counsel 's Exhibit 12-41 ), David Leath (General Counsel's Exhibit 12-44), Floy Mattingly (General Counsel's Exhibit 12-45 ), Callie Jo Pickett ( General Coun- sel's Exhibit 12-48 ), Michael Porter (General Counsel's Exhibit 12-49 ), Loretta Rankin (General Counsel's Exhibit 12-51 ), Donald Shepherd (General Counsel's Exhibit 12-52) T. Shewmaker (General Counsel's Exhibit 12-53 ), and Larry L. Watts (General Counsel 's Exhibit 12-58). 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, and on the whole record, I make the following: CONCLUSIONS OF LAW 1. Dixie Cup , Division of American Can Company, Respondent Employer, is an employer as defined in Section 2 (2) of the Act and is engaged in commerce and in operations affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers , AFL-CIO, is a labor organization as defined in Section 2(5) of the Act. 3. The Respondent Employer has not engaged in and is not engaging in unfair labor practices as alleged in the complaint as amended in Case No. 9-CA-3222. 4. The Respondent Employer did not engage in conduct affecting the result of the election in Case No. 9-RC-5875. 5. The complaint as amended in Case No . 9-CA-3222 should be dismissed. 6. The objections to the result of the election in Case No. 9-RC-5875 should be overruled in their entirety. RECOMMENDED ORDER It is recommended that the Board enter an order dismissing the complaint as amended in Case No . 9-CA-3222 and overruling the Union's objections to the result of the election in Case No . 9-RC-5875. Stainless Steel Products, Incorporated and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO Stainless Steel Products, Incorporated and Al Martin Stainless Steel Products, Incorporated and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO and Stainless Steel Employees. Association Stainless Steel Products, Incorporated and International Union, United Automobile, Aerospace and Agricultural Implement. Workers of America , AFL-CIO. Cases Nos. 31-CA-28-1 (for- merly 21-CA-6255-1), 31-CA-28-2 (formerly 21-CA-6255-93), 31- CA-31 (formerly 21-CA-6340), and 31-CA-34 (formerly 21-CA- 6377). March 1, 1966 DECISION AND ORDER On October 12, 1965, Trial Examiner David Karasick issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dis- missal of those allegations. Thereafter, the Respondent, the Charg- ing Party, and the Stainless Steel Employees Association, herein 157 NLRB No. 14. Copy with citationCopy as parenthetical citation