Boot-Ster Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1964

149 N.L.R.B. 933 (N.L.R.B. 1964)

BOOT-STER MANUFACTURING COMPANY, INC. 933
union card is required to vote for the Union. We believe you have confidence in
us when it really matters-down to the final windup . The question is whether you
would rather have outsiders represent you or whether you would rather have us as
your leaders. We feel that a vote for the Union is a vote against us.
Now let's not gamble with your jobs and your security. A big vote against the
Union will end all the trouble and unrest and after the election we can go on just
like we have been . We have given you the facts. We know that you will show your
confidence in us so that we can continue to work here for your interests and that of
the Company. You have as good a deal now as you can get. Be right and vote right.
Check NO on the right side of the ballot.
Thank you.
(S) Joseph Sidran,
JOSEPH SIDRAN.
Boot -Ster Manufacturing Company, Inc. and United Rubber,
Cork , Linoleum and Plastic Workers Union , AFL-CIO, affili-
ated with United Rubber, Cork , Linoleum & Plastic Workers
of America , AFL-CIO. Case No. 26-CA-1679. November 20,
1964
DECISION AND ORDER
On July 15, 1964, Trial Examiner Morton D. Friedman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices in violation of the Act and recommending that the Respondent
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondent had not engaged in certain other
unfair labor practices as alleged in the complaint and he recom-
mended that the complaint be dismissed as to them. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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 entire
record in this case, including the Trial Examiner's Decision, the
exceptions, and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modification?
1 Member Leedom does not reach, and therefore does not pass on, the question as to
whether the Respondent ' s speeches , and its remarks incident thereto , made during the
period between October 7 and 17 , 19G3, standing alone, were violative of Section '8(a) (1)
of the Act , as he believes that , in the light of the Respondent 's contemporaneous coercive
statements to employees , involving similar remarks , which the Board is finding herein vio-
lated Section 8(a) (1), the Respondent ' s speeches take on a coercive connotation and hence
are unlawful . See Member Leedom 's separate views as expressed in Brownwood Mann-
factarsng Company, 149 NLRB 921.
149 NLRB No. 91.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner's finding that the Respondent
refused to recognize and bargain with the Union in' violation of Sec-
tion 8(a) (5) of the Act. However, in holding that the Respondent
violated Section 8(a) (5) of the Act, we find, specifically, that the
Respondent's refusal to bargain was motivated by a desire to gain
time, within which to undermine the Union's majority status.
As more fully set forth in the Trial Examiner's Decision, the Union
began its organizational campaign in September 1963. During the
period from early October 1963 to late November, the Respondent,
through its supervisors and officers, engaged in a course of conduct
which included numerous and varied violations of Section 8 (a) (1)
of the Act. On October 10, 1963, the Union, which at that time rep-
resented a majority of employees in the appropriate unit, wrote a
letter to the Respondent and requested that the Respondent recognize
it as bargaining representative of these employees. In this letter, the
Union stated that it was willing to submit its authorization cards to
an impartial third party in order to prove its majority status. On
October 16, the Respondent rejected the Union's request for recog-
nition, stating that it did not believe the claims set forth in the
Union's letter. The Union thereupon filed a representation petition
with the Board. On October 30, a stipulation for certification upon
consent election was signed by the parties, setting the election for
November 22. ' However, on November 8 the Union filed the instant
unfair labor practice charges, and, thereafter, on December 13 the
Union requested withdrawal of its petition, which was approved by
the Regional Director on December 16. -
It is well established that while an employer may in good faith
insist upon a Board election as proof of a union's majority, it unlaw-
fully refuses to bargain if its insistence on such an' election is moti-
vated, not by any bona fide doubt as to the 'union's majority, but
rather by a rejection of the collective-bargaining principle or by a
desire to gain time within which to undermine the union.z ' In our
view, it is clear from the Respondent's entire coercive course of con-
duct herein, which occurred both before and after it refused to
recognize the Union,3 that its refusal to bargain with the Union on
October 10 was motivated, not by any good-faith doubt as to the
Union's majority, but rather both by a desire to gain time to dissi-
pate the Union's majority status and bargaining position and by a
rejection of the collective-bargaining principle.
2 Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F. 2d 732 ( C.A. 1), cert. denied 341,
U S. 914. -
8 As described more fully in the Trial Examiner 's Decision , the Respondent engaged in
19 Instances of conduct violative of Section 8(a) (1) of the Act, including threats of re-
prisal for engaging in union activity , interrogations , promises of benefit for refraining
from engaging in union activity, and the creation of the impression of surveillance, and at
least 9 of these instances occurred after the Respondent 's refusal to bargain with the
Union.
BOOT-STER MANUFACTURING COMPANY, INC. 935
ORDER,
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent,
Boot-Ster Manufacturing Company , Inc., its officers , agents, succes-
sors, and assigns, shall take the action set forth in the Trial Exam-
iner 's Recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 8, 1963, by United Rubber , Cork , Linoleum and
Plastic Workers Union , AFL-CIO, affiliated with United Rubber, Cork , Linoleum
& Plastic Workers of America, AFL-CIO. herein referred to as the Union, the
Regional Director for Region 26 of the National Labor Relations Board , herein
called the Board , issued a complaint on December 20, 1963, on behalf of the General
Counsel of the Board against Boot-Ster Manufacturing Company, Inc., hereinafter
referred to as the Respondent or the Company ;,alleging -violationsof,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 In its duly filed .answer to the aforesaid complaint,
Respondent , while admitting certain of the allegations thereof , denied the commission
of any unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner Morton D . Friedman
in Clarksville , Tennessee , on January 21 and 22, 1964. All parties were represented
and afforded full opportunity to be heard , to introduce relevant evidence , to present
oral argument , and to file briefs . Oral argument was waived . Briefs were filed by
the Respondent and counsel for the General Counsel.
Upon consideration of the entire record in this case , including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testifying
before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF, THE,RESPONDENT
At all times material herein the Respondent has been and is a Tennessee corporation
having , its principal office and place of business located at Clarksville , -Tennessee,
where it is engaged in the manufacture of footwear . During the 12 months imme-
diately preceding the issuance of the complaint herein, a representative period, in the
course and conduct of its business operations the Respondent purchased and received
at its Clarksville, Tennessee , location materials and supplies of a value in excess of
$50,000 directly from points outside the State of Tennessee . During the same period
of time, Respondent sold and shipped finished products of a value in excess of $50,000
directly to points outside the State of Tennessee.
It is admitted , and I find and conclude , that the Respondent is engaged in com-
merce within the meaning of the Act and that it will effectuate the policies of the Act
to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find, that the Union is a labor organization within the meaning
of -Section 2(5) of the,Act.
III. THE ISSUES
A. Whether the Respondent through its officers and supervisors threatened and
interrogated its employees , made promises of benefits, and created the impression of
surveillance , constituting interference , coercion , and restraint within the meaning of
Section 8 (a) (1) of the Act.
B. Whether the Union 's apparent majority, at the time it made its demand for
recognition and request for bargaining , was, in fact, uncoerced or whether the majority
was obtained through misrepresentation. .
C. Whether the Respondent 's refusal to recognize and bargain with the Union was
based upon a good-faith doubt as to the Union 's majority status or whether the doubt,
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was asserted for the purpose of gaining time in which to destroy the Union 's majority
or rejecting collective -bargaining principles by engaging in the conduct with which
issue (A) above, is concerned.
IV. THE UNFAIR LABOR PRACTICES
A. Background
The Union began its organizational campaign sometime in September 1963. The
campaign was directed by James Temple, a field director for the Union. Temple
held meetings with the employees and had them sign authorization cards. The
employees who attended the meeting were, in turn, given authorization cards to
distribute among the employees in the plant. These cards were thereafter signed
and returned to Temple at subsequent meetings. This activity resulted in the obtain-
ing of approximately 130 signed authorization cards from employees in the Respond-
ent's employ.
By letter dated October 10, 1963, the Union requested that the Respondent recog-
nize it as the exclusive representative of the Respondent's employees in a production
and maintenance unit and requested that the Respondent bargain with it In this
letter the Union stated that it was willing to submit the authorization cards to an
impartial third party in order to prove the Union's majority status. By letter dated
October 16, 1963, the Respondent's counsel informed the Union that the Respondent
did not believe that the claims set forth in the Union's letter of October 10 were
accurate and therefore the Respondent denied the Union's request for recognition.
Thereafter, on October 16, 1963, the Union filed a petition with the Board which
resulted in the scheduling of a hearing on October 30, 1963. However, instead of
a hearing, a stipulation for certification upon consent election was signed by the
parties on October 30 and an election in a production and maintenance unit was
scheduled for November 27, 1963. However, the proposed election never was held
because on November 8, 1963, the Union filed the charges herein. Thereafter, on
December 13, 1963, the Union requested withdrawal of its petition which request
was approved on December 16, 1963.
During the period from about the first part of October until sometime late in
November 1963, the Respondent, through its supervisors and officers, talked to the
employees individually in order to attempt to persuade the employees to vote against
union representation. Also, in the first part of October 1963 speeches were made to
groups of approximately 25 to 30 employees by the Respondent's president, J. Z.
Miller. These speeches and conversations are the subject of the charges and the
complaint which allege that the Respondent engaged in acts of interference, coercion,
and restraint.
B. Interference, coercion, and restraint
1. Threats
a. Events
(1) J. Z. Miller
As noted above, President J. Z. Miller made a number of speeches to the Respond-
ent's employees during the month of October, beginning about October 7 and ending
the series on or about October 16 or 17. He spoke to the employees in groups of
20 to 25.
The basic speech was written in advance by Miller and counsel for the Respondent.
However, Miller testified that he made some variations from the speech at various
times during the meetings at which the speeches were given. Th main theme of the
written speech 1 was that the Union could at best make demands for money which the
Respondent might or might not be able to meet; that if the Respondent could not
meet these demands, the Union could demand that the employees go out on strike;
that if the employees went out on strike the Respondent would have the right to
replace them. Then the speech went on to remind the employees that if they were
out for 2 or 3 months or longer there would be no one to pay for their living expenses
and it further stated that the Union certainly would not. It also stated that the
promises that the Union made to the employees could not be fulfilled inasmuch as
if they were fulfilled the Respondent could not operate in Clarksville. Then the
speech further pointed out that no one had to join the Union under any circumstances
1 This speech was quite lengthy and its reproduction here would unduly lengthen this
Decision.
BOOT-STER MANUFACTURING COMPANY, INC. 937
because Tennessee has a right-to-work law. Nowhere in the speech did the Respond-
ent in any way allude to any possible benefits that the employees might be able to
obtain from selecting the Union as their bargaining representative.
According to J. Z. Miller, whom I credit, he tailored his speeches to the groups to
whom he spoke but in each case he adhered generally to the content of this prepared
speech. He admitted, however, that he did tell some of the groups that he would not
sign an agreement with the Union that would be detrimental either to the Respondent
or the employees. He also told at least one of these groups, in response to questioning,
that if there was a strike he might have to discontinue the manufacture of makeup
work 2 and that such a situation could result in cutting production in half, which, in
turn would mean that approximately half of the employees would be out of work. He
emphasized to the employees that this did not mean that the Respondent would volun-
tarily shut down any portion of its operations but that a shutdown could occur only
in the event of a strike called by the Union because the Respondent could not meet
demands made by the Union. He also stated that the Respondent would keep going
as long as it possibly could. He emphasized that the only contract he would not sign
would be one with which the Respondent could not live. Miller admitted that he did
not tell the employees the difference between economic and unfair labor practice
strikes but he further testified that he did not know the difference between the two
types of strikes himself.3
Employees Bertha Wyatt and Levada Milliken also testified that during the speeches,
J. Z. Miller told them that no union was going to come in and tell him how much
profit he was going to make and that Morris Dowdy, the Respondent's vice president,
had toured the country and had seen some of the buildings in areas where the Union
had come in. In those buildings the windows were broken out, the doors were broken
down and were swinging, and the places looked like ghost towns. This foregoing
testimony Miller did not directly contravene. I credit it and find that Miller made
these statements.
(2) Morris Dowdy
In the first part of October, Morris Dowdy called Buena Jinett to the basement and
asked her what her complaint was. Jinett told Dowdy that the piece prices and wages
were not right and Dowdy told Jinett that the Union would not solve all of the prob-
lems. Then he said to her, "Buena, you realize that I could fire you, don't you?" He
explained that he could go down the line and find some of her bad work and that
would be enough to sustain a discharge. Then he asked her whether she had been to
the union meeting the night before.4
(3) James Bowles
Around the middle of October 1963, James Bowles, a foreman and an admitted
supervisor, had a conversation with employee Marion Darnell. Bowles asked Darnell
why the latter wanted a union and when Darnell told Bowles that it was for better job
2 Makeup work is work which the Respondent took on in shoe manufacturing which is
virtually profitless but which' Miller accepts in order to keep the factory'running full time.
This is to the benefit of both the Company and the employees. 'This work was originally
taken on several years before the events herein for the purpose of relieving a situation
which had existed for a number of years whereby many of the employees were getting
only 3 days' work a' week
3 Employees Bertha Wyatt, Margaret Phillips, Buena' Jinett, Levada Milliken, and
Sammie Wortham testified that Miller, in his speeches, stated that if the Union came in
and the employees went out on strike he would replace them and they would get' only
3 days' work a week. Phillips went so far as'to testify that Miller said that the mere selec-
tion of the Union by the employees would bring about such a closedown From my observa-
tion of the witnesses and because the employees' version was not completely inconsistent
'with Miller's, I conclude and find that Miller's version is the more accurate and-that the
employees' version was the result of not understanding the portent of Miller's speech.
Furthermore, Alfred Mullins, Lloyd Webb, Buelah Jones, Judith Chestdr, Betty Raines,
rank-and-file employees, corroborated Miller's version of his speeches. 'I find that this
strengthens the version and makes Miller's version more acceptable. This'is especially so
because the corroboration by these latter employees of each others' testimony contains
enough variation to lend an'air of true reliability rather than of rehearsed fabrication
4 From the credited testimony of Buena Jinett. I do not credit Dowdy's' version of this
conversation and his denial that he told Jinett that h'' could discharge her. 'I found
Dowdy to be a rather evasive witness whereas Jinett, even on' cross-examination, was very
firm in her assertion as to what Dowdy told her.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security and working conditions and other benefits, Bowles told Darnell that the
Respondent could not afford a union, that it did not have the money for the benefits
she expected, and told her that they could not "get blood out of a turnip." Bowles
then told Darnell that if the Union came in and the union members went on strike
there would be no more makeup orders, production would be cut in half, and half of
the employees would be out of work 5
(4) James Miller
James Miller is a supervisor with the title of foreman and, so far as the record
shows, is not related to J. Z. Miller, the Respondent's president. During October 1963,
James Miller had a conversation with employee Alberta Shelby in which Miller stated
that he knew that Shelby had been going to union meetings and that she had therefore
heard the union side of the question. Miller stated that he thought now it would be
time for Shelby to hear the Company's side. Miller told Shelby that a number of
employees had already taken off their union buttons and thrown them away. He then
asked Shelby what they were going to do when they were laid off; who was going to
pay the bills?
He then asked Shelby whether the latter thought she or her husband would let
anybody come in and tell them how to run their farm. Miller further asked Shelby
whether she had been treated unfairly.6
(5) Charles Gafford
On or about October 4, 1963, Charles Gafford spoke to Bertha Wyatt, an employee
in the department of which Gafford is the supervising foreman. Gafford asked Wyatt
what was wrong; what the employees were trying to do. He then asked Wyatt if she
was not afraid of losing her job and Wyatt told Gafford that she was not afraid but
that she did not know what he meant. Gafford went on to say that if -he was doing
the things that Wyatt was doing he would be afraid that he would lose his job and he
said, "I owe for a big home, and I haven't got out and looked for a job, but I most
certainly would be afraid that I would lose my job if I was going to do what you are
trying to do." Then Gafford asked Wyatt what was her idea anyway and Wyatt told
him that she had not been treated fairly in regard to her work. Gafford then asked
Wyatt whether the latter thought the Union could give her better work. He further
asked Wyatt if the Union should come in would she be assured that she.would get all
good leather to work on and would she get all the good jobs. Gafford then told Wyatt
that if she thought this was so she would be badly fooled.?
(6) Douglas Milliken
On or about October 11, 1963, Douglas Milliken, who was related to both Bertha
Wyatt and Levada Milliken, had a conversation with both of these employees.
5 From the credited testimony of Marion Darnell. I find that Darnell was a more credible
witness than James Bowles who merely denied that he had a conversation with Darnell
in which he told her that the Respondent would cut production in half. Bowles ' attitude
toward the Union was exemplified in his conversations with employees Josephine Parker
and Ocie Bishop, both of whom testified without being controverted that in separate con-
versations with Bowles, Bowles told them that if the Union came in one door he would go
out the other. Bowles also, according to Parker whom I credit, stated that J Z. Miller
would never sign a contract with the Union. I find that the testimony of Darnell as to
what Bowles told her is made more credible by the remarks that Bowles made to other em-
ployees. Accordingly, as noted above, I credit Darnell over Bowles.
6 From the credited testimony of Alberta Shelby. Shelby testified in a straightforward
and positive manner. On cross-examination, James Miller, however, admitted that he
.talked individually to most of the employees working under him in the pattern office, the
same place in which the conversation with Shelby occurred He admitted that he told
the employees about the standpoint of the Company and about the profits of the Company
but he denied that he threatened any one of them or promised any one of them anything
of value. Upon my observation of both of these witnesses and from the manner in which
they testified I credit Shelby and do not credit James Miller.
7 From the credited testimony of Bertha Wyatt. I have heretofore credited Wyatt and
I credit her in this respect also. It should be noted in connection herewith that Gafford
admitted speaking to Wyatt about the Union and that he asked her how she felt about the
Union and why she wanted a union. Accordingly, he corroborated to some extent what
Wyatt had testified to. Accordingly, I do not credit his denial that he asked her whether
she was not afraid she would lose her job if she joined the Union.
BOOT-STER MANUFACTURING COMPANY, INC. 939
Douglas Milliken is a foreman and an admitted supervisor. Milliken stated that he
wanted to talk to both of them saying that he could not sleep the night before. When
Bertha Wyatt asked him what the trouble was Milliken said that he could not sleep
because he knew she had a union button on. Wyatt reminded Milliken that she had
told him never to say anything to her about the union button because she was going
to keep it on. Then Milliken told the women the reason he was unable to sleep any
was because J. Z. Miller was not intending to permit the Union to come into the
factory and that they would lose their jobs if the Union came in. Milliken wanted to
know what his two relatives were going to do. He further stated that they were mak-
ing a big mistake being for the Union and that they should pull off their buttons 8
b. Conclusions as to threats
The speeches of J. Z. Miller contain much that can readily be regarded as protected
free speech. The issue with regard to those speeches and the discussions that occurred
between Miller and the employees during the speech meetings is whether when all the
remarks are consideied together, rather than portion by portion in isolation, the
speeches go beyond the permissible boundaries of free speech into the area of coercion
and restraint.
The Respondent contends that, in essence, what J. Z. Miller related to the employees
was simply that the Respondent did not want the Union, that it could work better with
the employees alone, and that the latter would benefit by such an arrangement as
they had in the past; that there was a possibility that if the Union was selected by the
employees it could make demands which would be beyond the Respondent's ability to
meet; that if, therefore, the Respondent refused the demands the Union could call a
strike; that if the workers went out on strike the Respondent would keep operating
the plant as best it could and, if necessary, would replace the strikers, which it had a
right to do; and that the plant might well have to shut down completely or partially
but that this would only be as a result of union action and not by Respondent's choice.
In support of its contention that what J. Z. Miller told the employees 'constituted
free speech the Respondent cites the case of Texas Boot Manufacturing Company,
Inc.,9 in which the Board held as protected an employer's telling his employees that he
did not want to do business with the Union that was attempting to organize his plant
because it would be too costly and that if the said union sought to enforce its demands
by a strike, the plant would not close down but would be run by replacements who
would permanently replace the strikers, and that replacements were available from
the large number of unemployed in the immediate area. There is no doubt that in
many respects J. Z. Miller's remarks were similar to the remarks in the cited case
which the Board held to be protected speech.
The General Counsel, on the other hand, contends, that the speeches and remarks
of J. Z. Miller made constant reference to strikes, but no reference to the possibility
of peaceful collective bargaining; made references to detriments to result from unioni-
zation but no reference to possible benefits; and, at the same time, offered to provide
as much in benefits without a union as with one, thus showing the futility of choosing
a union. This, the General Counsel argues, is conduct which the Board and courts
have held to be violative.'0 In all of the cases cited by the General Counsel the Board
found either that the main theme of the Company's antiunion campaigns were that
strikes were inevitable and that as a result the employees who supported the strikes
would be permanently replaced and would lose their jobs," or that the employer's
statement inevitably created the impression that the unionization of the plant could
result only in harm to the employees.12
If J. Z. Miller's prepared speech were to be considered alone in appraising the
-effect thereof, I would conclude that it was no more than an expression of free speech
because, among other things, the possibility of a strike and the ability of the Respond-
ent to replace the strikers was only a small part of that speech. However, the import
of the speech is somewhat changed by other remarks that were made and other matters
8 From the mutually corroborative testimony of Levada Milliken and Bertha Wyatt I
credit this testimony and do not credit Douglas Milliken's denial. Although I note that
both of the women were enthusiastic union adherents, their attitudes and their testimony
struck use as the products of strong but honest defiance.
9 143 NLRB 264
io Citing Ideal Baking Company of Tennessee, Inc, 143 NLRB 546; The Little Rock
Downtowner, Inc, 143 NLRB 887; Surprenant Mfg. Co., 144 NLRB 507.
"Ideal Baking Company of Tennessee, Inc, supra, and The Little Rock Downtowner,
Inc, supra
12 Surprenant Mfg. Co., supra.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that were discussed. In making the assessment, I cannot overlook the summary by
Miller of Dowdy's travels about the country and the ghost towns that Dowdy saw
which resulted from unionization. This, together with the discussion of the possible
strikes and the possible resulting loss of employment to the employees, together with
the complete failure in either the speech or the remarks to assure the employees that
there would be no reprisals because of the unionization, tended to coalesce in the minds
of the employees a picture of inevitable grief and hardship should they select the
Union as their bargaining representative. Otherwise put, the inevitable effect of the
whole of Miller's efforts was that the employees were threatened with a loss of liveli-
hood. Such threats have consistently been considered interference, coercion, and
restraint by the Board. In thus finding, I do not overlook Miller's assurance that if
the plant closed down it would not be because of the Company's desires. Nevertheless,
the picture which he painted was one in which the closing down of the plant and the
resultant loss of employment would inevitably ensue from unionization This, under
all the Board precedent as cited by the General Counsel, constitutes a violation of
Section 8 (a) (1) of the Act.
The other alleged threats by the Respondent's supervisors do not present so difficult
a problem as do the remarks and speeches of J. Z. Miller. Thus, Morris Dowdy's
statement to Buena Jinett to the effect that he could fire her if he wanted to by find
ing a pretext to do so was clearly a threat that Jinett would be discharged if she
continued her union activities. It requires no citation of cases to support this finding
Accordingly, I conclude that Dowdy's remark constitutes a threat within the mean
ing of Section 8 (a) (1) of the Act.
Equally violative was the remark of Supervisor James Bowles to the effect that if
the Union came in and there was a strike there would be no more makeup orders,
production would be cut in half, and half of the employees would be out of work.
This is clearly a threat that the employees would suffer economic harm if the Union
came in. As such, it is clearly interference, restraint, and coercion within the mean-
ing of Section 8 (a)( I) of the Act.
A somewhat similar situation is the one in which Supervisor-Foreman James Miller,
in interrogating Alberta Shelby, asked her, after he told her that she was going to
hear the employer's side of the union question, what they were going to do when
they were laid off and who was going to pay the bills. Since this question followed
questioning about Shelby's union activities, it undoubtedly related to them. Accord-
ingly, I find that the interrogation was, in effect, a threat to Shelby that if the Union
came in they were going to be laid off and would suffer dire economic consequences
therefrom. Of course, such a threat is violative within the meaning of Section
8 (a) (1) of the Act, and I so find.
I have heretofore related the conversation between Charles Gafford, a foreman
and supervisor, and Bertha Wyatt, an employee. During this conversation Gafford,
in discussing the Union and Wyatt's activities in behalf thereof, asked Wyatt if she
was not afraid of losing her job. Then Gafford told Wyatt that he owed for a home
and had not been really looking for a job but he most certainly would be afraid that
he would lose his job if he was going to engage in union activity the way Wyatt was
engaging in such activity. Since this conversation indicated to Wyatt that her
activity could lead to discharge by the Respondent, I find that it was in effect a
threat to Wyatt that she would be discharged should she continue her union activity.
Under the circumstances herein I find this to be interference, restraint, and coercion
and violative of Section 8(a) (1) of the Act.
In still another instance as related above, Douglas Milliken spoke to his relatives,
Bertha Wyatt and Levada Milliken, and told them that he could not sleep because
he was troubled by what would happen. He explained this by saying that this was
because J. Z. Miller was not going to permit the Union to come into the factory
and that they would all lose their jobs if the Union came in . This is clearly a threat
constituting coercion and restraint and is therefore violative of Section 8(a) (1) of
the Act, and I so find.
2. Interrogation
a. The events
(1) J. Z. Miller
About the middle of November 1963, Sammie Wortham asked J. Z. Miller if
Wortham could come to the office to speak to Miller and to look at the books.
BOOT-STER MANUFACTURING COMPANY, INC. 941
After inspecting the books of the Company , Wortham assured Miller that he was
going to side with the Company . During that conversation or at a later time, Miller
told Wortham that he had been told that Wortham was going to prefer charges
against Miller to which Wortham stated that he would never do any such thing.13
(2) Morris Dowdy
Wortham testified that during the latter part of November Morris Dowdy spoke
to him in the pattern office. Only the two of them were present during that conver-
sation . Wortham stated that Dowdy asked him if he, Wortham , had changed his
mind and Wortham told Dowdy that he had been thinking about it but that he had
not changed his mind , to which Dowdy answered , "Well, I figured that." As here-
tofore stated , I do not consider Wortham a reliable witness . Heretofore I have also
discredited Dowdy. In balance , however, because of other considerations set forth
later in this Decision , I credit Dowdy 's denial of this incident over Wortham 's state-
ment and find that this incident did not occur.
Buena Jinett was engaged in conversation by Dowdy during the first part of Octo-
ber 1963 on the lower floor of the plant. Dowdy asked Jinett whether she had gone
to the union meeting the night before and Jinett testified that she had . Dowdy then
questioned Jinett about what occurred at the meeting and asked her if a large amount
of money which the Company was alleged to have was mentioned and Jinett told
Dowdy that she did not remember anyone even speaking about that. Dowdy then
ended the conversation by asking her to think about it that he did not want anybody
to tell him how to run his business.14
Again in the middle of October 1963, Dowdy spoke to Josephine Parker concern-
ing the latter's union activities . He stated that he had heard some pretty wild things
about what had been said at the union meeting the night before and then he went on
to ask Parker if she would tell him what was said . Parker told Dowdy that she had
been unable to go because she could not obtain a babysitter.15
(3) James A. Bowles
Around the middle of October 1963, James Bowles, a foreman and supervisor,
spoke to Marion Darnell and asked the latter why she wanted the Union . Darnell
answered that she wanted it for better job security , better working conditions, and
other benefits. Around the first part of October , Bowles had a conversation with
Margaret Phillips in which he asked Phillips if she thought the Union was coming
in and when she told him that she thought it would , Bowles stated that if it did
come in Miller would not sign a contract . Bowles also had a conversation with
Almeda Harp , also in the latter part of October . Bowles asked Harp what she had
against him and when Harp told him that she did not have anything against him
Bowles asked her why Harp wanted the Union . Harp answered that she just
thought she needed one . Bowles also had a conversation with Ocie Bishop around
33 According to Wortham there were two meetings . Miller described these meetings as
having taken place within a couple of days of each other because of the fact that Wortham
came back a second time and told Miller that even though he felt that the books showed
that the Company had been very generous to the employees in proportion to the amount
of money the Respondent had been making , nevertheless , Wortham's wife had insisted that
Wortham remain loyal to and support the Union. Although I did not find Wortham to be
a very reliable witness inasmuch as he equivocated on cross -examination to a great extent,
nevertheless , inasmuch as Miller admitted in his own testimony that he did speak to
Wortham and asked him about possible charges that Wortham might have filed against
him, I find that this incident occurred as stated above The Respondent argues that the
incident could not have happened because Wortham stated that the conversation took place
on November 1 but that no charges had been filed until November 8 and therefore the
conversation could not have taken place at all . However, Miller's admission that he did
ask Wortham about charges would indicate that there was truth to the Wortham testi-
mony that Miller asked him about the charges before they were filed
11 From the credited testimony of Buena Jinett . I credit Jlnett over Dowdy whom I
have heretofore discredited in other matters.
15 From the credited testimony of Josephine Parker. Again I have credited Parker over
Dowdy whose testimony I have heretofore discredited.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the end of October or the beginning of November. Bishop was wearing a union
button and Bowles asked Bishop if anybody could make her pull her pin off, to
which Bishop answered in the negative.is
(4) Charles Gafford
Gafford was the foreman and supervisor of, among other employees, Bertha
Wyatt and Levada Milliken. He spoke to each of them individually on the same
day, October 4, in the basement of the plant. Gafford asked Wyatt what was
wrong and what the employees were trying to do. He also asked Wyatt whether
she was not afraid she would lose her job. She told Gafford that she was not
afraid and that she did not know what he meant.
With regard to Levada Milliken, Gafford wanted to know what this thing was
that was going around. Milliken asked him what thing he was referring to. Gaf-
ford then mentioned that it was the Union. He then asked Milliken why she
signed a union card. Milliken answered that it was because she felt that the
employees needed the Union to insure seniority and better working conditions.
Gafford told her that he felt that the employees were making a big mistake.17
3. Conclusions as to the interrogation
J. Z. Miller's questions to Wortham concerning possible charges that Wortham
had made against the Respondent although, on the surface, merely inquiries as to
matters which the Respondent would be entitled to know and which would later
become matter of public record anyway, constituted more than mere lawful inquiry.
It was the Union which filed the charges and the questioning of Wortham as to the
nature of the charges could be regarded as indicating that Miller was trying to find
out whether it was Wortham who was the employee who brought about the filing
of charges. Since such questioning could imply that perhaps Miller would there-
after seek reprisal against the employee for such activity, I find that the interroga-
tion was coercive in nature and therefore that it was violative of Section 8(a)(1)
of the Act.
There is little room for doubt that Dowdy's questioning of Buena Jinett with
regard to what occurred at the meeting the night before was violative of the Act
since it sought information concerning protected activity. The same may be said
of Dowdy's interrogation of Josephine Parker. For a like reason I find this inter-
rogation to be violative of the Act.
With regard to the incidents involving James Bowles, I find that his questioning
of Marion Darnell as to why she wanted the Union, his questioning of Margaret
Phillips as to whether she thought the Union was coming in with the incidental
statement that Miller would not sign a contract, his questioning of Almeda Harp as
to why she wanted a union and as to what she had against him, all had a coercive
effect so as to render the interrogation unlawful and violative of Section 8(a)(1).
And I so find.
However, Bowles' questioning of Ocie Bishop with regard to whether anyone could
make her pull her pin off, I do not find to be anything more than mere comment.
I conclude that this is not interrogation of the type which inquires into an employee's
union activity to the point where such inquiry is actual interference with such activity.
I therefore do not find this to'be violative.
-° I credit the testimony of Darnell, Phillips, Harp, and Bishop over the denials of
Bowles that he asked these questions In each instance 'I carefully observed each of the
witnesses and'from their attitude upon the witness stand I was convinced that they were
sincere and forthright in their delivery of the facts to which they testified. Although
Bowles' deportment on the stand was not particularly that of an evasive witness, I par-
ticularly note the testimony of the supervisors in which they admitted that they had
taken the employees working under their supervision to some sheltered part of the plant
and talked to them there alone, away from their fellow employees; concerning the union
campaign and how the supervisors felt about the Union and their beliefs as-to-whether
good or evil could ' come' from the unionization of Respondent's plant The virtual admis-
sion of the supervisors , including Bowles, to the effect-that they'liad spoken to thee 'em-
ployees with regard to the Union convinces me that the likelihood that Bowles asked these
questions as testified above is great. Accordingly, I am' convinced that these' employees
testified truthfully and that the incidents occurred as related above
17 From the credited testimony of Bertha Wyatt and Levada Milliken. In addition to
my observation of these witnesses I credit Wyatt and Milliken not only because I have
heretofore credited them but because, as in the case of Bowles, Gafford admitted that
conversations occurred in which he spoke to employees about the Union.
BOOT-STER MANUFACTURING COMPANY, INC. 943
The interrogation of Bertha Wyatt and Levada Milliken by Charles Gafford I find
to be in the same classification as Dowdy's interrogation of Josephine Parker and
Buena Jinett. Gafford's inquiry of Wyatt if she was not afraid of what she was trying
to do and was not afraid of losing her job implying that she .would lose her job
because of her union activity is grossly violative of Section 8(a)(1) of the Act. I
further find that Gafford's inquiry of Milliken as to what was going on around there
about the Union and his inquiry as to why she signed a union card are of the same
type of coercive interrogation and as such I find that it interfered with the employees'
rights to engage in protected activity. Accordingly, I find all of the foregoing conduct
violative of Section 8 (a) (1) of the Act.
4. Promises of benefit
a. The events
(1) J. Z. Miller
During one of the conversations between J. Z. Miller and Sammie Wortham as
heretofore set forth, a discussion ensued with regard to a possible foreman's job for
Wortham which had previously been mentioned to Wortham by, Morris Dowdy.
Wortham testified that at the first meeting in which he was present in Miller's office,
Miller told him that he, Miller, was looking over Wortham and two other young men
in the factory in the event that the Respondent ever needed another foreman. He
further stated, according to Wortham, that, of the three, the other two were on his
side and that he would like to have Wortham on his side also. On the other hand,
Miller testified with regard to this conversation that it was Wortham who reminded
Miller of the fact that Dowdy had spoken to Wortham on several occasions about a
possible foreman's job for Wortham According to Miller, he asked Wortham when
Dowdy had told Wortham this and Wortham answered that it had happened several
times long before the advent of the Union. Miller answered that he agreed with
Dowdy and that he felt the same way that Dowdy did about Wortham and had so
felt for a long time. Miller further mentioned that Dowdy had spoken to Miller
about a possible foremanship for Wortham. Miller further told Wortham that the
latter was not the top man and that there were three people that they were consider-
ing. On cross-examination Miller admitted that it was possible that he told Sammie
Wortham somewhere in the same conversation that he would like to have Wortham
on his side.
Because Miller's version of this conversation is more complete and because I have
heretofore stated that I was very impressed with Miller's forthrightness and was
unimpressed with Wortham as a witness, I find that Miller's version was more accu-
rate and I credit it.
(2) Morris Dowdy
Wortham testified that around the middle of October, Dowdy spoke to him in
Dowdy's office in the plant and after calling Wortham in asked Wortham how he
would like to have a better job and when Wortham said that he would like it Dowdy
stated that Wortham would not want to stand behind a machine the rest of his life.
Later on, however, at one of the meetings at which J. Z. Miller gave one of his
speeches, Wortham arose and stated that he wanted to say something to the audience.
He was granted permission and he stated that he had never received from Dowdy an
offer of a better job.
Dowdy testified that he recalled the time when he called Sammie Wortham into his
office around October but denied that anything was said with regard to a better job
for Wortham at that time. As noted above, J. Z. Miller testified credibly that the
mention of a foreman's job for Wortham by Dowdy occurred long before the union-
ization took place. Because of Wortham's verbal denial at the speech meeting that
Dowdy had not made him a promise of a job, I find that Dowdy's promise to
Wortham of a better job occurred at a time prior to the organizational campaign by
the Union. Accordingly, I shall dismiss this allegation of the complaint so far as it
applies to Dowdy in regard to Sammie Wortham.
Alberta Shelby had•a conversation with Dowdy sometime in the middle of Octo-
ber. Dowdy talked to Shelby about getting the latter's seniority back. Evidently,
although the record does not explain this, Shelby had lost her seniority rights at a
time when she had to be absent from the plant. Shelby asked Dowdy if she could
get her seniority back and Dowdy stated that he would check the records and see
what could be done about it. He said that it would take a while, probably 2 or 3
weeks. There is no mention in this discussion about the Union.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ocie Bishop testified that Dowdy talked to her during October 1963. Dowdy
asked Bishop if she knew who would be hurt if the Union came in. When Bishop
answered "No," Dowdy said he was the one who would be hurt because he had a
new home and two cars to pay for. Then Dowdy asked Bishop if Bishop would be
satisfied if Dowdy could give her her seniority back. Bishop answered to the effect
that she did not know as she had never given it much thought. Dowdy admitted
that he had had a talk with Bishop but denied that he made any such statement
about promising Bishop her seniority back. He further testified that it was Bishop
who brought up the matter of seniority and asked Dowdy if he would give it back to
her if Bishop changed her mind about the Union. I have heretofore credited Bishop
and discredited parts of Dowdy's testimony. Accordingly, I credit Bishop's version
and find that Dowdy did ask her if giving her her seniority back would satisfy Bishop.
b. Conclusions as to the promises of benefit
Inasmuch as the conversation between Miller and Wortham took place in the con-
text of discussion about the Union, I am constrained to conclude that what Miller
did was promise Wortham a benefit, namely, a possible position as a supervisor.
This conclusion is strengthened by J. Z. Miller's admission that he might have told
Wortham, in connection with the mention of the possible foreman's job, that he
would like to see Wortham on his side. Although this was not an exclusive prom-
ise, and Miller did state that there were others to whom such a position might go if
it opened up in the future, nevertheless, it was obviously made for the purpose of
fostering Wortham's possible inclination in the direction of the Respondent in the
campaign to persuade the union adherents to change their minds and support the
Respondent against the Union. I find that such a promise constitutes interference
with the employees' Section 7 rights and thereby conclude that this was a violation
of Section 8 (a) (1) of the Act.
As noted above, I have already found that if Dowdy did indeed make a promise
to Wortham of a better job it was made before the beginning of a union campaign
and therefore cannot be violative of Section 8(a) (1). As regards Dowdy's conver-
sation with Albert Shelby, I find that it was Shelby who brought up the conversa-
tion about the seniority, that the seniority promise was not made in the context of
discussion about the Union, and, therefore, I find that all that Dowdy did was prom-
ise to look into the matter for Shelby and there was no definite promise made of any
return of Shelby's seniority. Accordingly, I find that this conversation was not inter-
ference, coercion, and restraint and did not therefore violate Section 8(a)(1) of the
Act. I shall recommend dismissal thereof.
However, I cannot find the same with regard to Dowdy's discussion about senior-
ity with Ocie Bishop. Here the discussion of seniority occurred immediately after
the discussion with Bishop to the effect that Dowdy would be the one who would be
hurt in the event the Union came in. It was then that Dowdy asked Bishop whether
she would be satisfied if he returned her seniority to her. I conclude that the offer to
Bishop was made for a quid pro quo, namely, that if Bishop would stop her union
activity she would be given her seniority back. This is a promise of benefit which
definitely interfered with the employees' Section 7 rights and, therefore, is a viola-
tion of Section 8(a)(1) of the Act. I so find.
5. Other acts of interference, coercion, and restraint
a. Creation of impression of surveillance
On or about the first part of November at the time that Sammie Wortham was in
conversation with J. Z. Miller in the latter's office, mention was made by Miller of
the fact that he had been told by several people who were at a union meeting that
Wortham had been conversing at the meeting with "Red" Temple, the union organ-
izer, and others , and that Wortham had discussed preferring charges against Miller.18
Around the first part of October while Wortham was working at his machine,
Douglas Milliken, a supervisor, talked to him and asked him why he was for the
>e From the credited testimony of J. Z. Miller. Wortham testified that Miller stated that
he had heard that Wortham sat up front with the union men and that he was very good
friends with Red Temple, the union organizer As heretofore set forth, I have credited
Miller's testimony over that of Wortham as the more reliable. For the same reason, I
credit Miller's version of the conversation lieie over Wortham's version of the conversation.
BOOT-STER MANUFACTURING COMPANY, INC. 945
Union . Then Milliken stated to Wortham that he knew that Wortham was for the
Union.19
In the latter part of October 1963, James Miller had a conversation , as heretofore
related , with Alberta Shelby . Miller, who was a supervisor and foreman , told Shelby
that he knew that Shelby had been going to union meetings ; that Shelby had heard
the Union 's side and now he thought that she should hear the Company 's side.20
It is clear that in each of the three foregoing incidents , a representative of the
Respondent acknowledged that he had heard of the union activities of the employees
involved. The inference is clear that such knowledge must have come from someone
who had attended the union meetings. Accordingly , I find that these incidents cre-
ated the impression that the Respondent was in some manner observing the union
activities of the employees . I find that the creation of such an impression of sur-
veillance constitutes interference , coercion , and restraint within the meaning of Sec-
tion 8 (a) (1) of the Act.
b. Other statements
During the middle of October 1963, James Bowles, a foreman and supervisor,
engaged Josephine Parker in a conversation , parts of which have heretofore been
related . Bowles told Parker that he would not work under a union and that if a
union came in one door he would go out the other. Bowles added that Mr. Miller,
undoubtedly referring to J. Z . Miller, would never sign a contract with the Union.21
The flat statement that Miller, the president of the Respondent , would never sign a
contract with the Union, coming from a foreman with some status in the hierarchy
within the Respondent's plant, created a definite impression that the organization by
the Union of the Respondent 's employees would be a futile act. Accordingly, I find
that such statement constitutes interference , coercion , and restraint in violation of
Section 8 (a) (1) of the Act.
C. The refusal to bargain
1. The appropriate unit
It is alleged in the complaint and the Respondent admits that all production and
maintenance employees employed at the Respondent 's Clarksville, Tennessee , plant,
excluding office clerical employees , guards, and supervisors as defined in the Act,
constitute an appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. I so conclude and find.
2. The Union 's majority status
As set forth in detail earlier in this Decision , the Union began its organizational
campaign among the Respondent 's employees in September 1963. By October 10,
1963, the Union had obtained sufficient cards to make a demand for recognition and
bargaining upon the Respondent . On that date , therefore , the Union addressed a
letter to the Respondent in which it requested recognition and bargaining and offered
to prove its majority status through an impartial third party who would count the
cards. This the Respondent refused to do on October 16, and in its letter of refusal
apprised the Union that it did not believe that the Union had a majority of the
employees.
At the hearing, the General Counsel introduced into evidence 130 designation
cards, each of which was identified by its signer , who also testified that he or she
read the card , knew the contents thereof, filled in the blank spaces, and signed it on
the date appearing on the face of the card . All of the cards were dated within
several weeks before October 10, 1963 . Inasmuch as on the crucial date , October 10,
1963, there were 184 employees in the unit hereinabove found to be appropriate,
the 130 cards which the Union had in its possession would , under ordinary circum-
stances, be sufficient to establish majority status.
10 Although I have in other parts of this Decision discredited the testimony of Wortham,
I have also discredited the testimony of Milliken . From my observation of both of them
I find that in this particular instance Wortham was the more reliable of the two I there-
fore do not credit Milliken 's denial of this statement
20For the reasons heretofore assigned , I credit the testimony of Alberta Shelby over the
testimony of James Miller and therefore do not credit Miller's denial of this incident.
21 For the reasons heretofore assigned , I credit Parker 's testimony with regard to this
incident over the denial of James Miller.
770-076-65-vol. 149-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the Respondent contends that the cards cannot be relied upon to prove
majority status because, according to the Respondent , a majority of the employees
never intended to designate the Union as their collective-bargaining representative.
In support of this contention , the Respondent offers the fact that 62 of the General
Counsel's 130 witnesses who testified as to their cards, testified , on cross-examination,
that they did not understand that the effect of the card was a designation of a
collective-bargaining representative . These witnesses testified that they intended by
signing the card to establish a sufficient showing of interest to have a Board -conducted
election . They each stated affirmatively that having an election was the only purpose
for which they signed the card . This, according to the Respondent , would leave a
total of not more than 58 out of 184 of the Respondent 's employees who intended to
designate the Union as collective -bargaining representative and, therefore , there was
a failure on the part of the General Counsel to prove majority status of the Union.
Analysis of the testimony of the 62 employees who testified that they did not
intend to designate the Union as their bargaining representative shows that none of
these employees communicated to the Union that this was their purpose . Further
analysis shows that a number of these employees actually signed cards for the pur-
pose of designating the Union but changed their minds after the signing. None of
these employees testified that they had communicated their change of mind to the
Union . Additional analysis shows that of those employees who testified that they
signed the cards only for the purpose of obtaining an election , only two tesitfied
that a named individual misrepresented to them that the cards were only for the
purpose of obtaining an election and not for the purpose of designating the Union
as their bargaining representative . The others who testified that they were told, or
understood , or that it was common knowledge that the purpose of the cards was only
to obtain an election , failed to state or designate any individual who told them that
the cards were for this limited purpose.
With regard to the cards themselves , they were ordinary union designation and
authorization cards, the language of which read as follows:
Authorization
I hereby designate and authorize the United Rubber , Cork , Linoleum and Plas-
tic Workers of America , AFL-CIO, to act as my collective bargaining repre-
sentative with my employer.
After this is a space for the signature , date, street address, telephone number, depart-
ment , and the name of the employing company. Thus, it would seem that the union
authorization card signed by the 130 employees was not unusual and did not in any
way limit the purpose of the cards to having an election.
Moreover , it should be noted that the same cards were used and approved by the
Board in the case of Acme Boot Company, Inc.22
The Board has held that an uncommunicated change of mind by a signer of a
union authorization card does not affect the validity of such authorization card.23
Moreover, the Board has held, with court approval , that later changes of mind by
employees could not invalidate cards which the employees had earlier signed. They
have held that the designation on an authorization card is an overt action of an
employee which cannot be affected by his thoughts or afterthoughts as to why he
signed a union card.24
On the basis of the foregoing , I therefore find that the testimony of many of the
employees that they changed their minds after designating the Union as their bar-
gaining representative is without weight as to the validity of the authorization cards
submitted by the General Counsel and identified at the hearing herein 25
22143 NLRB 628.
23 Idaho Egg Producers, 111 NLRB 93 , 106-107; Tinley Park Dairy Co., d/b /a Country
Lane Food Store, 142 NLRB 683, 686.
u See, for example , Rohtstein & Co., Inc., 120 NLRB 1556; Gene Hyde d/b/a Hyde's
Super Market, 145 NLRB 1252. For court approval , see Joy Silk Mills, Inc v. N.L.R B.,
185 F 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v . Gorbea Perez d Morell,
S. en C, 300 F . 2d 886 ( C.A. 1) ; N.L.R.B. v . Geigy Company, Inc., 211 F. 2d 553 ( C.A. 9).
25 The Respondent , at the hearing , made an offer of proof that if allowed to testify, the
employees would testify to the effect that they changed their minds through no restraint
or threats on the part of the Employer , that such change of mind was freely exercised, and
that the change of mind was made before the crucial date of October 10, 1963 . I rejected
that offer of proof on the basis that the uncommunicated change of mind could have no
effect upon the validity of the cards . I reaffirm that rejection at this time.
BOOT-STER MANUFACTURING COMPANY, INC. 947
With regard to the defense that there was a misunderstanding or a misrepresenta-
tion with regard to the purpose for which the cards were signed, the Board has also
long held that such misrepresentation must be direct. Moreover, in the recent case
of Winn-Dixie Stores, Inc., et al.,26 the Board held that where there was no evidence to
negate the overt action of the employees of having signed cards designating the
Union as the bargaining agent, the cards are acceptable for the purpose of determin-
ing majority status and what the signers thereof may have understood to be the
purpose of the cards was immaterial. In the instant case there is no direct evidence
of misrepresentation in the securing of the cards except in the case of two cards
where the employees were told, according to the employees' testimony on cross-
examination, that the cards were for the purpose of obtaining an election.27
Thus, I find that in the case-at-bar the cards, on their face, explicitly authorized
the Union to act as the bargaining agent of the employees. There is nothing on the
cards to indicate that the cards were for the purpose either solely, or dually with the
other purpose, of securing an election. Moreover, there were only two employees,
as stated above, who testified that misrepresentations were made to them. Thus,
even if the cards of these two are rejected as not proper to support the Union's
majority claim, I find that there are still ample cards to more than esatblish that the
Union enjoyed majority status on October 10, 1963. I find that there is an absence
of evidence here to negate the overt action of the employees in signing cards desig-
nating the Union as their bargaining agent.28
Accordingly, and on the basis of the entire record, I find that on October 10, 1963,
the crucial date herein, the Union was designated by a majority of the Respondent's
employees to represent them as their collective-bargaining agent , and was, therefore,
the majority representative on that date.
3. Conclusions as to the refusal to bargain
It is basic, and the Board has held,29 that an employer may in good faith insist
upon a Board election as proof of a union's majority, but that it unlawfully refuses
to bargain if its insistence on such election is motivated not by any bona fide doubt
as to a union's majority but rather by a rejection of the collective-bargaining principle
or by a desire to gain time within which to undermine the union. The Respondent's
initial refusal to recognize and bargain with the Union must be examined in the
light of all other relevant facts of the case including the conduct of the Respondent,
the sequenhe of the events, and the time lapse between the refusal and the unlawful
conduct.
In the instant case, the demand was made on October 10, 1963, and the Respond-
ent refused to bargain on October 16, 1963, in its letter to the Union stating that it
doubted the Union's majority. Thereafter, a consent-election agreement was entered
into and the Respondent seemed most anxious to go to an election. However, between
the time that the Union began organizing in the plant and the time in which J. Z.
Miller admittedly learned of the fact that his employees were organizing, as evi-
denced by the fact that he started to make speeches to the employees before the
Union made its request for recognition, the series of threats, interrogations, promises
of benefit, and other acts heretofore found to be unfair labor practices began to
occur. These unfair labor practices continued to take place until after the consent-
election agreement was signed . J. Z. Miller, the Respondent 's president , strongly
opposing the Union, immediately embarked upon an antiunion campaign and in
doing so overstepped the boundaries of permissible conduct. While I conclude and
believe that much of what Miller did was done in good faith, nevertheless, as hereto
found, Miller and the supervisors who were responsible to him did nevertheless
engage in the unlawful activity heretofore found. While I do not find that the
Respondent's conduct was designed to gain time in which to destroy the majority
which the Union enjoyed on October 10, 1963, I nevertheless find that by engaging
in this unlawful activity and at the same time refusing to participate in a third-party
count and refusing to bargain, the Respondent rejected the collective-bargaining
principle.
28 143 NLRB 848.
17 See also in connection herewith , Cumberland Shoe Corporation, 144 NLRB 1268.
28 This case is clearly distinguishable from Englewood Lumber Company, 130 NLRB 394,
where the misrepresentation was on a large scale and deeply affected all of the cards.
Moreover, a leader in the soliciting testified that he told practically everyone he talked to
that the cards would be sent to the Board so that a secret election could be held. There
is no such direct evidence in the instant case.
Joy Silk Mills, Inc., 85 NLRB 1263.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that by refusing to bargain with the Union and insisting upon
an election, the Respondent did not act in good faith and that its refusal to bargain
with the Union constituted a violation of Section 8 (a) (5) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section IV, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
VI. THE REMEDY
It having been found that Respondent has engaged in and continues to engage in
certain unfair labor practices, it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action,
including the posting of appropriate notices designed to effectuate the policies of the
Act, as amended.
It having been found that the Respondent by threats, interrogation, promises of
benefit, and creation of the impression of surveillance, interfered with, restrained,
and coerced its employees in violation of Section 8 (a) (1) of the Act, I shall recom-
mend that the Respondent cease and desist therefrom.
It having been further found that the Respondent refused to and continues to
refuse to bargain collectively with the Union, thereby interfering with, restraining,
and coercing its employees, I shall recommend that the Respondent cease and desist
therefrom and also, upon request, bargain collectively with the Union with respect to
wages, hours, and other terms and conditions of employment and embody in a signed
agreement any understanding reached.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Boot-Ster Manufacturing Company, Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers Union, AFL-CIO, affili-
ated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO,
is a labor organization as defined in Section 2 (5) of the Act.
3. By threatening its employees with economic reprisals because of their union
activity, making promises of benefit to them if they would cease their union activities,
interrogating them concerning union affiliations and activities, creating the impres-
sion of surveillance of union activities, thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. All production and maintenance employees employed at Respondent's Clarks-
ville, Tennessee, plant, excluding office clerical employees, guards, and supervisors as
defined in the Act, constitute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. At all times material herein the Union above named has been and now is the
exclusive representative of all of the employees in the appropriate unit for the pur-
pose of collective bargaining within the meaning of Section 9(a) of the Act.
6. By refusing to bargain collectively with the Union above named as exclusive
bargaining representative of its employees in the appropriate unit named above, the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, I recommend that the Respondent, Boot-Ster Manufac-
turing Company, Inc., its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening its employees with economic reprisals should the Union be cho-
sen by the employees as their bargaining representative, interrogating its employees
with regard to their union activities and affiliations, making promises of benefit for
BOOT-STER MANUFACTURING COMPANY, INC. 949
the purpose of discouraging membership in the Union or support thereof , and creat-
ing the impression of surveillance of the employees' union activities , in a manner
constituting violations of Section 8(a) (1) of the Act.
(b) Refusing to bargain collectively with United Rubber , Cork, Linoleum and
Plastic Workers Union , AFL-CIO, affiliated with United Rubber , Cork, Linoleum &
Plastic Workers of America , AFL-CIO, as the exclusive representative of all its
employees in the following appropriate unit:
All production and maintenance employees employed at Respondent 's Clarks-
ville, Tennessee , plant, excluding official clerical employees , guards, and super-
visors as defined in the Act.
(c) In any like or similar manner interfering with, restraining , or coercing employ-
ees in the exercise of the right to self-organization , to form labor organizations, to
join or assist the above -named Union , or any other labor organization , to engage in
other concerted activities for the purposes of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act.
(a) Upon request bargain collectively with the aforesaid Union as the exclusive
representative of all its employees in the aforesaid unit, and , if an understanding is
reached , embody such understanding in a signed agreement.
(b) Post at its plant in Clarksville , Tennessee , copies of the attached _ notice
marked "Appendix ." 30 Copies of the notice , to be furnished by the Regional Direc-
tor for Region 26 , shall, after being duly signed by a representative of the Respond-
ent, be posted immediately upon their receipt, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken by Respondent to insure
that these notices are not altered , defaced, or covered by any other material.
(c) File with the Regional Director for Region 26, within 20 days of the date of
the service of this Trial Examiner 's Decision and Recommended Order, a written
statement setting forth the manner and form in which it has complied with this Rec-
ommended Order.31
It is further recommended that the complaint be dismissed in all other respects.
30If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "a Decision and
Order "
31 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 26, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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 threaten our employees with economic reprisals in the event the
Union is selected as the bargaining representative of our employees.
WE WILL NOT interrogate our employees concerning their union activities in a
manner constituting interference, coercion, and restraint in violation of Section
8 (a) (1) of the Act.
WE WILL NOT make any promises of benefit to any of our employees in a
manner constituting interference, coercion, and restraint in violation of Section
8(a)(1) of the Act.
WE WILL NOT in any manner create the impression of surveillance of our
employees' union activities in a. manner constituting interference, coercion, and
restraint in violation of Section 8 (a) (1) of the Act.
WE WILL, upon request, bargain collectively with United Rubber, Cork, Lino-
leum and Plastic Workers Union, AFL-CIO, affiliated with United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO, as the exclusive bargaining
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent of the employees in the appropriate unit with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed agreement. The appro-
priate unit is:
All production and maintenance employees employed at our Clarksville,
Tennessee, plant, excluding office clerical employees, guards, and supervisors
as defined in the Act.
WE WILL NOT in any like or similar manner interfere with, restrain, or coerce
our employees in the exercise of their right to self organization, to form, join, or
assist United Rubber, Cork, Linoleum and Plastic Workers Union, AFL-CIO,
affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activity
for the purpose of collective bargaining or other mutual aid or protection or to
refrain from any or all such activities.
All our employees are free to become, remain, or refrain from becoming or
remaining , members of any labor organization.
BOOT-STER MANUFACTURING COMPANY, 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.
Employees may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161, if they have any question concerning this notice or compliance with
its provisions.
Puerto Rico Telephone Company and Sindicato de Trabajadores
Packinghouse , United Packinghouse Food & Allied Workers,
District 9 of Puerto Rico, AFL-CIO, and its affiliate Union
de Empleados de la Industria del Telefono de Puerto Rico.
Local 963. Case No. 24-CA-1739. November 20, 1964
DECISION AND ORDER
On February 3, 1964, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled case finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
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
149 NLRB No. 84.