Craddock-Terry Shoe Corp.

National Labor Relations Board - Board Decisions

Mar 16, 1949

82 N.L.R.B. 161 (N.L.R.B. 1949)

In the Matter of CRADDOCE-TERRY SHOE CORPORATION, EMPLOYER and
UNITED SHOE WORKERS OP AMERICA , CIO, PETITIONER
Case No. 5-RC-14&-Decided March 16,1949
DECISION
AND
ORDER
Pursuant to a Stipulation for Certification upon Consent Election,
an election was held at the Employer's Farmville, Virginia, plant on
July 1, 1948, which the Petitioner lost. Thereafter on July 9, 1948,
the Petitioner filed a letter in the nature of objections to conduct affect-
ing the results of the election.,, On the basis of these objections, the
Regional Director conducted an investigation, and on August 13, 1948,
issued his Report on Objections, in which he recommended that the
election be set aside. On August 20, 1948, the Employer filed its ex-
ceptions to the Regional Director's Report on Objections. In these
circumstances, and because the Report on Objections was based on con-
flicting testimony, presenting questions of credibility which could best
be resolved by observation of the witnesses, the Board directed a hear-
ing, and ordered the hearing officer to prepare a report containing find-
ings of fact and recommendations to the Board as to the disposition
of the objections.
The hearing was held on October 21 and 22,1948, at Farmville, Vir-
ginia. On December 16,1948, Hearing Officer William T. Little issued
his Report on Objections to Election, a copy of which is attached
hereto, in which he recommended that the election be set aside. There-
after, on December 23, 1948, the Employer filed exceptions to the hear-
ing officer's Report on Objections to Election.
The Board has reviewed the rulings made by the hearing officer at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Report on
Objections to Election, the exceptions filed by the Employer, and
' For the reasons stated by the hearing officer, we agree that July 9, 1948 , was the last
day on which it was timely to file objections . As to the Employer 's contention that the
Petitioner's objections could not have been received by the Regional Director before July 10,
1948 , the record shows that the Petitioner 's objections were in fact received by the Regional
Director on July 9, 1948.
82 N. L. R. B., No. 13.
161
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record of the case, and hereby adopts the hearing officer's
findings 2 and recommendations to the extent that they are consistent
with this Decision and Order.
The hearing officer found that, by certain statements and conduct,
the Employer interfered with the free choice of the employees at the
election. We agree with this conclusion. We limit the grounds for
our finding, however, to the following statements and conduct, set
forth more fully in the copy of the hearing officer's report attached
hereto: (a) Foreman Vanderpool's interrogation of employees Fin-
chum, Overton, and Barry as to how they intended to vote in the
pending election; (b) Foreman Foster's interrogation of employee
Yeatts as to whether she belonged to the Union, and as to how she and
other employees intended to vote in the election; (c) Foreman Vander-
pool's statements to employees Finchum and Barry that the plant
would close if the Union won; his interrogation of Finchum as to
whether she had attended Union meetings ; and his request to Finchum
that she persuade her nephew, employee Green, to vote against the
Union, and that she tell Green that he would be discharged, if the
opportunity arose, should he vote for the Union; (d) Foreman Van-
derpool's indication to employee Overton that the plant would be
closed should the Petitioner win the election; 3 and (e) the accelera-
tion by the Employer of the date for the distribution of vacation pay
checks so as to put these checks in the hands of the employees 2 days
earlier than usual, with the new distribution date falling on the day
before, rather than the day after the election.
The Employer contends in its exceptions that the remarks of Fore-
men Vanderpool and Foster are protected as free speech. However,
it is established Board doctrine that acts of interrogation such as
those herein, and threats of economic reprisal if a union should win or
if an employee should vote for a union, exceed the bounds of mere
comment and persuasion. Indeed we have consistently held them to
3 The Employer excepts to the hearing officer 's statement that his findings of fact are
based, except as otherwise noted, on admitted or undenied testimony . It is clear that the
hearing officer meant that his findings were based on uncontradicted testimony , except as
otherwise noted. The record shows that the foremen involved in the acts of interrogation
did not testify, with the exception of Foreman Vanderpool, whose testimony the hearing
officer did not credit . Therefore , we accept , as above modified , the hearing officer 's findings,
which are not affected by this inadvertence.
s As part of the settlement agreement pursuant to which the election herein was held,
the Employer posted a notice stating it would not interfere with the right of its employees
to organize We do not believe that this notice negates the coercive effect of the conduct
set forth above. Nor does the fact that this conduct involved only a few supervisors in
conversation with about five employees in all, affect its coercive character , or render the
remarks too remotely coercive to be of consequence . We believe that the remarks were more
than mere isolated events and had a decided impact upon the employees ' freedom of choice
in the election.
CRADDOCK-TERRY SHOE CORPORATION 163
per se violative of the Act in unfair labor practice proceedings 4 Ac-
cordingly, we find no merit in this contention.
Nor do we find anything in our decision in Matter of Craddock-
Terry Shoe Corporation, 80 N. L. R. B. 1239, involving an election
at the Employer's Lynchburg, Virginia, plant which militates against
our conclusions herein. In that case, with Chairman Herzog and
Member Gray dissenting, we overruled the Employer's objections to an
election which the Petitioner won, and certified the Petitioner, in the
face of a contention that statements made by the Petitioner constituted
misrepresentations to the employees. In so doing, we pointed out
that such statements, even granting their inaccuracy, were not coercive
and therefore did not have a material impact on the election. The
situation in the instant case is clearly distinguishable; the coercive
nature of the Employer's conduct is patent. In sum , the standards
we apply are identical, but the critical difference in the facts requires
the different result which we reach here.
The Employer excepts to any consideration of the vacation pay
issue on the ground that the matter was not raised in the Petitioner's
,objections. The vacation pay issue was first raised in the Regional
Director's Report on Objections. The Employer was, therefore, on
notice that the matter would be considered, but nevertheless refused to
litigate the issue, even though specifically informed that litigation on
the merits would not be regarded as a waiver of its procedural objec-
tions. Under these circumstances, and for the reasons set forth by
the hearing officer, we find no merit in the Employer's exception to our
consideration of this issue.
The Employer also excepts to the finding on the vacation issue on
the merits. It argues that the distribution of the vacation pay checks
on the day before the July 1 election had no effect on the employees'
votes, because all employees knew in advance that the plant would be
closed on July 3, that they would get vacation checks, and the amount
of their vacation pay. The record discloses that in all former years
the Employer had issued to each employee, on the last pay day before
the plant closed for vacation, a single check which included both time
worked during that week and vacation pay. In 1948, the day after
the election, viz, July 2, was the last pay day before the plant closed
for vacation. But on June 30, the day before the election, the foremen,
rather than the usual paymaster, distributed checks for vacation pay
only ; while the pay for time worked during the week was distributed
separately on the day after the election, the regularly scheduled pay
* See Matter of Artcraft Hosiery Company , 78 N. L. R. B. 333 ; Matter of Wytheville
Knitting Mills, 78 N L R. B. 640, and cf. Matter of General Shoe Corporation, 77
N. L. R. B. 742.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day. And, as found by the hearing officer, the Employer made certain
that employees Margaret Sears and James Dunkum received their
vacation checks before they voted. The Employer did not offer any
explanation for adopting, in this one year, a more cumbersome practice
than the previous one.
The Employer seeks to minimize the effect of the acceleration of
vacation payments by pointing to the knowledge of the employees of
the amount of their vacation checks and their awareness that the plant
was to be closed down on July 3. However, we fail to perceive how
these factors minimize the interference inherent in the Employer's
act of putting these checks in the hands of the employees 2 days earlier,
and on the eve of the election. For, apart from the question of the
good faith of the Employer in acting as it did, the departure from a
procedure which had been followed for 7 years tended, in our opinion,
to demonstrate forcibly to the employees that vacation benefits and the
like were at stake in the election. As we have pointed out in unfair
labor practice proceedings, the vice in such cases does not lie in the
mere announcement or granting of such benefit, but in the calculated
timing of the announcement under circumstances which would have
but one effect, that of inducing the employees to refrain from organiza-
tional activities .5 In adverting to this principle, in Matter of
Hudson Hosiery Company, supra, we said :
It is fundamental that the Act precludes employers from utiliz-
ing their economic power in any manner for the purpose of dis-
couraging their employees from becoming or remaining members
of a labor organization, or of interfering with their selection of
bargaining representatives. By this we do not mean that an em-
ployer is foreclosed from announcing or granting economic bene-
fits during a union's organizational campaign or during the
pendency of a Board-ordered election. What is unlawful under
the Act is the employer's granting or announcing such benefits
(although previously determined upon bona fide) for the purpose
of causing the employees to accept or reject a representative for
collective bargaining. (Emphasis in original.)
We therefore concur in the hearing officer's finding that, by issuing
vacation checks on the day before the election, the Employer inter-
fered with and restrained its employees in their choice of a bargaining
representative .6
6 Matter of Electric City Dyeing Co., 79 N. L. R. B. 872; Matter of Hudson Hosiery
Company, 72 N L. R. B. 1434; Matter of National Carbon Company, Inc., 65 N. L. R. B. 830.
° Member Gray does not concur in this finding, on the facts in this case, particularly
in view of the fact that the employees knew, for some time prior to the election, that
they would receive this vacation pay early in July, the exact amounts of such payments,
and that in making such payments the Employer was merely following a prior practice.
He would set the election aside solely on the basis of the interrrogation and threats set
forth above.
CRADDOCK-TERRY SHOE CORPORATION 165
Accordingly, because the election of July 1, 1948, did not reflect the
employees' free choice of a bargaining representative, we shall sustain
the Petitioner's objections to the election, and shall set the election
aside. When the Regional Director advises the Board that the cir-
cumstances permit the free choice of a bargaining representative, we
shall direct that a new election be held among the employees of the
Employer's Farmville, Virginia, plant.
ORDER
IT IS HEREBY ORDERED that the election held on July 1, 1948, among
the employees of the Craddock-Terry Shoe Corporation, Farmville,
Virginia, be, and it hereby is, set aside.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order.
HEARING OFFICER'S REPORT ON OBJECTIONS TO ELECTION
Messrs. Victor Hirshfteld of Washington, D. C. and Alexander McKay of Lynch-
burg, Va., for the Union.
Brooks, McLendon, Brim and Holderness, by Mr. Thornton H. Brooks of
Greensboro, N. C., for the Company.
On May 26, 1948 United Shoe Workers of America, CIO, herein called the
Union, filed with the Regional Director of the National Labor Relations Board
for the Fifth Region (Baltimore, Maryland), herein called the Regional Director,
a petition alleging that a question affecting commerce had arisen concerning the
representation of employees of the Farmville, Virginia plant of Craddock-Terry
Shoe Corporation, herein called the Company, and requesting an investigation
and certification of representatives, pursuant to Section 9 (c) of the National
Labor Relations Act, as amended. On June 21, 1948, the Company and the
Union entered into a STIPULATION FOR CERTIFICATION UPON CONSENT
ELECTION. On July 1, 1948, an election was conducted in the above matter
in accordance with the Stipulation and the Board's Rules and Regulations, and
on the same day a Tally of Ballots was furnished the parties by the Regional
Director.
The Tally shows that, of the 205 eligible voters, 190 cast ballots, of which 51
were in favor of the Union, 133 were against the Union, and 6 were challenged.
On July 9, 1948, the Union filed with the Regional Director Objections to the
Conduct of the Election, which requested that the election be set aside on the
ground that the Company: (1) had threatened employees that they would lose
their jobs if they voted for the Union; (2) had threatened employees that the
Farmville plant would be closed down and the work would be sent to other plants
if the Union won the election; (3) had denied a discharged employee, who had
been reemployed pursuant to a settlement agreement with the Union, reinstate-
ment to his former position, and assigned him onerous and disagreeable duties
for the purpose of discouraging employees from voting for the Union; (4) had
required employees to attend its meetings on Company time and property, while
denying the Union a similar opportunity to address employees; and (5) had, by
838914-50-vol. 82-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these and other acts, reduced the Union's adherents from a majority of 150 out
of 200 employees to a minority of 51 out of 184.'
On August 13, 1948, the Regional Director, following investigation, issued a
report on the Union's Objections to Election, reporting that the Union's Ob-
jections raised substantial and material issues with respect to the conduct of the
election, and recommending that the results of the election be set aside and a new
election be directed. On August 20, 1948, the Company filed Exceptions to the
Regional Director's Report. On September 17, 1948, it appearing to the Board
that the Union's Objections raised substantial and material issues, the Board
ordered that a hearing be held on such Objections before a Hearing Officer.
Pursuant to notice, a hearing was held on October 21, and 22, 1948, at Farmville,
Virginia, before William T. Little, Hearing Officer, at which the Company and
the Union appeared and participated. The Company, thereafter, filed a brief
with the undersigned. Upon the entire record in the case and from his observa-
tion of witnesses, the undersigned makes the following:
FINDINGS OF FACT'
A. Background
The Union commenced its current organizational drive among the Company's
Farmville employees in September 1947. Theretofore the Union had been
certified as the representative of the Company's Lynchburg and Farmville em-
ployees in 1944 and 1946 respectively,' but contract negotiations had been termi-
nated prior to the Union's current organizational drive. On or about May 26,
1948, the Company and the Union reached an agreement for the disposition of
charges of unfair labor practices growing out of the Union's current and past
organizational activities. Under the agreement, the Union was to request the
withdrawal of charges it had filed in connection with the present organizational
drive, and the Company and the Union were to jointly request the Board to with-
draw its petition to the Circuit Court of Appeals for enforcement of its order
based on findings that following the certification of the Union as the representa-
tive of the Company's Lynchburg employees in 1944, the Company had refused
1 The Company contends that the Union's Objections were not timely filed within five
days of service of the Tally of Ballots, as required by the Board's Rules and Regulations,
and therefore should be dismissed . The Tally of Ballots was served on the parties on
July 1, 1948, and the Union filed its Objections on July 9, 1948 In view of the fact
that under Section 203 86 of the Board's Rules and Regulations, the date of service of
the Tally of Ballots and the holidays Saturday, July 3, Sunday, July 4, and Monday, July 5,
when the Board 's offices were closed in celebration of Independence Day, are not to be
computed in determining the duration of the Objection period, Matter of Lafayette National
Bank, 77 N. L R. B. 1210, the Union's Objections were timely filed on the fifth day of
the objection period as prescribed by the Board 's Rules and Regulations . The Company
further contends that the Union's Objections were not in such form as to meet the
standards prescribed by the Board and the Administrative Procedure Act. Not only do
the Union's Objections, as set forth above, sufficiently state the nature of the Union's
claim, but the Regional Director's Report on Objections, which was served on the Com-
pany more than two months in advance of the bearing , sets forth in detail the evidence
supporting the Union ' s contentions . In the light of these facts , the undersigned finds no
merit in the Company's contention. See Matter of General Motors Corp, 46 N. L. R. B.
574, 583 n. 18 ; Matter of Reliance Mfg. Co , 67 N L R. B. 515, 519, n. 3.
2 Except as otherwise specifically noted, the findings of fact hereinafter set forth are based
on admitted or undenied testimony.
3 Matters of Craddock -Terry Shoe Corporation, Case No 5-C-2087, 73 N . L. R. B. 1339,
1349-1350 ; Case No 5-R-1991, 64 N . L. R. B. 1176.
CRADDOCK-TERRY SHOE CORPORATION 167
to bargain with the Union and bargained directly with the employees in viola-
tion of Section 8 (1) and (5) of the Act. The Company, in turn, agreed that it
would ( 1) immediately reinstate Ernest J. Sears and four other named employees
to their former or substantial equivalent positions; (2) pay the sum of $300 in
settlement of back pay claims; (3) post notices stating that it would comply
with Section 8 (a) (1) and (3) of the Act, as amended; and (4) consent to
separate elections to be conducted among its Farmville and Lynchburg employees
on July 1, 1948 to determine whether or not they wanted to be represented by
the Union. The present proceeding concerns the Union's objections to the
conduct of the Company and its supervisory personnel following the settlement
agreement and prior to the election of July 1, 1948.
B. The pre-election conduct of the company
On or about June 12, 1948, Foreman Roy Vanderpool, in a conversation with
employee Arthur Barry, asked Barry how he was going to vote in the election and
stated to Barry that if the Union won the election, the Company would transfer
the work presently being performed at Farmville to another of the Company's
plants and close down the Farmville plant, but that if the Union lost the election,
there would be plenty of work at the Farmville plant as a result of a new
government contract that the Company had obtained. At the time of the con-
versation, the employees of the Farmville plant were working part time as
it result of a shortage of work.
Throughout the month of June 1948, Foreman Vanderpool engaged Helen
Finchum, an employee in his department, in repeated conversations about the
Union. During the course of these conversations Vanderpool promised that
if the Union lost the election, the employees who were then working part time
would be restored to full time employment. In a conversation with Finchum on
June 25, less than a week before the election, Vanderpool asked Finchum how
she and her nephew, Herbert Green, were going to vote in the election. When
she replied that she did not know how Green was going to vote, Vanderpool
stated that he was afraid that Green was going to vote for the Union and asked
Finchum to attempt to persuade Green to "vote for the Company," stating that
although he had overlooked an opportunity to discharge Green in the past, he
would discharge him if he had another opportunity, if Green did not listen to
reason about the election. Finchum subsequently communicated Vanderpool's
remarks to Green. On June 30, the day before the election, Vanderpool asked
Finchum if she had been attending Union meetings and inquired how her husband
intended to vote in the election. He further stated that the Lynchburg employees
were going to vote against the Union in their election and threatened that the
Company would not allow anyone to tell it how to operate its business, but
would close its plant and transfer the work of the Farmville plant to Lynchburg
if the Farmville employees voted for the Union."
4In answer to a question which incorrectly stated her previous testimony , Finchum
appeared to testify that Vanderpool told her that if the plant closed down the employees
would not draw unemployment compensation and that they had better think that over
before they voted . However, in the light of Finchum ' s testimony as a whole , the under-
signed finds that Finchum , in this testimony , was referring to a statement of Vanderpool
that if the employees struck they would not draw unemployment compensation and that
Vanderpool did not state that if the plant closed down the employees would not draw
unemployment compensation.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In like vein, Foreman Vanderpool- interrogated employee James Overton how
he intended to vote in the elections When Overton replied that he was opposed
to the Union , Vanderpool remarked that work was going to pick up . On another
occasion , Overton inquired of Vanderpool what would happen if the Union won
the election . Vanderpool replied , "If you had a business of your own and some-`
body else came and started telling you how to run it , what would happen?" When
Overton replied, "I would close down," Vanderpool walked away. In view of
the prevalence of rumors in the plant that if the Union won the election the
plant would close down ( infra ), the existence of which was admittedly known
to Vanderpool, the suggestive nature of Vanderpool's query of Overton of what
Overton would do if someone tried to tell him how to run his business, and in the
light of Overton's expressed reply that if similarly situated he would close his
plant, as well as Vanderpool's conduct in terminating the conversation without
denying the inference of reprisal Overton drew from his remarks, the under-
signed finds that by his reply to Overton's question, Vanderpool intended to and
did in fact convey to Overton that the Company would close its Farmville plant
if the Union won the election.
Similarly, Foreman Harold Foster asked employee Lula Yeatts if she belonged
to the Union and how she intended to vote, and which employees were going
to vote for the Union and which employees were going to vote against the
Union in the election. In another conversation Foreman Foster told Yeatts
that the plant might close down if the Union won the election. Similarly,
Foreman Holmes interrogated employee Ira McAllister about his attitude toward
the Union and on one occasion stated to McAllister that he did not think that the
Company would ever recognize the Union'
6 Overton, a Union witness , who plainly manifested his hostility to the Union's case
testified , "He (Vanderpool ) never came out in person and asked me how I was going to,
vote. . . . He didn 't ask how I was going to vote. He asked me how did I stand . . .
[in connection with] how I would vote, and I told him I was going to vote for Craddock
Terry. . . . He asked me how I was standing . He didn't come out and ask me how I
was going to vote ( emphasis supplied )." Although evasive, contrary to the Company's
contentions , Overton's testimony is not confused , but in its entirety , clearly indicates that
Vanderpool interrogated Overton concerning his voting intentions in the election.
G Except for the statements attributed to Foreman Vanderpool , the remarks attributed
to the Company's foremen are based on the undenied testimony of the employees to whom
the remarks were addressed , which the undersigned credits. The findings set forth above
concerning the activities of Vanderpool are based on the testimony of employees Finchum,
Overton and Barry. Based on her demeanor on the witness stand , the undersigned found
Finchum to be an impressive and credible witness. On the witness stand, Overton clearly
demonstrated his hostility to the Union 's case and the undersigned unquestionably credits
the remarks he attributed to Vanderpool . Although , as the Company points out in its
brief, on one occaasion in the early portion of his testimony , Barry gave the appearance of
having memorized the conversation with Vanderpool to which he testified, the undersigned'
does not attribute this fact to any lack of veracity, but rather to the apprehensiveness of a
prospective witness unaccustomed to appearing in legal proceedings . On cross examination,
Barry repeated his version of the conversation naturally and spontaneously , and his testi•
mony when viewed in its entirety and contrasted to Vanderpool 's unsatisfactory denials,
carried conviction to the undersigned . Vanderpool 's demeanor on the witness stand did
not import credence to his testimony . This observation of the undersigned was further
confined by the fact that although he was present in the hearing room and heard the
precise nature of Overton 's testimony , Vanderpool not only denied that he had inter-
rogated Overton about his voting intentions , but testified that he had never spoken to
Overton about the Union . In the light of Overton 's open hostility to the Union, Vander-
pool 's denial is utterly incredible and seriously impairs his similar denials of the testimony
of Finchum and Barry . For the reasons set forth above, the undersigned credits the-
testimony of Finchum , Overton and Barry and discredits the denials of Vanderpool.
CRADDOCK-TERRY SHOE CORPORATION 169
In addition to the remarks of the foreman set forth above, there existed in
the plant throughout the pre-election period a persistent and widely circulated
rumor 7 that if the Union won the election the plant would close down, and that
if the Union lost the election the amount of work available to the employees
would increase. Among the employees, the rumor was generally attributed to
Foreman Vanderpool. When the rumor was brought to the attention of the
Company's foreman, they took no steps to repudiate it. Thus Foreman Vander-
pool admitted hearing the rumor discussed among his employees on a number
of occasions but testified that he "let them use their own opinion about it" and
said nothing. Similarly, when Richard Carwile, having heard the rumor, in-
quired of his foreman, C. E. Redmond, "If the Union wins the election, will the
plant close down," Redmond replied, "I don't know what they might do."
Throughout the month preceding the election, the Company addressed to its
employees a series of circulars and letters. In its letter of June 11, 1948, the
Company stated :
You and I have been together a long time at Craddock-Terry. I don't
think you believe that it is worth while to swap something that you have
now, something that is backed up by the policies of your company, for
promises made by a union professional promise maker.
Let us go back a few years and see what the Company did.
August 4, 1941 5% general increase.
December 1, 1941 One week's vacation with pay .. .
May 4, 1942 5% general increase.
May 10, 1943 5% general increase.
1944 to August 1945 Union came in. No increased wages, no in-
creased benefits.
August 1945 Union out.
Since November 1945 you have received :
Increases amounting to 321/2%.
Minimum wage increases to 650 per hour.
4 paid holidays.
2 weeks' vacation with pay... .
D
That is a good record and I am proud of it. This record, however, is
only consistent with the Company's policy to pay wages and give benefits
that are as high or higher than those paid by the Company's competitors.
Believe me, don't be fooled by union talk. The Union cannot make jobs
for anyone, except possibly the Union organizers. Business makes jobs,
business pays wages-not the unions.
It is my honest belief that under a union contract, we would not be able
to maintain the past standard and conditions of employment that have
made our Company a good place to work. [Emphasis in original.]
Similarly, in its circular, "How About the Record, McKay," the Company stated:
So in the three years your union has been out, Craddock-Terry workers
received general wage increases totaling 331/ %, plus increased holidays
and vacation benefits.
4 The existence of the rumor was testified to by employees Carwile, Anderson and
Dunkum and Foreman Vanderpool , all of whom worked in different departments.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That's a swell record compared to yours !-McKay.
Especially when we compare it with the period from August 14, 1944
to August 14, 1945 when your union represented the employees. During
that time your union accomplished nothing, but it did collect dues, didn't it,
McKay?
Elsewhere in its correspondence, the Company argued that it was against the
employees' interest to vote for the Union and pointed out that when the Union
was not in the plant, the Company had voluntarily conferred upon the employees
a large number of benefits including contributions to the employees' credit
association, preferential employment of Virginia employees during the depression,
paid vacations and holidays , general wage increases and increased minimum
wages. Nowhere in its correspondence did the Company state that it would
continue to be as favorably disposed to grant concessions to the employees if
they voted for the Union as it had in the past when they were unorganized.
In the light of this fact, and the statement in the letter of June 11, that the
Company had annually awarded 5% general increases prior to the advent of
the Union, but had stopped when the Union came into the plant and promptly
resumed when the Union left, the undersigned finds that by emphasizing the
concessions it had granted in the absence of the Union, and the fact that the
Union had been unable to obtain concessions from it in the past, the Company
suggested to the employees that it would grant improved wages and working
conditions more readily to its unorganized employees than it would grant such
concessions to the Union.'
Since 1940, the Company has granted paid vacations to its employees. Vaca-
tions are customarily paid to all eligible employees at the same time. During
the entire period the vacation plan has been in existence, it was the Company's
practice to include the employee's vacation pay in his regular weekly pay check
and pay both the regular weekly pay and vacation pay on the regular pay day,
which in 1948 fell on July 2, the day after the election. Contrary to its past
practice , in 1948 the Company paid the employees their vacation pay on June 30,
the day before the election, while paying them their weekly earnings on the regular
pay day, July 2. When Margaret Sears, an eligible voter who was not working
during the period immediately before the election , came to the plant to vote on
July 1, in order to enable Foreman Foster to deliver her vacation check to
Mrs. Sears before she voted , Superintendent Allen issued instructions that
"before she went to vote, to be sure and to go up to see Mr. Harold Foster her
foreman." When she did so Foster delivered her vacation pay check to her.
Similarly, on June 30, Foreman Fulcher instructed employee James Dunkum
not to leave the plant at his then customary quitting time of 12 noon, but to
work until 2:00 p . in. When Dunkum , having finished work at 2:00 p. in.,
requested permission to leave , Fulcher instructed him to wait a few minutes more
before going home . After a short delay , Fulcher handed Dunkum his vacation
check. The Company offered no explanation for keeping Dunkum after his then
normal quitting time or asking him to remain after 2: 00 p . in. In view of this
fact , and the Company 's insistence , in Mrs. Sears' case, that she obtain her
vacation check before voting, the undersigned finds that Fulcher insisted that
Dunkum remain after his normal quitting time for the purpose of delivering
his vacation check before he voted.
In the light of the facts set forth above, it was incumbent on the Company
to come forward with an explanation of why it departed from its long established
i See Peter J. Schweitzer, Inc. v. N. L. R. B., 144 F. (2d) 520 (App. D. C.).
CRADDOCK-TERRY SHOE CORPORATION 171
vacation pay policy the day before the election. The Company offered no such
explanation. In view of this fact and the Company's insistence that Dunkum
and Mrs. Sears received their vacation check before they voted in the election,
the undersigned finds that the Company paid its employees their vacation pay
the day before the election instead of on July 2 for the purpose of influencing
their vote in the election!
C. The Re-employment of Ernest J. Sears
Ernest J. Sears was first employed by the Company in July 1947 as a pullover
machine operator and was discharged from that position in February 1948.
Although the settlement agreement of May 26, 1948 provided that Sears would
be reinstated to his former or a substantially equivalent position, the Company
and the Union contemporaneously agreed that if no opening was available in his
former position, Sears would be temporarily employed in another position paying
comparable wages until an opening became available. On June 21, 1948, Sears
was re-employed as a last cleaner at the same rate of pay he was receiving at
the time of his discharge. At that time the Company's operations were slack
and the plant was operating on a part-time basis, and Superintendent Allen told
Sears that his assignment to the job of last cleaner was temporary until such
time as an opening became available in his former position. After some protest,
Sears agreed to accept work as a last cleaner until work increased "if it would
make everything run smoother." Although on several subsequent occasions
Sears requested reinstatement to his former position, he never was reinstated to
the job of pullover machine operator.
Since the job of last cleaner does not have the same opportunity for advance-
ment as the job of pullover machine operator 10 and in view of the less agreeable
working conditions of the last cleaner's job, as set forth below, the undersigned
finds that the last cleaner's job is not the substantial equivalent of Sears' former
position.
However, in view of the agreement that Sears might be temporarily assigned
to other work, the undersigned finds that the assignment of Sears to the last
cleaner's job for the period between June 21 and July 1, did not constitute a
breach of the settlement agreement upon which the election was based u
Similarly, the record does not support the Union's allegation that Sears "was
isolated in the cellar . . . [and] assigned to one of the dirtiest jobs there .. .
to turn the voters against the Union." The Company regularly uses its basement
as a place of work and the basement of the plant houses the factory office and
stock room as well as a number of production workers. Although the work of
*Although the Issue of the Company's method of vacation pay was not raised in the
Union's Objections, the issue was raised in the Regional Director's Report on Objections,
which was served on the Company over two months prior to the hearing. At the hearing,
the Company objected that since the issue was not raised in the Union's Objections it could
not be litigated in the present proceeding. The undersigned finds this contention of the
Company to be without merit. Matter of The Fisher Chair Co., 71 N. L. R. B. 806 n. 1, see
also Matter of General Motors Corp ., 46 N. L. R. B. 574 , 583, n . 18; Matter of Reliance
Mfg. Co., 67 N. L. R. B. 515, 519 n. 3.
10 The undersigned credits Sears' undenied testimony that as a pullover machine oper-
ator, his wages would increase as he gained additional experience until he was earning
between $1.00 and $1.05 per hour, whereas his earnings as a last cleaner were permanently
fixed at 961/2 cents per hour.
11 Whether the Company's subsequent conduct in refusing to reinstate Sears to his former
position after the election, when the amount of available work increased , constituted a
breach of the settlement agreement is outside the issues of this proceeding.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
removing dirt and dust from lasts by its very nature is a "dirtier job" than Sears'
former position of machine operator, nothing in the record indicates that the
last cleaner's job was oppressively dirty or was one of the dirtiest jobs in the
plant. Similarly, although there are not many employees working in the cellar
as there were on the third floor of the plant, where Sears formerly worked, as
previously noted, other production employees worked in the plant basement and
one worked in the immediate vicinity of Sears. Although Sears testified that
when he was re-employed, Superintendent Allen told him he did not want him
"running through the plant" and that he assumed, without asking, that Allen
intended that he should not leave his place of work in the basement to converse
with fellow employees during lunch hour, Sears' interpretation of Allen's in-
structions so as to include lunch hour as well as work time activities does not
appear reasonable and the undersigned cannot infer from Allen's instructions an
intention that Sears should not leave the basement during non-working hours.
Insofar as Allen's instructions pertained to working time, they are neither un-
reasonable nor punitive.
There is no evidence that the work of cleaning lasts was made more onerous
or disagreeable after Sears was assigned to it. Since all the objections that the
Union expressed to Sears' duties after he was reinstated are inherent in the
nature of the job of last cleaner, and since, as previously found, under the terms
of the settlement agreement, the Company was privileged to assign Sears to that
position, the record does not support the inference that Sears was assigned
onerous duties for the purpose of "turning voters against the Union."
D. Conclusions
The Company is clearly responsible for the acts and statements of its foremen,
who admittedly have power to hire and discharge, or effectively recommend such
action. The fact that the foremen acted contrary to instructions which had
never been communicated to the employees and the fact that pursuant to the
terms of the settlement agreement, the Company posted a notice stating that it
would comply with Section 8 (a) (1) and (3) of the Act, as amended, is im-
material."
The rumors that the plant would close down if the Union won the election
and that work would increase if it lost, are a reasonably foreseeable consequence
of the threats and promises of Foremen Vanderpool and Foster. Not only did
they correctly quote the threats and promises that Vanderpool and Foster were
currently making, but they were attributed by the employees who circulated
them to statements of Foreman Vanderpool and the record shows that in at
least one instance the employee who circulated the rumor that the plant would
close down, Arthur Barry, did so on the basis of Foreman Vanderpool's threat
to him. In the light of these facts and the fact that when the rumors were
brought to the attention of the Company's foremen , they failed to repudiate them,
the rumors that circulated throughout the plant to the effect that the plant
would either close down or increase operations, depending on whether the Union
won or lost the election, are attributable to the conduct of the Company' s foremen.
32 Matter of The Murray Corp ., 49 N. L. R. B. 1225 ; Matter of Wadesboro Hosiery Mills,
72 N. L . It. B. 1064. Particularly is this so in view of the fact that on June 11, 1948, the
Union brought Vanderpool 's activities to the Company's attention and the Company there-
after failed to comply with the Union's request that it advise the employees that Vander-
pool 's threat that the plant would close down was false.
CRADDOCK-TERRY SHOE CORPORATION 173
Although several of the Union 's witnesses testified that their vote in the elec-
tion was not influenced by the threats and promises of the foremen , as the Board
stated in Matter of The Pure Oil Co ., 73 N. L. R. B. 1, 3:
We do not . . . consider . . . that an examination of the subjective state
of mind of employees , exposed both before and after an election to employer
conduct of a kind which tends to coerce employees ... provides a proper
test of fairness of an election .. .
Moreover , nothing in the testimony of these Union witnesses that "they were im-
pervious to the threats and promises of their foremen rebuts the inference that
the foremen 's threats and promises had their normal coercive effect when com-
municated throughout the entire plant through the instrumentality of the plant-
wide rumor discussed above.
The undersigned finds that ( 1) the Company's use of the vacation pay as a
means of inducing employees to vote against the Union ; ( 2) the threats and
promises contained in the Company 's letters to the effect that it would afford
its unorganized employees better wages, hours and working conditions than it
would afford the Union ; ( 3) Foremen Vanderpool , Foster and Holmes ' repeated
interrogation of employees concerning their own and other employees' Union
sympathies and voting intentions ; ( 4) Foreman Vanderpool 's threat to dis-
charge Green if he voted for the Union ; ( 5) Foremen Vanderpool and Foster's
threats that the plant would close down if the Union won the election ; ( 6) Fore-
man Vanderpool 's promises of additional work if the Union lost ; and (7)
Foreman Holmes ' threat that the Company would never recognize the Union,
accentuated as they were by the widespread rumors described above engendered
a situation in which it was impossible to obtain a free expression of the em-
ployees' desires in the election of July 1, 1948.
RECOMMENDATION
The Undersigned therefore recommends that the results of the election of
July 1, 1948 , be set aside and that a new election be ordered by the Board.
WILLIAM T . Lrrris
Dated December 16, 1948.