Conroe Creosoting Co.

National Labor Relations Board - Board Decisions

Nov 30, 1964

149 N.L.R.B. 1174 (N.L.R.B. 1964)

1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conroe Creosoting Company and International Woodworkers of
America, AFL-CIO-CLC
International Woodworkers of America , AFL-CIO-CLC and
Conroe Creosoting Company. Cases Nos. 23-CA-1614, 03-RC-
2079, and 23-CB-505. November 30, 1964
DECISION AND ORDER
On February 20, 1964, Trial Examiner Eugene F. Frey issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent Union 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 Decision. He further found that the Respondent
Employer had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such allegations be
dismissed . He also recommended that the objections to conduct
affecting results of election, filed by Respondent Union, be overruled.
Thereafter, the General Counsel filed limited exceptions in Case No.'
23-CA-1614. The Respondent Employer filed an answering brief to
General Counsel's exceptions and cross-exceptions to the Trial Exam-
iner's Decision.
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 [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions, cross-exceptions, brief and answering brief,
and the entire record, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner with the following
modifications.2
In Case No. 23-CA-1614, the Respondent Employer and the Union
signed a settlement agreement on June 14, 1963, which was approved
by the Regional Director, providing for posting of a notice advising
employees that the Respondent Employer would not threaten
1 In absence of exceptions thereto , we adopt pro forma the Trial Examiner 's findings
with respect to Cases Nos. 23-CB -505 and 23-RC-2079.
2 We find it unnecessary to make any finding on the April 29 speech delivered by Mrs.
Hawthorne as it occurred before the settlement agreement was executed in this ease and
we are finding that there was no violation of the Act following the settlement agreement
In this connection, the record discloses similarities between the April and July speeches,
as found by the Trial Examiner , but it also indicates significant differences , and we find
nothing threatening in the July speeches on the basis of their content as specifically testi-
fied to at the hearing.
149 NLRB No. 116.
CONROE CREOSOTING COMPANY 1175
employees with discontinuance or reduction of company benefits or
discontinuance or leasing out of any operations, because of the
employees' union activities. Respondent posted such notice on June 22,
1963, at its plant in terms and at places directed by the Regional
Director and on August 21, 1964, certified to that officer that the
notice had been properly posted for 60 days. On September 6, 1963,
the Regional Director entered an order setting aside said agreement
and withdrawing his approval thereof on the grounds that the
Respondent's activities in July 1963, which were litigated in the
instant proceeding, violated the agreement. Because, as noted in our
affirmance of the Trial Examiner's Decision, we fund that the
Respondent did not violate the Act subsequent to the settlement
agreement , we shall reinstate the settlement agreement without
passing upon the conduct that occurred prior thereto.
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 Respondent Inter-
national Woodworkers of America, AFL-CIO-CIC, its officers,
agents, representatives, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
IT IS HEREBY rURTHE, R ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges unfair labor practices based on the
charge in Case No. 23-CA-1614, and that the settlement agreement in
Case No. 23-CA-1614 be, and it hereby is, reinstated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues in this case are as follows:
(1) In Case No. 23-CA-1614 whether Conroe Creosoting Company (herein called
the Employer ) has coerced employees by threats of discharge and other reprisals for
adherence to or continued support of International Woodworkers of America, AFL-
CIO-CLC ( herein called the Union) in violation of a settlement agreement made
between the Employer and the Union in Case No . 23-CA-1614 , and in violation of
Section 8 ( a)(1) of the National Labor Relations Act, as amended , 29 U.S C. 151,
et seq. ( herein called the Act) .
(2) In Case No. 23-RC-2079, whether speeches by the Employer' s president on
July 23 and 25, 1963, and a letter given to employees and remarks by Respondent's
agents to them on July 26, shortly before the election of that date , and other specified
conduct of the Employer and certain townspeople , interfered with the election such
as to warrant the Board in setting it aside.
(3) In Case No . 23-CB-505, whether the Union, by its agent on various dates in
May 1963, coerced employees by various threats in violation of Section 8 (b) (1) (A)
of the Act
These issues arise ( 1) in Case No. 23-CA-1614 on a complaint issued September 12,
1963, by the Regional Director for Region 23 after investigation by the Board of
charges filed by the Union on May 9 and September 9, 1963, and answer of Employer
thereto; ( 2) in Case No . 23-RC-2079 on objections to the election filed by the Union
on August 1, 1963, and ( 3) in Case No . 23-CB-505, on a complaint issued by said
Regional Director on September 23, 1963, after investigation of a charge filed by the
Employer on September 10, 1963. All cases were consolidated by order of the
Regional Director issued September 23, 1963.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held on the issues before Trial Examiner Eugene
F. Frey at Conroe, Texas, on October 31 and November 1, 1963, in which all parties
were represented and participated through counsel and other representatives, and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
adduce pertinent evidence on the issues, to make oral argument, and to file written
briefs. All parties waived oral argument, but General Counsel and the Employer have
filed written briefs which have been carefully considered. Decision was reserved on
the Employer's motions at the close of testimony to dismiss the complaint in Case No.
23-CA-1614 and overrule the objections in Case No. 23-RC-2079, and those motions
are disposed of by the findings, conclusions, and recommendations in this Decision.
On December 11, 1963, counsel for General Counsel moved on notice to all parties
to dismiss paragraph 7(f) of the complaint in Case No. 23-CA-1614 for lack of
proof. That paragraph had alleged that the Employer, through Supervisor Broadnax,
had threatened an employee on or about April 30, 1963, with discharge or other
reprisal for continued membership in or support of the Union. There being no
objection raised, that motion is hereby granted
Upon the entire iecord in the case, and from my observation of witnesses on the
stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Texas corporation having its principal office and a manufacturing
plant at Conroe, Texas, where it is engaged in the business of treating posts, poles, and
pilings with creosote. In the 12 months preceding September 1963, the Employer sold
and shipped products valued at more than $50,000 directly from its Conroe plant to
points qutside Texas. I find that the Employer is and at all material times herein has
been engaged in commerce within the meaning of Section 2(6) and (7) of the Act
It. THE LABOR OGANIZATION
The above Union is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Case No. 23-CB-505
The Motion for Summary Judgment
The complaint in this case, together with an order issued September 23, 1963, con-
solidating it with the complaint in Case No. 23-RC-1614 and objections to election
in Case No. 23-RC-2079, and setting the consolidated cases down for hearing on
September 26, 1963, at Conroe, Texas, was duly served on the Union on September 25,
1963. The order advised the Union that under Sections 102 20 and 102.21, Board
Rules and Regulations, Series 8, as amended, the Union must file its answer to the
complaint with the Regional Director within 10 days from service thereof, and that,
unless it did so, all allegations in the complaint "shall be deemed to be admitted to be
true and may be so found by the Board." The Union not having filed an answer
within the time fixed by the Rules and the notice, General Counsel at the hearing
moved for summary judgment under Board Rule 102.20. In opposition, the Union
argued that, while Howard S Gardiner, its representative at the hearing, had received
a copy of the complaint personally from counsel for General Counsel on September 23
or 24, he put it in his briefcase and did not consider it important enough to read or to
answer it at the time, and it was "treated very lightly" because counsel for General
Counsel at the time had indicated that a letter previously sent by the Union to the
Regional Director in effect denying the allegations of the complaint would be suffi-
cient, and the hearing set for September 26 was adjourned, hence Gardiner went to
another State on union business and did not return to his Memphis office until about
October 14 when he saw the copy of the complaint served by registered mail on the
Union on September 25. On September 20, 1963, after discussion with counsel for
General Counsel about the charge in Case No 23-CB-505, the Union had notified
the Regional Director by telegram that it "waived the ten-day answer period" in the
Board Rule and requested the Board to "expedite this matter and others relating to"
the Employer and the Union, the purpose of that message being to enable the hearing
on all cases to proceed on September 26. At one point, the Union also claimed the
failure to file an answer was an "accident," and that it would have been done if
Gardiner had been in his office when the complaint was received. There is no claim
or proof offered by the Union that the Union's informal letter denying the allegations
of the complaint was served on other parties, or that it ever formally requested any
CONROE CREOSOTING COMPANY 1177
extension of time within which to file answer; nor did it offer to file answer at the
hearing. At one point the Union offered to prove that counsel for General Counsel on
September 24 in effect waived the answer requirement by indicating that the informal
letter was sufficient, but I denied this offer as the Union admitted elsewhere that
General Counsel had never waived the requirements of Rule 102 20. It is clear from
these facts that the Union and its agent had full knowledge of the complaint from the
date of its service, the necessity of filing an answer within 10 days, and the penalty
for failure to do so, but chose for its own reasons to ignore the rule and not file
answer. No credible reason is offered why Gardiner, the agent who received the com-
plaint even before his office got it, could not have arranged by telephone or telegram
for his Memphis office or union counsel to prepare and file answer in time. Hence, I
granted the motion because the Union had not shown good cause to the contrary. It
is well settled that the Board Rule as to this procedure is a legal requirement which
must be obeyed, and which cannot be waived except for good cause shown. A party
who has the benefit of Board process and its rules and is properly served with Board
process, as here, should not be permitted to use or ignore such process and Board
Rules relating thereto at its whim or caprice. See Liquid Carbonic Corporation, 116
NLRB 795, 796, 797.
Having granted the motion for summary judgment, the allegations of the complaint
are to be taken as true, and I find on the basis thereof that:
The Union, by its officer and agent, Homer Hartzog, regional organizer, threatened
employees of the Employer on or about May 6, 7, 12, 13, and 19, 1963, that they
would be discharged from the Employer if they failed to sign union cards, or to join
the Union, and that if there was a layoff, the employees who did not join the Union
would be laid off. By these acts the Union did restrain and coerce, and has continued
to coerce and restrain, employees of the Employer in the exercise of their rights
guaranteed by Section 7 of the Act, and did thereby engage in and is engaging in unfair
labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and
2(6) and (7) of the Act.
B. Case No. 23-CA-1614
1. The Union campaign
At the times mentioned hereafter, Mrs. H. M. (Charline) Hawthorne was president
of the Employer, J. A. Ramey was plant manager, L. R. Spencer its plant superin-
tendent, and George P. Broadnax assistant plant superintendent at its Conroe plant
I find that each of these individuals was an agent of the Employer and a supervisor
within the meaning of Section 2 (11) of the Act.
The Union began an organizing campaign among employees of the Conroe plant
in or about March 1963, holding meetings for employees in and around Conroe and
soliciting them to sign union authorization cards. The Union filed a petition for an
election in Case No. 23-RC-2079 on May 15, 1963, and pursuant to the Regional
Director's Decision and Direction of Election of July 5, a secret-ballot election was
held under Board supervision at the plant on July 26, which the Union lost On
August 1, 1963, the Union filed timely objections to the election, on which the
Regional Director ordered a hearing which was consolidated with the issues in the
CA and CB cases for hearing as found above.
On June 14, 1963, Respondent and the Union signed a settlement agreement which
was approved June 17 by the Regional Director, providing for posting of a notice
advising employees that Respondent would not threaten employees with discontinu-
ance or reduction of company benefits or discontinuance or leasing out of any opera-V
tions, because of the employees' union activities Respondent posted such notice on
June 22, 1963, at its plant in terms and at places directed by the Regional Director and
on August 21, 1963, certified to that officer that the notice had been properly posted for
60 days. On September 6, 1963, the Regional Director entered an order setting aside
said settlement agreement and withdrawing his approval thereof, on the theory that
Respondent's activities in July noted below violated the agreement
2 Employer reaction to the campaign
Sometime after the campaign started, the Employer made known to the employees
that it was antiunion, and in various ways gave them reasons why they should vote
against it in the election. On an unidentified date in March or April, Supervisor
Broadnax told employee Tom Brown about some union men he had known who had
gone on strike and asked Brown to remember that when he voted, to vote against the
Union. Superintendent Spencer spoke to Brown in the same vein at a later date. On
July 22, Broadnax showed four employees a sample ballot and said, "We want 4 `no'
votes." On an unidentified date Spencer told two employees, "The only way you can
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hurt me is to vote for the Union." I find nothing coercive in these remarks of Spencer
and Broadnax.1
On April 29, 1963, at 1 p in. President Hawthorne called the employees together in
the yard and made a speech. She said she had found out the employees were trying
to get a union, and that she had just returned from an industry meeting in Cincinnati
where a man had asked her if her employees were unionized, and she had told him
they were not, that a union had tried to organize them about 11 years before, but the
effort "fell flat." She said she told him that one reason why she felt her employees
were not in a union was that they enjoyed a great many fringe benefits which she did
not think were available to workers under union contracts, and (speaking directly to
the employees) "you get your pay even if it rains, that you get overtime pay almost
every week when business is good, and that it makes us happy to see that your checks
are fatter." She said she told the man that the Company gives a discretionary bonus
at Christmas when it does well in any year, and she asked the employees, "I remember
the first year we were able to double your Christmas bonus, do you?" She then said
she told the man that years ago she boirowed money to pay a bonus, although the
Company had lost money, because she felt the men had been doing the best they
knew how to do, and that as long as she could "keep my head above water" she wanted
to show them her personal interest in their welfare. She said she also told the man
that the Company provided additional benefits for its employees, that the Employer
had a lake stocked with fish so that the employees could fish when they wanted to,
that about the only time it was ever closed "to you" was when the Company was
entertaining customers. She said she also told him that she frequently loaned her own
money to employees when they had pressing need for additional funds.
She said she told him that "our" Company did not clock a man out and send him
home after a certain job has finished, but made every effort to assure the employees
of steady employment, and that the only time it had ever sent anyone home was the
time it had snowed so badly, when the men wanted to go home, and "we were all
afraid for your safety." She indicated the Employer did this "despite the fact that
our operations might be made more efficient, that by buying crossarm blanks ready
for treating, by contracting out our maintenance work and trucking, we could actually
save money." She said she told him that "presently companies were offering us
machine-peeled poles at prices that it might be smarter for us to buy than the rough
peeled ( ones )." At this point, she reminded the men, "I have bought a few as you
know but only when the pole machine was swamped; I was thinking about your jobs."
She then said she told the man that "although these efficiencies have been considered
by the company for some time and that certain outside contractors have constantly
urged me to contract out such work, we felt a loyalty to our employees to try to pro-
vide them with full and eteady employment just as long as we could continue to make
a legitimate profit." She said she told him she thought "we had the best drivers in
the country, they represented our company after our products left here, that though it
might save us money by leasing trucks and cutting down on the number of drivers,"
she would not do it "as our men were loyal to the Company, so we were loyal to them."
She then told the workers, "Now, after I come home from Cincinnati, I have heard
some rumors that a few of you may be dissatisfied with the working conditions and
fringe betnefits. These benefits which I have mentioned are but a few of the company
benefits that you enjoy-I have not mentioned yet vacations and holidays." She
finally said to the workers, "Let me just tell you that I've read a few union contracts
in my day, and I want you to know I have never seen a union contract which includes
such things as personal loans and a lake stocked with fish. I doubt there is a union
contract in America which guarantees the right to borrow money from the employer
and a place to fish and picnic. These are fringe benefits given to you without a union;
these are discretionary management prerogatives that unions cannot get for you. I'd
like to say that these benefits are benefits that your Company has provided for you
because we feel that you deserve them I personally think these is no union in the
world that can get you these benefits. Think over what I have said today. Thanks for
listening." 2
i These facts are found on credited testimony of Bobby Dean Goosby and Lionel
J eltei son
2I find this speech on the basis of credible testimony of Mrs Hawthorne, and notes from
which she spoke at the time, as corroborated by testimony of Jeff Scott, Jr., Bennie
Bryant, and Broadnax Her testimony is also corroborated in part by admissions of vari-
ous witnesses of General Counsel who, for the most part, recalled only fragments of her
talk which, if considered out of context, would appear to be blunt threats I do not credit
their tragnientary recollections in this respect, for they appeared to be clearly self-
serving conclusions of those witnesses from partial recollections of the whole talk: Some
of them admitted they did not pay much attention to what she said.
CONROE CREOSOTING COMPANY 1179
General Counsel's argument that the April 29 speech contained coercive threats is
based on testimony of certain witnesses who testified to alleged statements by Mrs.
Hawthorne that she could discontinue certain benefits and operations.3 However,
none of them credibly placed the words "if the Union came into the plant" or similar
expressions in her mouth as part of or in close relation to the alleged statement of
possibility of the discontinuances; while Goosby testified that she mentioned that the
employees "might get a union or might not, and if we did, she would cut out the pole-
peeling, cross-arm department, loaning money" and "quit letting us fish out there," his
testimony is not credible because he admits he did not pay much attention to what she
said, he was standing at the outer edge of the crowd about 70 to 80 feet away, and he
could not recall anything else that was said. His manner of testimony and demeanor
convinces me that he was stating only his present conclusions as to what she said, not
all the facts of the speech; and he admitted that the speech did not make him fearful.
While Jefferson placed the discontinuances and advent of the Union in a single capsule
of speech, I am convinced from his testimony and demeanor on the stand that he was
merely parroting on both direct and cross-examination a previously memorized set of
remarks designed to appear as blunt and coercive threats; he could not recall anything
else that was said; his credibility is further weakened by his vacillating and self-
contradictory testimony. Hence, I have not credited these witnesses, or Drummond,
as against the clear testimony of Mrs. Hawthorne which is supported by some admis-
sions of Drummond and credible testimony of other employees
Examining the April 29 speech as a whole, particularly the remarks about discon-
tinuance of departments or operations or benefits in their context, as I am required to
do by Board precedents,4 I am satisfied that Mrs. Hawthorne throughout the speech
(1) detailed the many benefits which the Employer had over the years given the
employees without a union, expressing the opinion that some benefits were not the
type which labor organizations sought for employees or put in their contracts, (2) and
stressed the continual efforts the Employer had made to provide steady work for
employees at all times and in all operations, even to the extent of rejecting outside
suggestions that it might operate more profitably by cutting down the work force and
contracting out some operations, such as trucking, and buying some materials already
partly processed. The leasing of trucks and purchase of already peeled poles for
treating was not something brand new, such that the Employer's sudden mention of the
possibility and financial advantage of such steps to employees during the union cam-
paign might be a shock causing them to fear for their jobs and thus giving rise to
coercive implications, for they had long been aware of the Employer's practice of
buying peeled poles and leasing extra trucks from time to time, when business require-
ments dictated that course. Since they already knew about this customary practice,
Mrs Hawthorne's statements that she had in the past resisted suggestions for subcon-
tracting out the pole-peeling, out of regard for the employees' welfare, would be more
likely to emphasize the security of their jobs than connote a coercive threat to discon-
tinue these operations at their expense if they chose the Union. The same is true of
her stated rejection of the truck-leasing idea because she felt the drivers were an
important factor in the Company's public relations with customers. On the alleged
truck-leasing threat, General Counsel also cites vague testimony of driver Tom Brown
to the effect that once in June Superintendent Spencer talked to him about some man
buying the Employer's trucks and leasing them back to it; while Brown was apparently
concerned at the time about the effect of that on his job, he admits the discussion was
not serious, but "kidding," and that he had misunderstood what was said when he made
a statement on the subject to General Counsel. In any event, a lease-back arrange-
ment, without detailed facts of its exact operation, could not per se indicate a loss of
jobs by drivers. Hence, I do not find the Brown-Spencer talk coercive, or indicative
of any coercive implications in the April 29 remarks of Mrs Hawthorne on that
subject. I hereby grant the Employer's motion to dismiss paragraph 7(e) of the
complaint.
I conclude that Mrs. Hawthorne's remarks were legitimate, noncoercive statements
of aspects of the employees' present status without a union which they could weigh
against any offer or promises made by the Union. They contained no clear or reason-
ably implied warning that what the employees now had in benefits or employment
status would be withdrawn if the Union won, or denied during future collective bar-
gaining (which was not even discussed during the speech).
3 Bobby Dean Goosby, Lionel Jefferson, and Lonnie C Drummond.
4 Arch Beverage Corporation, 140 NLRB 1385, Oak Manufacturing Company, 141 NLRB
1323, footnote 6, The Lord Baltimore Press, 142 NLRB 328.
5 The facts as to past practice in buying peeled poles and leasing some trucks, and em-
ployee knowledge thereof, are based on credited testimony of Mrs Hawthorne and Ramey,
as corroborated by admissions of Goosby and Jefferson.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I note that at the end of the speech Mrs. Hawthorne stated her opinion that personal
loans and fishing privileges were probably not in union contracts , and were "fringe
benefits given to you without a union-discretionary management prerogatives that
unions cannot get for you ," and which were "provided for you because we feel you
deserve them ," but neither General Counsel nor the Union contend that these con-
cluding remarks were direct or implied threats that such benefits would be withdrawn
if the Union came into the plant, or cite any authorities in support of such conclusion.G
The whole thrust of her speech was that in her opinion their existed benefits were such
that they could hardly expect to gain more than they already had through a union, so
there would be little or no advantage in joining the Union. From the whole context
of the speech I am unable to conclude that it was reasonably calculated to create in
employees' minds the fear that any or all of the existing benefits would be withdrawn
and never granted again during collective bargaining , or that employees would lose
their jobs if the employees voted in the Union. Hence , I conclude and find that the
April 29 speech considered as a whole falls short of coercion or restraint of employees
in violation of Section 8 (a) (1) of the Act . I grant the Employer 's motion to dismiss
as to paragraphs 7(a) and ( c) of the complaint , and recommend that the Board enter
its order to that effect.
The Events of July 23 Through 26
Sometime before the above dates, employee Bennie Bryant heard talk among
employees in the yard that if the Union came into the plant, and the men did not join
it in 90 days, they would be laid off and have no jobs. This bothered him, so he went
to the office and asked Mrs. Hawthorne about it. She replied that she would make a
speech about it.7 '
On July 23, 1963 , the Employer posted notices in the plant inviting all employees to
an "important" meeting to be held after work at 5:10 p m. at the pole machine shed,
stating "attendance is voluntary " and that Mrs . Hawthorne "will have some very
interesting comments about the election to be held here Friday." On advice of
counsel, the Employer had Supervisors Spencer and Ramey stand at the timeclock that
afternoon to make sure that employees punched out before going to the meeting, and
as employees came to the timeclock , Spencer told all to "hit the clock," then told some
to go "over there," indicating the shed, and others that Mrs. Hawthorne "wants to see
you all in the shed ," or "would like to see you." All employees to whom he spoke
obeyed; although they all knew the meeting had been announced as voluntary and
some had eailier decided not to attend , the latter changed their minds after Spencer's
suggestions ; one (Woodworth ) replied to Spencer in jest that he wanted to go home,
and Spencer told him in like manner "go on over there, then we will all go home "
However, some workers opeiating a treating machine which ran on a 24 -hour sched-
ule, did not attend, nor others who had punched out at I p m , nor did the truckdrivers,
who had already received ballots in the mail and had been told by the Employer they
need not attend.
In the meeting, Mrs . Hawthorne told the men about the Texas right-to-work law,
stating that no one had to join the Union, and if they signed union cards , or the Union
won the election , they still did not have to join it or pay union dues . She disparaged
the Union , saying it was a "wood -head" union , which wanted nothing but the dues
and fines they could get from the employees , and that it was like a "leech" which
would "get on" them and "stick " to them, they would find it hard to get rid of, and
that the union men would tell them they wanted dues for one purpose , but would use
them for other purposes . She said the Company could do as much for them as anybody
could, mentioning the same benefits she had discussed in her April speech, particularly
the fact that she made personal loans to employees to send their children to school,
buy cars , and pay taxes on their homes. She said that someone had mentioned that
some of the men could not read, so she reminded them they could count, that a "no"
had two letters in it, a "yes " had three , and she showed them the words on a sample
6 Neither General Counsel nor the Union contend that the grant of personal loans was
in any way improper , or that loans were withheld during the campaign for unlawful rea-
sons The record clearly shows that in the past Mrs Hawthorne granted or withheld
loans for a variety of legitimate business reasons , of which the employees were well aware,
and she continued the loan practice on this basis during the union campaign . Hence, the
mention of loans as one fringe benefit received without a union does not carry any coercive
implications The same is true of the mention of the fishing privileges
7 These facts are found on credited testimony of Bryant elicited by the Union. It is
inferrable that the talk heard by Bryant originated in the coercive remarks to the same
effect made by the union organizer to employees during May , as found above.
CONROE CREOSOTING COMPANY 1181
ballot. She said that the employees could vote as they pleased She also said she felt
that all "loyal workers would vote `no,' and those who were not loyal would vote
`yes,' " but assured them that if the union men went on strike, those who did not vote
for the Union.would continue to work. She also repeated substantially the same
remarks and arguments she had made in April, in order to impress on them that they
could get along better, and the plant would operate better, without a union. She also
said to them, "Think twice before you vote," and pointed to a sign put up in the yard
by the Employer which showed a man with a rope around his neck, with the slogan,
"Don't hang yourself with the Union, vote `no.' "
On July 23 the Employer mailed to all employees a letter detailing company benefits
to employees, raising questions about the Union's organization, motives, and handling
of employees' dues, emphasizing the amicable relations between Employer and
employees, and intimating that advent of the Union could change that relationship'
There is no allegation in the complaint that this letter violated the Act; General
Counsel relies on it only to show the Employer's emphasis on specific company bene-
fits, on the same date that Mrs Hawthorne is alleged to have threatened in a speech
to take away such benefits if the Union won the election. Employees got the letter on
the 24th, on which date the Union formally asked the Employer by letter for "equal
time under similar conditions" as the Employer's speech to employees on July 23
The Employer did not reply.
On July 25 the Employer posted another invitation to employees to a meeting that
evening, in the same terms as the notice of July 23, and when employees punched out
that evening, Spencer and Ramey made sure they clocked out and reminded and
admonished them to go to the meeting, in the same manner as on the 23d. About 16
or 17 men did not attend, including drivers and other plant operators; however, Mrs.
Hawthorne sent a foreman to bring 2 men who were still working at cleanup duties,
having them punch out about 15 minutes before their regular time; another employee
punched out, went home, and then returned to hear the last part of the speech Mrs.
Hawthorne gave substantially the same talk as she had on the 23d; in reciting the'
benefits given to the employees, she added that the Employer's certified public
accountant had figured out that these benefits cost it about 20 cents an hour.
On election day, July 26, the polls at the plant were open from 3 to 4 p in , and the
parties consumed about an hour after 4 p.m. in watching the ballot counting and
waiting for the results. Prior to the voting, the Employer gave all employees their
paychecks about 2.15 p in. (rather than 4 p.m., the customary quitting and payoff'
time) together with a letter reminding them that if they were union members, the
Union would take dues out of their pay monthly even though they might have to do
without something their families needed, and there would be other union charges and'
assessments, whether or not they could afford it, and that a "NO" vote meant no'
union dues, fees, or assessments to be paid. When some workers asked why they got'
paid early, supervisors told them it was because they would be tied up'in voting until
4 p.m.8
General Counsel claims the alleged threats made on April 29 were repeated, and the
violations of the Act continued in the July speeches. However, I have found that 'the'
April speech was not coercive, and as General Counsel admits that the pertinent
April remarks were more specific than those in July, that the earlier remarks were-
"by inference or direct statement alluded to" in July, I conclude and find that the July'
speeches were likewise noncoercive and legitimate exercise of free speech; and' not
violative of the Act. It follows that the settlement agreement of June 1963; was not'
violated by the July speeches. I grant the Employer's motion to dismiss paragraphs
7(b) and (d) and 9 of the complaint, and recommend that the complaint be dismissed
in that respect.° '
s The events of July 23, 24, 25, and 26 are found from documentary evidence, and
credited testimony of Mrs Hawthorne, Spencer, and various witnesses of General Counsel
Testimony of any of these witnesses in conflict therewith is not credited
ll It is true that the Employer posted signs with slogans which graphically described the
general disadvantages of joining the Union, and did other acts showing an aggressive
union animus and campaign, but there is no allegation or argument that such signs we're
coercive The waging of a deliberate antiunion campaign is legal , at most it requires
the trier of the facts to examine alleged coercive conduct and remarks carefully to ascer-
tain whether they violated the Act
While General Counsel alleged at the hearing that the July 23 propaganda letter was
violative of the Act, in his brief he only cites it to show that the Employer thereby
emphasized benefits it was giving to the employees, but this is legitimate free speech.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Objections to the Election
Objection No. 1 is that the Employer's speech of July 23 was made to a captive
audience after mail ballots had been sent out on July 17. As I have found that the
employees were advised that attendance would be voluntary, the speech was not made
on company time, and a substantial number of employees did not attend, and the
drivers were told not to attend since they had already received mail ballots, I find
that the speech was not made to a "captive" audience under circumstances which
rendered the mere giving of the speech coercive.10 Even if the audience had been a
"captive" one in that all employees were herded together on company time to hear
the speech, the Board has held that, in the absence of either an unlawful broad no-
solicitation rule or a privileged no-solicitation rule, there is no unfair labor practice if
an employer makes a noncoercive preelection speech on company time and premises
and denies a Union's request for an opportunity to reply. The May Company, 136
NLRB 797, 799, 800, citing Livingston Shirt Corporation, 107 NLRB 400. In addi-
tion , the giving of a noncoercive speech prior to the 24-hour period immediately
preceding the election on the employees' own time does not interfere with a free elec-
tion , under the Board ruling in Peerless Plywood Company, 107 NLRB 427, 429,
430, since the Union had ample time and opportunity to communicate with employees
in order to neutralize any impact on the speech on them.11 And since the speech was
not attended by drivers who had already received mail ballots, I cannot conclude that
it interfered with employees' rights of free choice in the election in that respect.12
I therefore recommend that objection No. 1 be overruled.
Objection No. 2 is that the speech given at 5:10 p in on July 25 to a captive
audience came within the 24-hour rule, and was thereby per se an interference with a
free election. As the employees gathered after working on this occasion under the
same circumstances as on the 23d, I must conclude that the giving of the speech was
not an unfair labor practice under the Act, and also that it did not interfere with a
free election because it did not occur on company time, did not include all employees,
and the Union had opportunity to counteract its impact, if any, by its final mass meet-
ing held that evening. Hence, the Peerless Plywood 24-hour rule does not apply. I
recommend that objection No. 2 be overruled.
Objection No. 3 is that the Employer's distribution of a propaganda leaflet to
employees with paychecks within an hour before the polls opened, which gave the
Union no chance to reply to it, interfered with the election. Since the leaflet was a
written communication, it appears that the Peerless Plywood 24-hour rule does not
apply, hence, I think the Employer had a right to distribute such written data right up
to the election.13 It appears that the Board would set aside an election on the basis
thereof only if -it contains a misrepresentation or other similar campaign trickery,
which involves a substantial departure from the truth, at a time which prevents the
Union from making an effective reply, so that the misrepresentation, whether deliber-
ate or not , may reasonably be expected to have a significant impact on the election.
See Hollywood Ceramics Company, Inc., 140 NLRB 221, 224. The Union does not
point out, or even intimate, wherein the leaflet of July 26 substantially misrepresents
the truth, or otherwise was calculated to trick or delude employees, and my own
examination of its terms does not show significant departure from the truth in its
emphasis on the well-known facts that unions , which operate mainly on dues,
assessments, fines, and other charges on members , can be expected to be and usually
10I do not credit subjective, speculative conclusions of one or two witnesses for General
Counsel that, after Spencer's admonitions , they felt they should go to the meeting, as
they might suffer some reprisal if they did not; there is no substantial proof of any con-
temporaneous or other remarks or conduct of the Employer in this period to support such
an inference.
n In this connection , Union Organizer Madden admitted , and I find, that during the
campaign the Union had Madden and two other paid organizers operating at the plant
and vicinity , assisted by various employees , and that throughout the campaign it held
meetings at least every 2 weeks in two public buildings in town, with a final large mass
meeting on the evening of July 25 , within the 24-hour period , and that it had oppor-
tunities to hold meetings with employees at other times and places as it desired.
= Cf. Oregon Washington Telephone Company, 123 NLRB 339.
13 The Board expressly excepted distribution of literature from the 24 -hour rule in
Peerless Plywood Company , 107 NLRB 407 , 430, and see Doughboy Plastic Productwn,
Inc., 122 NLRB 338. 341 . and The Mosier Safe Company, 129 NLRB 747, 749.
CONROE CREOSOTING COMPANY 1183
are diligent in collecting such moneys from employees who are members in return
for their efforts, however successful, to represent employees and gain added benefits
for them. I recommend that objection No. 3 be overruled.
Objection No. 4 is that the Employer, through supervisors "and others," coerced
employees by threats and otherwise on election day up to the time the polls opened.
The Union contends this is based on "orders" of Spencer and other superivsors to "go
and vote `no,' " made to workers when the paychecks and letters were handed out,
also on the fact that one employee was shown a ballot, and the impact of posters put
up by the Employer. I have found above that Supervisor Broadnax's request of one
employee early in the campaign to vote against the Union, his statement to four
employees on July 22 that "we want 4 `no' votes," when he displayed a sample ballot,
and Spencer's remarks to two employees that the only way they could hurt him was
to vote for the Union, were noncoercive and legitimate remarks. All were made
before July 26 and there is no substantial proof that similar remarks were made on
the 26th. I find nothing in these rather isolated expressions of hope (or even sugges-
tions) by supervisors which can reasonably be calculated to interfere with a free
election. The same is true of two posters put up by the Employer, one of which
showed a man with an ax and contained some antiunion slogan or remark not clear
from the record, and the other showing a man with a rope around his neck with the
admonition "Don't stick yourself with union dues, don't hang yourself with the
Union, vote `no' "; these appeared to be no more than legitimate, graphic types of
antiunion propaganda which contain nothing directly or impliedly coercive or calcu-
lated to affect the employees' free choice in the election. The Union cites no author-
ity to the contrary. I recommend that objection No. 4 be overruled.
In Objection No. 5 the Union claims that "other acts, including outside interference,
were company sponsored." On this point, employee Luther Woodworth testified
without contradiction that late in July he tried to get a personal loan from a local
finance company, where the proprietor said a man named Hughes had called him and
told him not to make the loan "on it because she was loaning-" and the proprietor
told Woodworth "the union is going on and he did not want to be involved"; how-
ever, Woodworth got the loan from the concern later. Hughes is not identified in the
record, there is no credible proof that he had any connection with the Employer, and
Mrs. Hawthorne testified credibly that she knew nothing about this rejection and she
had never talked to any finance company about loans to her employees. Employee
Tom Brown testified without contradiction that on an unidentified date he was visited
by a Mr. Reeves, a real estate man and local school board member, for whom he had
sold houses in the past, that Reeves talked about "different jobs," and then said he
knew nothing about the Union, "but all I know is you better be careful about it," and
that he had come to talk to Brown because he knew him; Reeves also mentioned that
the employees might set up their own union. The time of this talk is not placed by
Brown. Brown said at one point that Reeves also stated he came to talk to Brown
because he also knew Mrs. Hawthorne; on cross-examination, Brown denied that he
made the latter statement , and then states Reeves told him he had promised Mrs.
Hawthorne he would talk to Brown. Reeves did not testify to support Brown. Mrs.
Hawthorne categorically denied any talks with Reeves in more than a year. In all
this testimony, I find no substantial proof that the remarks of either the finance man
or Reeves were company-sponsored or approved, nor can I find that the remarks in
themselves contained any threat or other coercion, direct or implied, or any-other
form of interference which would tend to affect these employees in exercising their
voting right . Hence, I grant the Employer's motion to strike this testimony, and
recommend that objection No. 5 be overruled.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above , occurring in connection
with the operations of the Employer described in section I, above, have a close, inti-
mate , 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 thereof.
V. THE REMEDY
Having found that Respondent Union has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent Employer has not engaged in any unfair labor prac-
tices as alleged in the complaint , I shall recommend that the complaint in Case No.
23-CA- 1614 be dismissed in its entirety.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Union's objections to the election in Case No. 23-RC-2079
are without merit and should be overruled, I will recommend that the results of the
election of July 26, 1963, be certified.14
Upon the basis of the foregoing findings of fact and the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2 The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By threatening employees of the Employer with discharges or layoffs if they
failed to sign union cards or join the Union, Respondent Union has coerced and
restrained employees in the exercise of rights guaranteed by Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Sections 8 (b) (1) (A) and 2 (6) and (7) of the Act.
4. Respondent Employer has not engaged in any unfair labor practices as alleged
in the complaint in Case No. 23-CA-1614, nor has it engaged in any conduct inter-
fering with its employees' freedom of choice of bargaining representative in the
election of July 26, 1963, which would warrant the setting aside of that election.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact, conclusions of law, and the entire
record in the case, I recommend that International Woodworkers of America, AFL-
CIO-CLC, its officers, representatives, successors, and assigns, shall:
1. Cease and desist from threatening employees of Conroe Creosoting Company
with discharge or layoff from their jobs if they fail to sign union cards or join the
Union, or in any like or related manner restraining or coercing such employees in
the exercise of 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) Post at the Union's office in Memphis, Tennessee, and in any office or meeting
place maintained by or for it in Conroe, Texas, or vicinity, copies of the attached
notice marked "Appendix." 15 Copies of such notice, to be furnished by the
Regional Director for Region 23, shall, after being duly signed by the Union's author-
ized representative, be posted by it immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its members are customarily posted. Reasonable
steps shall be taken by the Union to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Promptly mail to said Regional Director signed copies of the above notice for
posting, if the Employer is willing, at the Employer's plant in Conroe, Texas.
(c) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps said Respondent has taken to comply herewith.16
I further recommend that the Union's objections to the election be overruled, and
that the results of the election of July 26, 1963, be certified by the Board, and that
the complaint in Case No. 23-CA-1614 be dismissed in its entirely.
14 In making this recommendation, I have also considered the unfair labor practices of
the Union during May 1963, but since they occurred outside the 30^day "critical period"
before the election, and there is no contention that they were calculated to interfere
with the election, and it appears that the Employer's remarks to employees on July 23
and 25 about their rights under the Texas right-to-work law were made in part to answer
the Union's threats, by reassuring employees of their rights protected by that law, it is
inferrable that any interference with employees' freedom of choice which might have
come from these threats were counteracted by the Employer's assurances found above.
16If 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. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
16 If this Recommended Order is 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."
THE POWERS REGULATOR COMPANY
APPENDIX
1185
NOTICE TO ALL MEMBERS OF INTERNATIONAL WOODWORKERS OF AMERICA,
AFL-CIO-CLC
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 Rela-
tions Act , as amended , we hereby notify our members that:
WE WILL NOT threaten employees of Conroe Creosoting Company with dis-
charge or layoff from their jobs with said Employer if they fail to sign union
cards or join our Union.
WE WILL NOT in any like or related manner restrain or coerce employees of
said Conroe Creosoting Company in the exercise of any of the rights guaranteed
to them by Section 7 of the Act.
INTERNATIONAL WOODWORKERS OF AMERICA , AFL-CIO-CLC,
Labor Organization.
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, 6617
Federal Office Building, 515 Rusk Avenue , Houston, Texas , Telephone No. Capitol
8-0611, Extension 271, if they have any question concerning this notice or com-
pliance with its provisions.
The Powers Regulator Company and United Steelworkers of
America, AFL-CIO, and Industrial Union Department, AFL-
CIO and Powers Employees Shop Union, Party to the Con-
tract. Case No. 13-CA-5859. November 30, 1964,
DECISION AND ORDER
On June 16, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Decision. He also
found that Respondent had not engaged in certain other alleged
unfair labor practices and recommended dismissal of these allega-
tions. General Counsel filed exceptions to the Decision and a sup-
porting brief. Respondent filed cross-exceptions, a brief in support
thereof, and an answer to the brief of General Counsel.
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
Jenkins] .
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 the case, including the Decision, the exceptions, the
149 NLRB No. 119.
770--076-65-vol. 149-76