Boyce Machinery Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1963

141 N.L.R.B. 756 (N.L.R.B. 1963)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained that only a systemwide unit was appropriate for its maintenance
employees.
On December 13, 1962, after the close of the hearing herein, David
L. Cole, impartial umpire under the AFL-CIO Internal Disputes
Plan, on the basis of complaints filed by the IAM and Building Serv-
ice, rendered his Determination finding the Amalgamated's representa-
tion demand upon the Employer to be in violation of the AFL,-CIO
"no-raid agreement." Following issuance of that decision, the Amal-
gamated notified the Board that it wished to withdraw its claim to
represent any employees of the Employer not previously represented,
and urged dismissal of the Employer's petitions. The IAM asked
permission to withdraw its petitions if the Board allowed the Amal-
gamated to withdraw, and it joined in the motion of the Amalgamated
to dismiss the Employer's petitions. The request by the Amalgamated
to withdraw its representative claim, and of the JAM for withdrawal
of its petitions are hereby granted.'
In view of the foregoing and upon the entire record, we find that,
as no union claims to represent the employees in the unit which the
Employer maintains is appropriate, and as no labor organization
seeks an election in any other unit, no question concerning representa-
tion exists. Accordingly, we shall dismiss the Employer's petitions.5
[The Board granted the request of the International Association
of Machinists, AFL-CIO, to withdraw its petitions filed in Cases
Nos. 10-RC-5376, 5401, 5402, 5403, 5404, and 5405, and dismissed the
petitions of Southern Greyhound Lines, Division of The Greyhound
Corporation, filed herein in Cases Nos. 10-RM-341, 345, 346, 347, 348,
349, and 352.] 6
6 In the event the unions purporting to represent the employees in the units involved
in this proceeding make a claim upon the Employer within 6 months from the date of
this Order, a motion by the Employer requesting reinstatement of the petitions will be
entertained.
4 These requests to withdraw are granted with prejudice to the filing of petitions by
either of these unions for a period of 6 months from the date of the Order herein, unless
good cause is shown why the Board should entertain a new petition filed prior to the
expiration of such period.
5 Restaurant if Tavern Owners Association of Salem, 126 NLRB 671 ; Maclobe Lumber
Company of Glen Cove, et at, 120 NLRB 320 Our dismissal of these petitions is not to
be construed as a determination concerning the appropriateness of any of the units in-
volved herein.
Boyce Machinery Corporation and International Union of Oper-
ating Engineers , Local 406, AFL-CIO and Employees Com-
mittee. Case No. 15-CA-2061. March 06, 1963
DECISION AND ORDER
On October 22,1962, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled case, finding that the Respondent
141 NLRB No. 76.
BOYCE MACHINERY CORPORATION 757
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 Intermediate Report.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a support-
ing brief.
Pursuant to the provisions of Sectino 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications noted herein.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications :
The first sentence of paragraph 2(b) of the Recommended Order
is amended 1 by substituting the following therefor :
Post at Respondent's establishment at Reserve, Louisiana, copies
of the attached notice marked "Appendix."
The fourth paragraph of the Appendix to the Intermediate Report
is deleted and the following inserted in lieu thereof.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights guaranteed
in Section 7 of the Act.
All of you are free to become or remain, or to refrain from be-
coming or remaining, members of a labor organization, except to
the extent that such rights may be affected by an agreement con-
'The Recommended Order of the Trial Examiner provides for posting at all of Re-
spondent 's branches. As the unfair labor practices herein occurred only at the Baton
Rouge branch and there is no indication that employees at Respondent's other locations
were aware of the unfair labor practices, we would, in accordance with our usual prac-
tice, confine such posting to the Baton Rouge branch , were it still in existence . However,
at the bearing before the Trial Examiner , the Respondent's general service manager testi-
fied that plans were then current to cease operations at Baton Rouge and to consolidate
them with other operations at a new establishment owned by Respondent at Reserve.
Louisiana . He also testified that it was the policy to accept transfers to Reserve from
employees who applied therefor from Baton Rouge. Although at the time of the hearing
no date for effectuating such plans had been set, we take official notice from Case No.
15-RC-2510 ( not published in NLRB volumes), which involves the same parties as the
instant case , that the Baton Rouge branch has now ceased operations. Accordingly, as
the Baton Rouge branch is no longer in existence , we shall provide for posting at Reserve.
Rapid Bindery Inc., 127 NLRB 212.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forming to the provisions of Section 8(a) (3) of the National
Labor Relations Act, as amended.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, in which charges were filed on March 23 and April 17, 1962, and
the complaint was issued on May 25, involves allegations that the Respondent, Boyce
Machinery Corporation, violated Section 8(a)(1) and (2) of the National Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. On July 17, 1962, Trial
Examiner A. Bruce Hunt conducted a hearing at Baton Rouge, Louisiana, at which
the General Counsel, the Respondent, and International Union of Operating Engi-
neers, Local 406, AFL-CIO, were represented. No appearance was entered by
Employees Committee, nor did the Committee file an answer. Upon the entire
record, and from my observations of the witnesses, I make the following:
FINDINGS OF FACT
1. THE RESPONDENT
Boyce Machinery Corporation, a Louisiana corporation, is engaged in the sale
and service of heavy construction machinery. It has its principal office and place
of business at Baton Rouge, Louisiana, and it maintains branches in other cities
within that State. During a representative 12-month period, the Respondent pur-
chased machinery and supplies valued in excess of $50,000 which were shipped to it
directly from points outside Louisiana, and in turn it shipped products valued
in excess of that sum directly to points outside Louisiana. There is no dispute, and
I find, that the Respondent is engaged in commerce within the meaning of the Act.
H. THE UNION; THE EMPLOYEES COMMITTEE
International Union of Operating Engineers, Local 406, AFL-CIO, herein
called the Union, is a labor organization which admits to membership em-
ployees of the Respondent.
Employees Committee, herein called the Committee, was formed during the
autumn of 1961. A question for decision below is whether the Committee is a labor
organization.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges in substance, and the Respondent denies, that (1) about
September 1961 the Respondent formed a labor organization, the Committee, and
thereafter dominated and assisted it, and (2) during March 1962, the Respondent
invalidly interrogated and threatened employees concerning union activities.
B. The Committee
There is no factual dispute concerning the Committee. The basic question is
whether the Committee is a labor organization within the meaning of Section 2(5)
of the Act, which reads:
The term "labor organization" means any organization of any kind, or any
employee representation committee . in which employees participate and
which exists for the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours of employment,
or conditions of work. [Emphasis supplied.]
The Respondent's employees at the Baton Rouge plant are engaged primarily in
maintenance work. The number so engaged is about 35. They have not selected
a labor organization as their representative. On September 20, 1961, the Respondent
distributed to its employees in that city, as well as to employees at its branches else-
where in Louisiana, a statement of "Employment Policies and Procedure, Parts and
Service Departments." The statement, consisting of 12 pages, is devoted largely
to a recitation of working conditions which the Respondent had determined uni-
laterally and which include such subjects as job descriptions and classifications, wage
rates, hours of work, seniority, holidays, vacations, and layoffs and recalls. In
addition, the statement provided for the creation of "an Employees Committee" at
the Baton Rouge plant, to consist of three employees (each to be the representative
BOYCE 1VIACHINERY CORPORATION 759
of a group of employees according to job classifications) who would meet with
management monthly "for the purpose of working together to solve mutual problems
and to improve the safety and general welfare of the employees and the Company." 1
The statement sets forth a 3-stage procedure for handling grievances and provides
that an aggrieved "employee, if he so desires, shall be allowed to have the Chairman
[of the Committee] or the representative of his group on the Employees Committee
accompany him in presenting his grievance at each of the above stages."
On or about October 4, 1961, the Respondent appointed two members of the
Committee, the appointees having been the men of greatest seniority within their
respective groups and, therefore, having been appropriate appointees under the
statement of "Employment Policies and Procedure." The third member of the
Committee was selected by the employees in the third group, the appointment not
having been made by the Respondent because all the employees in the group possessed
the same seniority.
On the same day that the members of the Committee were designated, they selected
from among themselves one member to be chairman. They also participated in their
first meeting with representatives of management. Such joint meetings were held
monthly thereafter, with one exception, at least to the date of the hearing. The
initial 15 minutes of each meeting were devoted to discussions concerning safety.
Thereafter, to quote from the agreed factual statement of the parties, a representative
of management inquired of each committeeman whether the latter had "any gripes
[or] complaints from any of the employees [whom] he represents ' During
1962 the representatives of the employees and management discussed the following
subjects among others: the distribution of overtime, the alleged maltreatment of an
employee by a supervisor, automatic wage increases, and the cleanliness of restrooms.
The Respondent argues in its brief that this "is a case of common sense and not
a case of technical rules," that its statement of "Employment Policies and Procedure"
contains 17 "basic provisions, many of them broken down into subsections," that the
validity of numerous provisions is not challenged by the General Counsel, and that the
statement was issued in order that (1) the employees could be well informed con-
cerning working conditions, and (2) there be "some channel of communication"
whereby the Respondent "could find out the problems of its employees and act
thereupon . . The Respondent argues also that its institution of a grievance
procedure should not be held "to mean that the company has created a labor organiza-
tion and dominated the same" because the result would be that "thousands of em-
ployers who employ millions of unorganized workers had better not give their
employees an opportunity to present questions, complaints or grievances without fear
of retaliation or discrimination." The Respondent is mistaken. The invalidity in
the Respondent's actions lies not in its unilateral determination of working condi-
tions for its employees, who have not selected a labor organization to represent them,
but in its domination of a committee which serves as the representative of employees
in processing grievances and in other matters? The Respondent concedes that the
members of the Committee are "representatives of the various job classifications," and
the factual recital above leaves no doubt that those members, representing employees,
deal with "management on a variety of subjects within the employment relationship,"
Whirlpool Corporation, Marion Division, 126 NLRB 1117, 1132. The Committee
is a labor organization. N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc.,
360 U.S. 203; N.L.R.B. v. Thompson Ramo Wooldridge, Inc., 305 F. 2d 807 (C.A. 7).
Section 8(a) (2) of the Act provides that it shall be an unfair labor practice for an
employer "to dominate or interfere with the formation or administration of any
labor organization or contribute financial or other support to it .. ." In its brief,
the Respondent acknowledges inter alia that it established the Committee, that it
"determined the number, selection and length of time the employees would remain
on the committee," that the Committee may not be enlarged or otherwise changed
without its approval, that it "set the time of the committee meetings and participated
in the location and frequency of the committee meetings," and that the committeemen
"were paid for attending the meetings during working hours and were paid if the meet-
1 The statement provides for the creation of a similar committee at each of the Re-
spondent's branches, "modified as to size and composition in accordance with the number
of employees at each branch," but the record does not disclose details concerning any
committee which may have been established at a branch. The only committee which is
named in the complaint , and which was served with a copy thereof, is the committee at
the main office and plant in Baton Rouge.
21n letters of February 9, 1962 , to employees , the Respondent said that its "Employ-
ment Policies and Procedure" provide "for a working grievance committee to protect your
interests."
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings ran over to non-working time. " I find that the Respondent , in its relations with
the Committee , violated Section 8 ( a) (2) and (1) of the Act .3
C. Interference, restraint, and coercion
On March 5, 1962, the Union filed a petition for an election at the Respondent's
plant in Baton Rouge. The Union and the Respondent agreed to an appropriate unit
of maintenance employees, and an election was conducted on March 16. The Union
lost, 16 to 17, and it filed objections which were pending before the Regional Director
at the time of the hearing herein? The complaint alleges that about the time of the
election the Respondent engaged in conduct which was violative of Section 8(a) (1).
George Spainn, an employee, testified for the General Counsel that he had separate
conversations before and after the election with Lloyd Clift, the Respondent's shop
manager, concerning a raise in pay. According to Spainn, Clift agreed to seek a raise
for Spainn but, after the election, told Spainn that whenever he had mentioned a raise
to Edward Conner, the Respondent's general service manager, Conner had told Clift
"about them 16 votes" for the Union. Insofar as appears, Clift did not elaborate to
Spainn. On cross-examination, Spainn testified further that Clift had not said that
Spainn did not receive an increase in pay because of the votes in favor of the Union.
On the basis of Spainn's testimony, and without reference to Clift's testimony in con-
tradiction, I conclude that the record will not support a finding that Clift told Spainn
that the votes in favor of the Union constituted a reason for Spainn's not having re-
ceived a wage increase. On the other hand, there is testimony by Spainn, which I
credit, to the effect that before the election Clift told him that the date of the election
was "getting close" and asked him (1) whether representatives of the Union had
visited Spainn at his home, and (2) how Spainn intended to vote .5
On or about March 10 and 14, the employees received letters from the Respondent
in which it advocated that they vote against the Union. The General Counsel does
not contend that any portion of the letters violated the Act.
Prior to the election, A. A. Piper, the Respondent's service manager, talked with
Sam Hutchinson, an employee who was hired during 1962. Piper spoke to Hutchinson
of an attempt by another labor organization during 1961 to organize the plant, saying
that the Respondent "had gotten rid of the instigators . . . and that is probably what
would happen to them again." Piper said also that the employees did not need a union
and that they "had company representation . . . [which] wouldn't cost" them
anything.6
3 The initial charge in this case was filed on March 23 , 1962 , alleging violations of
Section 8(a)(1). A copy was served upon the Respondent 3 days later. The amended
charge, alleging violations of Section 8(a) (2) also, was filed on April 17 and a copy was
served the next day. The "cutoff dates" under the 6-month proviso to Section 10(b) are
September 26 and October 18, 1961. We have seen that the first members of the Com-
mittee were designated by the Respondent on or about October 4, 19G1 . Therefore, as
the General Counsel requests, the designations are not held to have been violative of See-
tion 8(b) (2).
41n its brief , the Respondent says that the Regional Director has since ruled on the
objections and that, on August 3 , the Respondent filed exceptions to the Regional Director's
report.
s Clift's testimony is that be may have spoken to Spainn about the election's "getting
close," but he denied that he made the inquiries . I was impressed unfavorably by cer-
tain portions of Clift's testimony , however, and, as will be recited , the record reflects that
the Respondent was interested in learning whether the Union's representatives had en-
gaged in organizational activity among the Negro employees , of whom Spainn is one, and
whether those employees would vote against the Union.
6 These findings are based upon Hutchinson 's testimony . He was called as a witness by
the General Counsel to testify about another subject matter, and the conversation with
Piper was disclosed during cross-examination when lie was asked whether he ever heard
any representative of management say that, if the Union should win the election, anyone
would be replaced My impression of this testimony is that Hutchinson told the truth,
and the impression is not destroyed by Hutchinson's additional testimony that he had
been discharged. On the other hand, Piper testified for the Respondent that he had
talked with a number of employees before the election, explaining the benefits enjoyed by
them, but he denied that he told anyone that employees would be replaced if the Union
should win the election With respect to his conversation with Hutchinson, Piper testified
that he "pointed out the company benefits and everything" and asked Hutchinson to vote
against the Union, but Piper was not asked expressly about Hutchinson's testimony that
Piper had spoken of the discharge of instigators Near the close of Piper's direct examina-
BOYCE MACHINERY CORPORATION 761
Piper testified that he talked with all of the approximately 28 employees whom he
supervises. Upon one occasion he talked with Spainn and other Negro employees
named Eubanks and England. Piper asked what they thought of the Union, and
Spainn answered that they would "try to vote it out" as they had done with another
labor organization in the 1961 election. Piper said that that was what he wanted them
to do. He said also that in about 3 months the Union would "have all of you colored
boys off these welding machines" and that "the white trash will come rolling in.,, 9
Three additional employees with whom Piper talked are Charles Prophet, Jesse
Herbert, and John Allen, all of whom are Negroes. Piper asked what they thought
of the Union, to which Allen responded that they would "vote the union out," and
Piper said, "That is good." Piper said also that, if the Union should win the election,
the Union would replace the Negro employees with whites .8 Among the other sub-
ordinates of Piper whom he engaged in conversation about the election, two Curtis
Chaumond and Daniel Beck, were witnesses for the General Counsel. It suffices to
say that Piper asked Chaumond what he thought of the Union, but that in other re-
spects the evidence will not support findings of unfair labor practices. The conver-
sations are discussed in the footnote .9
The remaining conversations of a management representative with employees
involve Conner, the Respondent's general service manager. Conner testified that he
had "made a point" to interview all employees who were eligible to vote in the
election, that each interview lasted from about 10 to 25 minutes, that "in varying
tion, he fainted from a heart ailment. He was removed to a hospital, and further direct,
as well as all cross-examination , was waived
7 The findings concerning Piper's remarks are based upon Spainn's testimony. Eubanks
and England were not called as witnesses for any party On the other hand, Piper testi-
fied that his conversations with all subordinates were alike, that he spoke of the benefits
to employees in working for the Respondent, and that he did not inquire what they
thought of the Union nor say that some employees might be replaced if the Union should
win the election. I am constrained to reject Piper's denials Spainn's testimony con-
cerning the conversation was given convincingly, and the findings below leave no doubt
that representatives of management did speak to Negro employees concerning their re-
placement in the event of a union victory at the polls.
6 These findings are based upon the testimony of Prophet and Herbert, witnesses for the
General Counsel. Allen was not a witness. On the other hand , Piper testified that he
remembered having talked with Prophet and Herbert but that be could not recall whether
he had talked with them together or separately, or whether Allen had been present.
Piper testified also that his conversations with all his subordinates were as recited in
footnotes 6 and 7, and that he also told Herbert and other "colored boys that" the Re-
spondent "didn't discriminate against colored people" but that he did not "know how the
union will be, whether they [the Union] discriminate against them [Negroes] or not."
9 Chaumond testified , and Piper denied , that Piper inquired what Chaumond thought of
the Union, to which Chaumond replied that he had never belonged to a labor organiza-
tion, and Piper then said that Chaumond did not "want a goddamn Dago to tell" Chaumond
"what to do." Having concluded that Piper asked a number of employees what they
thought of the Union, I credit Chaumond's testimony that Piper asked him too With-
out evaluating the conflicting testimony concerning the profane reference to someone's
ancestry or nationality, it suffices to say that the subject of Piper's alleged remark is not
identified and, assuming the subject's connection with the Union, the remark, if made,
was not an unfair labor practice. It was, at most, a profane and disparaging, but non-
coercive, reference to a union representative Turning to Piper's conversation with Beck,
the latter testified that Piper said to him that (1) when the "union business was settled,"
Piper would try to have Beck transferred to field work, and (2) Piper had recommended
him for a raise in pay of 10 cents "but that the union had held it up " On cross-
examination, however, Beck testified that Piper did not tell him the basis of the recom-
mendation, or when or to whom Piper had made it, and that Piper's explanation of the
Union's having "held it up" was that there would not be a raise until the representation
matter was settled. On the other hand, Piper denied that he spoke to Beck of having
recommended Beck for a raise, and Piper also testified 'that, upon Beck's request for a
field job, Piper had replied that "when a man was qualified we would be more than glad
to put him on field work " Insofar as appears, Beck, who resigned his employment about
June 1962, did not receive a raise It is unnecessary to resolve the conflicts in Piper's
and Beck's testimony Assuming arguendo the accuracy of Beck's version, Piper's remarks
amounted to no more than statements that (1) a raise could not be granted during the
pendency of the representation question, and (2) after settlement of that question Piper
would recommend that Beck be transferred to field work. In my judgment, neither state-
ment was coercive nor constituted a promise of betterment if Beck would vote against
the Union in the election.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language" he explained to each employee the benefits which the employees received
by working for the Respondent, and that he said to them that they did not need
the Union, that he would appreciate their not voting for it, that the election would
be secret, and that they could vote their consciences. Four employees testified
concerning Conner's remarks to them, but the conversations with only two, Spainn
and Prophet, need be discussed. The question is whether Conner's remarks were
coercive in certain respects. Before the interviews occurred, the employees knew
that the Respondent planned to terminate its operations in Baton Rouge and New
Orleans by consolidating those operations in a new place of business in the town
of Reserve, about midway between those cities. During the interview of Spainn, a
Negro, Conner asked if a representative of the Union had called at Spainn's home,
and said that the Union discriminated against Negroes and that it would replace
the colored employees with whites if it were successful in the election. Conner said
also that he was "betting on you . . . colored boys to keep it [the union] out" and
that when operations were commenced in Reserve the employees would be furnished
regular transportation from their residences in Baton Rouge .1° In talking with
Prophet, a Negro, Conner asked him to vote against the Union, saying inter alia that
"you have a working committee, and you give your grievances to them and the man-
agement works them out"; that "some type of transportation" to Reserve would be
provided by the Respondent; and that, if the Union should win the election, the
Union was "going to start replacing you boys" and "there's nothing that the manage-
ment, we, or none of us, can do . about it." 11
I find that, by the following conduct, the Respondent violated Section 8(a)(1):
Clift's and Conner's inquiries of Spainn concerning whether representatives of the
Union had visited Spainn's home; Clift's inquiry of Spainn as to how he intended
to vote; Piper's statement to Hutchinson that the Respondent "had gotten rid of
instigators" of organizational activity in 1961 and probably would do so again; and
Piper's inquiries of Spainn, Eubanks, England, Prophet, Herbert, Allen, and Chau-
mond concerning what they thought of the Union. Turning to Conner's statements
to employees that the Respondent would furnish transportation to Reserve, I find
that such statements also violated Section 8(a)(1). It would not be a violation
of the Act for the Respondent to furnish such transportation, and if the Respondent
had decided in advance of the organizational activity to do so, and had made prompt
announcement of its decision, I would regard Conner's statements as having been
protected by Section 8(c), that is, a recitation of one of the various benefits already
established for employees. But, as we have seen, such decision had not been reached
and announced by the Respondent. Because Conner's statements about transporta-
tion were made while he sought to induce employees to vote against the Union, I
regard the statements as promises of benefits to induce employees so to vote.
We consider next three types of statements to Negroes concerning racial discrimina-
tion: (1) Conner's statement to Spainn that the union discriminates against Negroes;
10 The findings concerning Conner's remarks to Spainn are based upon the latter's testi-
mony On the other hand , Conner denied that he questioned any employee concerning
the employee' s union membership , activities, "desires," or "feelings " With respect to his
remarks concerning the replacement of Negroes by whites, Conner acknowledged that be
discussed the subject, and at first he testified that "many" of the Negroes had come to him
because they had not been contacted by organizers for the Union and they were con-
cerned about possible discrimination against them by the Union. On cross-examination,
Conner reduced the number of Negroes who had come to him from "many" to "several,"
and he named only two, neither of whom was a witness. It well may be that two or more
employees had raised the subject of racial discrimination in conversations with Conner;
the record does not disclose that any Negroes were contacted by the Union and it does
disclose that some were not contacted. The fact remains, however, that the interviews of
employees with which we are now concerned were initiated by Conner, and thus are differ-
ent occasions. Conner testified that in talking with Spainn he said that it "would cer-
tainly come to pass" that if the Union should win the election "the colored boys would
be laid off and white people would take over their jobs " With respect to the transporta-
tion of employees from their homes in Baton Rouge to the consolidated operations in
Reserve Conner testified that in his conversation with Spainn the "move to Reserve"
was discussed, that neither then nor subsequently at the time of the hearing had the
Respondent decided what it would do about transportation, but that the Respondent
"has . . . said that it would be worked out."
u These findings are based upon Prophet's testimony. Conner testified that he talked
with Prophet, but he was not asked to detail the particular conversation It is reasonable
to conclude that Conner, in explaining to employees the benefits offered by the Respondent
and why he did not thinik that the Union was needed , spoke with favor of the Committee.
BOYCE MACHINERY CORPORATION 763
(2) Conner's and Piper's statements to employees that, if the Union should win the
election, the Union would replace the Negroes with whites; and (3) Conner's state-
ment to Prophet that there was nothing which management could do to prevent the
replacements. The record contains insufficient evidence for findings concerning the
Union's racial practices, and I do not know whether those practices are discrimina-
tory or nondiscriminatory.12 Therefore, the issues are decided in the light most
favorable to the Respondent, i.e., on the assumption that its accusations respecting
the Union were well-founded in the Union's conduct elsewhere in Baton Rouge.
Each of the three enumerated types of statements contains an unqualified assertion
that the Union's racial practices constitute a threat to the Negro employees. State-
ment 1 was not a violation of the Act, however. This is so because a truthful "relevant
campaign statement is [not] to be condemned because it may have racial overtones,"
and "no one would suggest that Negro employees were not entitled to know that
the union which seeks to represent them practices racial discrimination"; Sewell
Manufacturing Company, 138 NLRB 66. But statements 2 and 3 are on another
footing. There is in them the additional threat that, if the Union should win the
election , the Respondent would yield to demands which it predicts that the Union
will make upon it concerning replacement of Negroes. It is one thing for an employer
to make well-founded assertions that a labor organizations' racial practices constitute
a threat to employees of a particular race. It is quite another thing for the employer,
having made such assertions to employees, to impress upon them that it will or may
become a party to the labor organization's predicted threat by yielding its right to
hire, discharge, or replace employees. In statements 2 and 3, the Respondent
threatened the Negroes that their job tenure depended upon rejection of the Union
in the election. Statements 2 and 3 were, therefore, violative of Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the
operations of the Respondent 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act. Because the Respondent has
dominated and interfered with the administration of the Committee and has con-
tributed support thereto, I shall recommend that the Respondent cease and desist
from such conduct and that it withdraw recognition from and completely disestablish
the Committee as the representative of any of the Respondent's employees for the
purpose of dealing with the Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of work.
Upon the basis of the above findings of fact , and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Union and the Committee are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By interfering with , restraining, and coercing employees in the exercise of their
rights under the Act, and by dominating and interfering with the administration of the
Committee, and contributing support thereto, the Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and (2) and Section 2 (6) and (7).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I recommend that the Respondent, Boyce Ma-
chinery Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Dominating or interfering with the administration of Employees Committee,
or with the formation or administration of any other labor organization of its em-
12I should think that a labor organization in the construction industry, as the Union
is, would have had occasion to express in writing its compliance or noncompliance with
pertinent provisions of Execeutive Order 10925 of March 0, 1901
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, and contributing support to the Committee or to any other labor organization
of its employees.
(b) Recognizing or in any manner dealing with Employees Committee, or any re-
organization or successor thereof, as a representative of any of its employees for the
purpose of dealing with the Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of work.
(c) Promising benefits to employees if they should vote against a labor organiza-
tion in an election.
(d) Interrogating and threatening employees concerning union activities.
(e) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Withdraw all recognition from Employees Committee as a representative of
any of its employees for the purpose of dealing with the Respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or other conditions
of work, and completely disestablish the Committee as such representative.
(b) Post at all its places of business, copies of the attached notice marked "Ap-
pendix." 13 Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by the Respondent's representative,
be posted by it immediately upon receipt thereof, and be maintained by it for at least
60 consecutive days thereafter, in conspicuous places, including all places where no-
tices to employees customarily are posted. Reasonable steps shall be taken by the Re-
spondent to ensure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
this Intermediate Report, what steps the Respondent has taken to comply herewith.14
"If this Recommended Order should be adopted by the Board, the words "As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice In
the fui+ther event that the Board's Order be enforced by a United States Court of Appeals,
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order of" shall be inserted immediately following "As Ordered by "
i4 If this Recommended Order should be adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, 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
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE HAVE notified the members of the Employees Committee that they may no
longer act as your representatives on grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of work, and WE HAVE completely
disestablished the Employees Committee as such representative.
WE WILL NOT promise benefits to you to induce you to vote against a union in
an election.
WE WILL NOT threaten you or question you about union membership or
activities.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice and to engage in union
activities, or not to join a union and to refrain from such activities.
BOYCE MACHINERY CORPORATION,
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 the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions, they may communicate with the Board's
Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Or-
leans , Louisiana, Telephone No. 529-2411.