Durango Boot

National Labor Relations Board - Board Decisions

Jan 17, 1980

247 N.L.R.B. 362 (N.L.R.B. 1980)

DURANGO BOOT
Durango Boot, a Division of U.S. Industries, Inc. and
Retail Clerks Union, Local 1557, United Food and
Commercial Workers International Union, AFL-
CIO.' Cases 26-CA-7362 and 26-RC-5805
January 17, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On October 4, 1979, Administrative Law Judge
Robert M. Schwarzbart issued the attached Decision
in this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3(e) and reletter the
succeeding paragraphs accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Duran-
go Boot, a Division of U.S. Industries, Inc., Franklin,
Tennessee, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraph (e) and reletter the succeeding
paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
The Charging Party's name, formerly Retail Clerks Union. Local 1557,
Retail Clerks International Union, AFL-CIO, has been changed in recogni-
tion of the June 7, 1979, merger between the Retail Clerks International
Union and the Amalgamated Meatcutters and Butcher Workmen of North
America.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). Furthermore, as Judge Learned
247 NLRB No. 46
IT IS FURTHER ORDERED that the election held in
Case 26-RC-5805 be, and it hereby is, set aside, and
that said case be, and it hereby is, remanded to the
Regional Director for Region 26 to conduct a new
election when he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
Hand observed in N.L.R.B. v. Universal Camera Corporation. 179 F.2d 749.
754 (2d Cir. 1950), "nothing is more common in all kinds of judicial decisions
than to believe some and not all" of a witness testimony. We have carefully
examined the record and find no basis for reversing his findings.
The Administrative Law Judge's inadvertent reference to "Martin" in the
final paragraph of his discussion of Respondent's unlawful preelection
promises of wage increases is hereby corrected to "Crockett."
' We do not adopt the Administrative Law Judge's finding that Plant
Superintendent Moss' statement regarding Perry's influence with other
employees created an impression of surveillance. According to Perry's
testimony, he was one of the first employees to join the union organizing
committee, his name appeared on the list sent by the Union to Respondent.
and he was asked by other employees to represent them at company
committee meetings because they believed that he would "stick up for [his]
rights." Since Perry's prounion sympathies were a matter of common
knowledge and he was aware that :.is views were known to others, we do not
believe that he could have reasonably assumed from Moss' statement that his
union activities were under surveillance See Aero Corporation. 237 NLRB 455
(1978).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which we were represented by our
attorneys and at which all sides presented evidence, it
has been found that we have violated the National
Labor Relations Act in certain respects. To correct
and remedy these violations, we have been directed to
take certain actions and to post this notice.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT summon prounion employees
and organizing committee members from their
work stations to attend special, private meetings
with management officials or supervisors, or meet
privately with such employees in their work
areas, to lecture such employees about their
rights under our rules concerning the organiza-
tional campaign conducted by Retail Clerks
Union, Local 1557, United Food and Commer-
cial Workers International Union, AFL-CIO.
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively and repeatedly inter-
rogate you with respect to your union member-
ship, activities, or sympathies, or those of other
employees.
WE WILL NOT threaten that you will be
deprived of employment if the above-named
Union is selected.
WE WILL NOT threaten that your selection of
the above-named Union, or any other labor
organization, as your bargaining representative
will result in a strike accompanied by union-
caused violence and hardship to yourselves and
your families.
WE WILL NOT solicit grievances from you or
offer to adjust them to induce you to abandon
your support of the above-named Union, or any
other labor organization.
WE WILL NOT promise to give you a new
pension program, possible future pay benefits, or
anything else of value, to induce you to stop
helping, stop supporting, or to not vote for the
above-named Union, or any other labor organiza-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the
National Labor Relations Act.
DURANGO BOOT, A DIVISION OF U.S.
INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law Judge:
These consolidated cases were heard on March 21, 22, and
23, 1979, in Franklin, Tennessee, and on April 24, 25, and
26, 1979, in Nashville, Tennessee.
The original and amended charges in Case 26-CA-7362
were filed on August 18 and 29, 1978,' respectively, by
Retail Clerks Union, Local 1557, Retail Clerks International
Union, AFL-CIO, herein the Union. The complaint, as
issued on September I and amended on October 5 and
February 26, 1979, respectively, alleges that Durango Boot,
a Division of U.S. Industries, Inc., herein Respondent,
variously violated Section 8(a)(1) of the National Labor
Relations Act, as amended, herein the Act.
All dates hereinafter are within 1978 unless otherwise specified.
'The appropriate collective-bargaining unit as set forth in the stipulation is:
All production and maintenance employees employed by the Respon-
dent at its Franklin, Tennessee, plant, excluding all office clerical
employees, professional employees, officers of the Company, guards and
supervisors, as defined in the Act.
' In Goodyear Tire and Rubber Company. 138 NLRB 453 (1962), the Board
defined the critical period before an election as the interval from the date of
the filing of this petition to the time of the election. Conduct occurring during
the period found to have interfered with the employees' freedom of choice at
the polls may be grounds for setting aside the election.
On June 30, 1978, the Union filed a petition for represen-
tation election in Case 26-RC-5805. Pursuant to a Stipula-
tion for Certification Upon Consent Election executed by the
parties and approved by the Regional Director on September
14, an election by secret ballot was conducted on September
28 among the employees of Respondent in an agreed-upon
appropriate bargaining unit.2 The tally of ballots served on
the parties immediately following the election showed that of
approximately 375 eligible voters 369 cast ballots, of which 2
ballots were void, 115 were cast for the Union, 239 were cast
against the Union, and 13 ballots were challenged. The
challenged ballots were not sufficient in number to affect the
results of the election. On October 3 the Union filed timely
objections to conduct affecting the results of the election. In
the objections the Union alleged, inter alia, that in the
critical period prior to the election' the Employer promised
unit employees a pension program and wage increases,
created an impression of surveillance of its employees' union
activities, coercivley interrogated employees concerning
their union activities, and engaged in other conduct alleged
as unlawful in the complaint issued in Case 26-CA-7362. 4
Issues
1. Whether Respondent violated Section 8(a)(1) of the Act
by:
(a) Coercively interrogating its employees regarding their
inclusion in the Union's organizing committee, their union
membership, activities, and sympathies, and those of other
employees.
(b) Timing the announcement to its employees of a new
but previously considered pension plan to persuade its
employees to stop supporting the Union.
(c) Telling its employees that while no wage increase
could be given during the union campaign it would help its
employees by looking into a wage increase after the pending
representation election.
(d) Promising its employees a pay increase without a
union as soon as Respondent showed a profit.
(e) Threatening a known prounion employee with loss of
pay benefits by discontinuing the use of makeup cards.'
(f) Threatening its employees with loss of work if the
Union came in, that strong union supporters would have to
find work in a unionized plant if employees continued to
support the Union, that prounion employees would suffer
unspecified reprisals if the Union lost the election, and that if
the Union were selected a strike would result and the Union
would be responsible for acts of violence.
(g) Soliciting employee grievances to discourage their
support for the Union.
(h) Creating an impression of surveillance by moving the
plant manager's desk from his office to a central production
' Absent exceptions, the Board, on December 20, issued its Order adopting
the recommendations in the Acting Regional Director's Report on Objections,
dated November I., that the Union's request to withdraw Objections 2, 3. and
5 be approved. that Objection 4 and additional unnumbered objections be
overruled, and directing that a consolidated hearing be held on remaining
Objections 1, 6, 7, and 8 and the complaint in Case 26-CA-7362.
' Makeup cards, as will be discussed, are used by Respondent to protect the
earnings of employees on incentive rate for worktime lost through no fault of
their own.
362
DURANGO BOOT
area location where he could more closely watch the
employees during the union campaign.
2. Whether the election in Case 26-RC-5805 should be set
aside and a new election directed.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. A brief filed by Respondent has
been carefully considered. The General Counsel did not
submit a brief.
Upon the entire record of the case and my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation doing business in the State of
Tennessee, is engaged in the manufacture of boots at its
office and place of business in Franklin, Tennessee. During
the 12 months preceding the issuance of the complaint
herein, a representative period, in the course and conduct of
its business operations Respondent purchased and received
at its Franklin location products valued in excess of $50,000
directly from points located outside the State of Tennessee,
and during the same period of time Respondent sold and
shipped from its Franklin location products valued in excess
of $50,000 directly to points located outside the State of
Tennessee.
Upon the foregoing conceded facts I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of Act.
II. THE LABOR ORGANIZATION INVOLVED
The answer admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures western boots at its plant in
Franklin, Tennessee. At the time of the events herein J. R.
Murray became Respondent's president, Elvis Caldwell was
the vice president for manufacturing of Respondent's Ten-
nessee division,' Garner Moss the plant superintendent,
Ernest Glenn Steakley the assistant plant superintendent,
and Ronald King the personnel manager, all at the Franklin
plant.7
The Union began its organizational campaign among
Respondent's approximately 375 unit employees in late
March, and company officials testified that from that time
on until the representation election on September 28 from
two to six union organizers daily were positioned conspicu-
ously in front of Respondent's plant. As noted, the election
' In this capacity Caldwell was in charge of Respondent's plants at Franklin
and Chapel Hill and had additional responsibilities elsewhere. Respondent's
Franklin plant is the only facility involved herein.
' By the time of the hearing Moss had resigned his position with
Respondent to work elsewhere and Steakley had succeeded him as Franklin
plant superintendent.
' From August I through the first half of that month the Union in a series
petition was filed on June 30, and the Stipulation for
Certification upon Consent Election was approved by the
Regional Director on September 14.
Most of the events alleged herein as unlawful took place
during three types of meetings between employees and
members of management. Each of these sessions was
seriated, so that there were several relevant meetings of each
type. The first and principal category resulted from corre-
spondence received by Respondent from the Union identi-
fying employees who had signed union authorization cards
and had joined the Union's organizing committee.' Respon-
dent reacted by calling each employee so named individually
into the office of either Plant Superintendent Moss or Vice
President Caldwell, where Moss, usually in the presence of
Assistant Plant Superintendent Steakley, Personnel Manager
King, and occasionally Caldwell would read the employee
his or her rights. This usually was done within a day or two
after each employee was so identified by the Union.
"Reading the employees their rights," a company reference
to Section 7 of the Act set forth in the Union's first such
letter to Respondent, meant that each summoned employee
was told by Moss that Respondent had received a letter from
the Union identifying that employee as a member of the
Union's organizing committee, that the Company would
protect and respect the employee's rights, and that the
employee would not be harassed. The employee also would
not be permitted to harass other employees, would not be
allowed to campaign or organize for the Union during
working time, and would receive no special privileges. As
these words, in essentially the same form, were repeated to
each relevant employee, the references hereinafter to the
reading of rights will refer to the foregoing.
The General Counsel contends that the individual sum-
moning of these employees from their work stations to
Respondent's offices to be read their rights was in itself
violative of Section 8(a)(1) of the Act, and that other of
Respondent's conduct which occurred during these inter-
views was further violative of Section 8(a)(l).
The second series of meetings at which unlawful conduct
allegedly occurred took place from mid to late August, when
groups of about 12 employees were called to Moss' office
where Caldwell then introduced Durango Boot's new
president, J. R. Murray. The General Counsel, contrary to
Respondent, contends that certain statements and promises
made by Murray and Caldwell during these gatherings also
were violative of Section 8(aX I) of the Act.
The third category of meetings relevant herein were the
so-called company committee meetings where, on the last
Thursday of each month, members of management met with
two employee representatives from each plant department to
discuss plant problems and employee job suggestions. Again,
as will be discussed, the General Counsel asserts that
management conduct at some of these monthly meetings was
violative of Section 8(a)(1) of the Act. The General Counsel
further argues that additional unlawful activity occurred
of about 5 letters to Respondent. named 35 to 40 of Respondent's employees
as members of its organizing committee and as signers of union cards. In its
correspondence the Union reminded Respondent of the employees' statutory
right to self.-organization and union membership and sought to protect its
supporters from possible employer reprisal by making company knowledge of
their activities a matter of record.
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apart from the three foregoing situations, and that Respon-
dent's overall misconduct was such as to affect the results of
the representation election conducted on September 28
warranting that it be set aside and a new election conducted.
B. Alleged Unlawful Conduct Occurring While
Employees Were Being Read Their Rights-Facts and
Conclusions
On or about August 2 machine operator J. C. Anglin,9
having been told to report to Moss' office,'" was read his
rights by Plant Superintendent Moss, in the presence of
Assistant Plant Superintendent Steakley and Personnel
Manager King. Anglin testified that after Moss had read his
rights he asked Anglin what the Union could get him that
the employees were not already getting. Anglin replied that
he did not know, but that the employees wanted a union.
Moss reminded Anglin that during the summer months his
two daughters worked at the plant while school was not in
session," and that Anglin himself also had served as night
watchman at the plant during the first 2 weeks of July when
the plant is annually closed for vacation." Anglin replied
that he knew and appreciated this. Moss continued that the
Union wanted full-time workers rather than part-time
workers, and if the Union came in Anglin and his daughters
might not be able to do such work.
Anglin then was asked what his sisters and brother, who
also were employed by Respondent, thought about the
Union." Anglin answered that his sisters and brother were
opposed to the Union except for his sister Joyce, whom he
did not see very often and whose views he did not know.
When asked why he was for the Union, Anglin stated that he
was different and was just looking out for himself.
When Caldwell asked if there was any way that Anglin
could change his mind between then and the election day, he
replied in the negative, stating that he could not turn against
the people he had been asking to support the Union. Anglin
could tell the company officials that he would vote against
the Union, but they would not know how he actually voted.
Caldwell told Anglin that the way he was pulling for the
Union he could carry 40 votes with him.' 4
Moss related that after reading Anglin his rights he had
asked if Anglin had any questions. Anglin then stated that
while the Company had always been good to him and the
members of his family, affording his daughters summer jobs
'Anglin, one of the employees identified to Respondent in the Union's first
letter as a member of its organizing committee, had returned to Respondent's
employ after a brief interruption in what had been a 14-year employment
record with Respondent. Consistent with Respondent's policy where employ-
ees return after voluntarily leaving, Anglin did not recover his former
seniority.
"' Anglin and all other employees called to be read their rights were told to
report to the office by their immediate supervisors.
" Anglin's daughters were working for Respondent in summer 1978 when
this interview occurred One daughter had also been employed there during
the preceding summer.
" Anglin had worked as night watchman during vacation week in 1977 and
for both weeks in 1978.
" As Anglin's three sisters, his brother, and mother all were employed by
Respondent at various facilities other than the Franklin plant, they were not
within the relevant unit.
" Caldwell testified that he had come into Moss' office by chance toward
the end of Anglin's interview to ask about another employee, Richard Sawyer,
who had complained to Caldwell that his rights had been read to him
although he had not joined the Union's organizing committee. Anglin had
and himself the watchman's position, he was for the Union
because he felt that others there needed his help. A lot of
people had not been treated fairly, and many good people
were being underpaid. Also, Anglin accused the Company of
violating its own policy by restoring the seniority of two
other employees who had returned after quitting, which
Moss denied.
I credit Anglin's account of this interview. He testified
forthrightly, in convincing detail, and, as will be seen, his
narrative is consistent with the evidentiary pattern as
established through many witnesses. Contrary to Respon-
dent's argument that Anglin's testimony was colored by
anger at losing his long seniority after briefly interrupting his
employment, Anglin calmly testified that he had assumed
this possibility when leaving Respondent's employ to take
what he had expected to be a better job. Respondent had
been patient in allowing him to time his return and, as noted,
had provided additional employment opportunities for his
daughters and himself. Accordingly, I accept Anglin's denial
that his testimony against Respondent had been based on
rancor because of lost seniority. Also, Anglin's testimony is
supported by the fact that he still was employed by
Respondent when he testified against its interest."
Accordingly, it is concluded from the above that Respon-
dent's method in calling Anglin and 35 to 40 other prounion
employees into the office in a series of individual meetings
during the first half of August, and reading them their rights
in that locus of managerial authority, "appears to be more
antithetical to these employees' Section 7 rights than the
actual content of [Respondent's] message." As in Greenfield
Manufacturing Company, a Division of Kellwood Company, '
from which the foregoing quote is derived, I find that
Respondent's method in singling out identified union sup-
porters from the midst of their coworkers to attend a series
of private meetings with management to be read Respon-
dent's rules regarding the Union's campaign was intimidato-
ry, coercive, and violative of Section 8(a)(l) of the Act.
It further is concluded that Respondent also violated
Section 8(a)(l) of the Act as to Anglin by interrogating him
as to his own union sympathies and desires and those of
members of his family also employed by Respondent," by
asking if he could change his mind about supporting the
Union between the time of the interview and the election,
and by threatening that Anglin and his two daughters would
be deprived of employment if the Union came in.
volunteered that Sawyer was correct on this. Caldwell denied having asked
Anglin what his relatives employed by Respondent thought of the Union and,
after ascertaining that Anglin's rights had been read to him, merely had joined
Moss in telling Anglin that he and his family had been doing a good job for
the Company.
" See Georgia Rug Mills, 131 NLRB 1304, 1305, fn. 2 (1961). Respondent,
arguing that Anglin had incredibly testified that his meeting with Moss and
other company officials on this occasion had lasted at least an hour. produced
timecards to show that Anglin had not been kept in the office as long as
indicated, but had been able to go home earlier. While Anglin may have
exaggerated the meeting's duration, I do not find this to be sufficient to negate
his overall substantive veracity.
'i 199 NLRB 756 (1972). See also Carolina Steel Corporation, 225 NLRB
20, 22 (1976); Starkville. Inc. et al., wholly owned subsidiaries of Garan, Inc..
219 NLRB 595, 596, 601 (1975).
'' In finding this violation, it is irrelevant that Anglin's sisters and brother
whose union sympathies were a subject of Respondent's inquiry, although
employed by Respondent, ere not a part of the unit then being organized by
the Union.
364
DURANGO BOOT
I. Mary Alice Crockett
Crockett's rights were read to her by Moss in Caldwell's
office after she had been summoned there on about August 3
to meet with Moss, Steakley, and King. Crockett testified
that Moss, after reading her rights, asked why she thought a
union was needed at Durango Boot. Crockett replied that
the employees needed wage increases, a pension plan, and
more benefits. Moss stated that a pension plan was in the
making and would be in effect by fall 1978. When Crockett
expressed skepticism Moss asked King to bring in a pension
plan document from another office. King left and shortly
thereafter returned with a document which he handed to
Crockett. However, she related that she had no opportunity
to read the paper given to her by King as Moss had
continued to talk, and she gave the document back to Moss.
Moss corroborated Crockett's testimony that while they
were together he had told Crockett of his earlier experiences
while employed at Acme Boot Company, a unionized shop.
He had described three acts of violence as occurring in
reprisal for crossing the union's picket line during a strike-
a man's tobacco crop had been pulled up, his car blown up,
and a lady's storm door had been blown off by a shotgun
blast.
Crockett declared that if the Union did not come in she
would quit her job." Before Crockett left, Moss told her that
he wished he could have talked to her before she decided to
join the Union so that he could have talked her out of it,
declaring that he almost had talked J. C. Anglin out of
supporting the Union.
Moss and Caldwell testified that their efforts during this
interview had focused on attempting to dissuade Crockett
from her stated threat to quit if the Union lost the upcoming
election. Caldwell, who related that he had come into the
room near the end of that session, had gone to school with
Crockett, had known her for many years, and was particu-
larly anxious that she not quit. Moss also related that he had
told her of the union violence at Acme Boot in order to
persuade her not to leave over a difference concerning the
Union.
As Crockett's testimony is largely undisputed, I find that
in so interviewing her in the locus of authority concerning
her rights Respondent violated Section 8(a)(1) of the Act.20
Respondent further violated Section 8(a)(1) by interrogating
Crockett as to why a union was needed and by threatening
her and other employees named above that, if the Union
came in and there was a strike, the Union would cause the
commission of acts of violence against those who continued
to work, against which Respondent could provide only
partial protection.
'" Employee Richard Sawyer testified that, after Moss had read him his
rights in the office on the same day as the interview with Crockett, Moss
described in similar terms the examples of union violence he had witnessed at
Acme Boot. Moss also admitted having told Polly Clemons, an employee who
had asked him about the possibility of union violence in the event of a strike at
Respondent's plant, that the Company could guarantee her safety while she
was on Respondent's premises but not at other times, and that he then had
given her the examples of union violence seen at Acme Boot. In that same
period Moss' Acme Boot experiences and statement that employees' safety in
the event of the strike could be guaranteed only while on Company premises
also was related by Caldwell to a group of about 12 employees who had been
summoned to a meeting to be introduced to Respondent's new president,
Murray.
2. Brenda Walker
Walker, called to the office on August 4, related that she
was read her rights by Moss in the presence of King and
Caldwell.2 After Moss read Walker her rights he asked why
she wanted the Union and whether she was not satisfied with
her working conditions. Walker replied that she needed
more money and something to secure her future. When
Moss asked what she meant, Walker told him that the
employees did not have a pension plan. Moss replied that a
plan was in the making.
King told Walker that if the Union went on strike
employees supporting same would probably not receive
more than $20 to.$25 per week. He asked how Walker would
feed her kids on that.22
As Walker's testimony is essentially undisputed, it is
concluded that during the August 4 interview Respondent
violated Section 8(a)(1) of the Act by unlawfully interrogat-
ing her as to why she wanted the Union in the context of her
satisfaction with working conditions. Respondent further
violated Section 8(a)(1) by asking Walker how she would
feed her children on strike benefits of $20 to $25 per week
should the Union come into the plant and engage in a strike.
This was part of a pattern by management representatives of
seeking to impress employees that if the Union came in a
strike detrimental to their interests would inevitably occurr.
3. Zelmer Perry
Perry, a boot cutter, testified that his rights were read to
him in Moss' office on August 2, by Moss in Steakley's
presence.
After reading his rights, Moss told Perry that a written
complaint had been filed against him by another employee,
Winnie Wallen, to the effect that Perry had threatened to
burn down her house or trailer because she had not attended
a meeting for which Perry had been distributing handbill
announcements outside the plant. Perry replied that he had
just been joking and had a witness to prove that he had made
the statement in a jocular manner. Wallen was his brother-
in-law's niece, whom he had known for at least 4 years, and
they often had joked together. When Perry asked what he
was going to do about the complaint Moss stated that
Wallen had seemed pretty upset by the incident, and that he
would need time to think about the matter. Moss told Perry
to come back later that day or the next morning and he
would announce his decision.
That afternoon Perry was present at a company commit-
tee meeting attended by Caldwell, Moss, Steakley, King, and
by employee representatives from each department. Perry
related that at the end of the meeting employee Polly
" When the Union later lost the election. Crockett did leave her job.
: See Greenfield Manufacturing Company, a Division of Kellwood Company.
supra; Starkville. Inc., supra; Carolina Steel Corporation, supra. As it has been
found that Respondent's conduct in reading rights to all employees called to
the office under the circumstances herein was violative of Sec. 8(a)(1) of the
Act, this finding will not be reiterated separately hereafter as to all other
employees to be considered herein who also were called to the office for such
purpose.
" Caldwell's denial that he was at this meeting is not credited.
2 Earlier in the meeting Walker had announced that she was expecting a
child.
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clemons asked Moss if they Union was voted in the plant
would the union people harass her to try to make her join
the Union or else quit her job. Moss replied that he could
guarantee Clemons' safety at the plant but could not
guarantee that when she went home that the union people
would not come along and blow off her front door or blow
the tires from her car to try to make her leave. Clemons
replied that if it came down to that she would just quit.2
Perry remained after the meeting until the others had left
and only Moss and Caldwell remained. Perry asked Moss if
he had decided what he was going to do with him. Moss
stated that he was going to show Perry how fair he was and
give Perry a second chance. The conversation turned to the
people in the plant who Perry felt had been mistreated. Moss
told Perry that he knew he was going to carry a lot of votes
either way he went and, if Perry should change his mind, he
wanted Perry to be man enough to admit to him that he had
been wrong.
From Perry's above undisputed account it is concluded
that Respondent violated Section 8(a)(1) of the Act by
telling Perry during their second meeting on August 2 that
he knew that Perry was going to carry a lot of votes and, if
he should change his mind about the Union, Perry should be
man enough to admit this to him. Not only did this
statement create in Perry an impression that his union
activities were under surveillance,24 but also represented a
form of coercive interrogation as to the continuing state of
Perry's union sympathies. However, as Wallen had initiated
the written complaint concerning Perry, I do not find that
Moss' resulting consideration of disciplinary action against
Perry was unlawful, but rather was an exercise of his
responsibility to keep order in the plant.
4. Elizabeth Anne Martin and Mary Sue Green
Employees Elizabeth Martin and Mary Green"' were
interviewed together in Moss' office. Later in the interview
they were joined by Steakley.
Martin testified26 that after Moss had read them their
rights he asked if they had any questions. Green, who briefly
had interrupted her employment with Respondent but had
returned, asked whether she would get her seniority back
from the date she originally had been employed. Moss
replied that those who quit and returned to work did not
recover seniority and offered to show the records of relevant
employees to confirm that seniority had never been restored
in these circumstances.
Moss asked the two ladies if the Company had done
anything to them. When they denied this he asked if their
foreman had done anything to them. When they again
" This incident, more fully set forth here, was found above to have been
violative of Sec. 8(a)(l) of the Act.
" Although creation of the impression of surveillance of Perry's union
activities was not specifically alleged in the complaint, it was fully litigated at
the hearing and is closely related to matters actually alleged.
" Martin is Green's aunt.
" Martin's description of this interview is far more comprehensive than that
given by Green.
" As the Board stated in Uarco Incorporated. 216 NLRB , 2 (1974), "it is
not the solicitation of grievances itself that is coercive and violative of Section
8(aXI), but the promise to correct grievances or a concurrent interrogation or
polling about union sympathies that is unlawful; the solicitation of grievances
answered in the negative Moss then asked what in hell did
they need a union for.
Moss asked if the two employees had ever worked in a
plant with a union. Martin replied that she had and, at
Moss' request, related her approximate daily earnings while
employed there. Moss, after inquiring if she had ever asked
her foreman to look up her average earnings with Respon-
dent, then looked up Martin's average earnings, which were
higher than at her unionized job, and the earnings of Green.
Moss stated that since the Union had been trying to get
into the plant management had opened its eyes to some
things and, if the employees did not tell management what
was going on in the plant, they could not correct it. Martin
replied that she did her work and minded her own business.
Moss replied that the Company knew that, and that was the
kind of employee they wanted. Steakley, who had come in
during the interview, also asked the two women why in hell
they needed a union.
Green testified that at the end of the interview Moss
accused them of being influenced by Wallace Martin. When
Martin denied this, Moss told her that she must be
influencing Wallace. When this too was denied, Moss then
stated that J. C. Anglin was influencing Wallace, and that
Wallace made damn good money.
Moss, while confirming that he had read both women
their rights in one session and had discussed with Green
Respondent's policy of not restoring seniority to returning
employees, denied that either he or Steakley had asked why
they wanted a union.
Noting the extensive other unlawful interrogation in this
matter and Martin's convincingly detailed testimony, Moss'
denial is not credited. Accordingly, it is concluded that
during the August 21 interview of Martin and Green
Respondent violated Section 8(a)(1) of the Act by the
conduct of Moss and Steakley in demanding why these
employees wanted a union and by soliciting grievances in
telling these employees that, if they did not tell management
what was wrong in the plant, management could not correct
it. 2.
5. Joyce Dodson
Employee Joyce Dodson testified that on about August 16
at the instruction of her foreman she met with Moss, King,
Caldwell, and Steakley in Caldwell's office, where Moss read
her rights.
Dodson related that Moss told her that he had been
notified that she was working for the Union. When she
confirmed this, King asked why. Dodson replied that things
needed to be better around there. King retorted that the
Union was brainwashing her. Moss told Dodson that the
merely raises an inference that the employer is making such a promise ....
Also see John L. Lutz Welding and Fabricating. Inc., 239 NLRB 582 (1978). 1
also find that Respondent further unlawfully solicited employee grievances in
violation of Sec. 8(a)(l) from the credited testimony of employee James
Walton that on August 12, while with I I other employees at a meeting where
Caldwell introduced Respondent's new president, Murray, he heard Murray
tell the assembled workers that they would have to get together sometimes
and discuss all the problems-that would help out the employees. As
evidenced by the outline of the speech used by Murray, it was the practice at
these meetings to campaign against the Union. In the context of Murray's
speech, his invitation to discuss employee problems was unlawful.
366
DURANGO BOOT
best way is to go company and, if she did not, she would
have to leave or they would take further action.
Both Moss and King confirmed that during the interview
King had asked Dodson why she was on the organizing
committee and had declared that the Union was just
brainwashing her. As Moss and King candidly admitted
King's interrogation of Dodson and displayed a more
positive recollection of this interview than did Dodson, I
credit their denials that Moss had told Dodson that the best
way is to go company, or, in the alternative, she would have
to leave or the Company would take further action."
Accordingly, it is concluded that Respondent violated
Section 8(a)( I) of the Act in King's interrogation of Dodson
as to why she was on the Union's organizing committee.
6. Carolyn Stinson
Employee Carolyn Stinson testified without contradiction
that her rights were read in Moss' office by Moss in the
presence of Steakley and King. Before reading her rights
Moss told Stinson that he had received the notice from the
Union that she had joined the organizing committee and
asked if this were true. When Stinson answered affirmative-
ly, Moss then read her rights.
It is concluded that the reading to Stinson, an avowed
union adherent, of her rights in the center of managerial
authority and the related interrogation as to whether it was
true that she had joined the organizing committee were both
violative of Section 8(a)(1) of the Act.2
7. Richard Sawyer
Employee Richard Sawyer testified that on about August
3 he attended a meeting in Caldwell's office with Moss,
Steakley, and King at which time Moss read his rights. Moss
then asked Sawyer what he thought the Union could do for
him. Sawyer replied that he thought it could not help him
much, but it might assist other employees who were just
starting out at the minimum wage. King replied that after a
month or so on the job new employees received raises.
As found violative above, Moss then described the three
incidents of union violence he had witnessed earlier while
employed at Acme Boot Company. Moss continued that the
only reason this violence had occurred and why the Union
was after Respondent's people at Franklin was that certain
boot manufacturers had closed down their plants in New
England, and the Union, seeing this unorganized company
in Franklin, thought that it could come down and pick up a
few more dollars from Respondent's employees if they could
organize them. The union people were there only because
they were after the employees' money, and if the Union did
come in the first thing it would call for at the bargaining
table would be payroll deductions in order to get union dues
J' As I do not find Dodson (who on cross-examination could not repeat her
prior testimony) to be an impressive witness, Caldwell's denial that he was
present at that interview also is accepted.
" I also find that Sec. 8(a)( 1) of the Act was violated as it was with Carolyn
Stinson during a virtually identical interview on about August 22 conducted
by the same three company officials with Dorothy Faye Stinson, Carolyn
Stinson's sister. Moss also told Dorothy Stinson that he had received a
statement that she had joined the organizing committee and asked if it were
true. Her rights were then read.
"' See Community Cash Stores. Inc.. 238 NLRB 265 (1978).
deducted from the paychecks. Moss continued that this
might cost the employees some of the benefits they already
had since, in order to get the payroll deduction, the Union
might bargain away some of the employees' existing rights.
The union people just drew their big salaries. drove around
in their air-conditioned cars, and cared only about the
money they were getting.
In connection with his discussion of violence, Moss told
Sawyer that the union people could get employees inside the
plant to commit acts of violence so that if there ever was a
police investigation the union representatives would not be
held responsible.
From Sawyer's uncontradicted testimony it is concluded
that Respondent violated Section 8(a)( ) during the forego-
ing interview by coercively interrogating him in the vice
president's office as to what he thought the Union could do
for him and by predicting that if the Union came in a strike
and union sponsored violence would result."'
No finding is made as to Moss' projection that, should
bargaining take place, employees might lose existing benefits
because of the Union's determination to obtain dues-check-
off deductions, as not alleged in the complaint.
8. Terry Wayne Stinson, Sharon Oden, and Arthur
Wallace Martin
Stinson." Oden, and Pratt testified that at various times
during August they were called individually to the office
where Moss, in Steakley's presence, read them their rights.
As found above, this conduct was violative of Section 8(a)(l)
of the Act.''
Arthur Wallace Martin" testified that in mid-August,
when his foreman had told him to go to Caldwell's office to
meet with company officials, he flatly refused.
Later that day, Moss came to Martin's work station and
told him that he had been wanted in the office so that he
could be advised of his rights. Moss then read Martin his
rights, as he had the others, telling Martin that he would not
let anyone harass him in connection with his support for the
Union and, in return, Martin would not be permitted to
harass anyone else. Moss then left."
While the foregoing situation is somewhat different from
other related instances considered above in that Martin's
rights were read at his work station rather than in Respon-
dent's office, in the circumstances herein this difference does
not appear to be material. Martin still was singled out for
attention by management as an acknowledged union adher-
ent and avoided having heard his rights in the coercive
setting of Respondent's offices only by his willingness to risk
being viewed as insubordinate by refusal of his superior's
directive to go there.' Despite his refusal Martin was still
singled out and could not avoid the substance of these
interviews when Moss later came to his work area.
" Stinson is the brother of Carolyn and Dorothy Stinson.
' See Greenfield Manufacturing Company. supra.
" At the time of the hearing Wallace Martin, brother of Elizabeth Martin.
was still employed in Respondent's lasting department.
" Martin's testimony in this regard is corroborated by Moss.
" Wallace clearly knew in advance the reason his supervisor had told him to
go to the office for, as Respondent established in the record, the content of the
numerous rights-reading sessions then being conducted there were common
knowledge among Respondent's employees.
367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, it is concluded that in distinguishing Martin as
a union adherent at his work area by Moss' reading of his
rights Respondent acted coercively in violation of Section
8(a)(1) of the Act.
9. James Walton
Walton'" testified that on about August 10 Moss, Steakley,
King, and his foreman, Luther Graham, came by his work
station. Moss then asked Walton, "Of all people, you're for
the Union, right, James?" When Walton said that he was,
Moss asked for his reasons. Walton replied that he was for
the Union because of seniority rights. He did not think it
proper that people who had been working for the Company
for less than a year should be earning more than he. Moss
denied this was true, and King interjected that he knew
whom Walton was talking about-his name was J. C.
Anglin. Moss then was called to the office, leaving King
with Walton. King attempted to continue the conversation,
but a power failure then developed putting out the lights in
the plant. Walton told King that that was all he had to say
and left.
Moss testified that during mid-August, while he, King,
and Steakley were passing through the lasting room on their
way to Moss' office, they saw Walton working although it
was very late. Moss asked Walton if he was going to work all
night. Walton replied that if the Union got in they would not
have to work these long hours. Moss told Walton that he
was an assistant utility man and had worked long hours ever
since he had been with the Company. The Company always
had had to work late in this department, overtime always
would be necessary there, and no union could dictate
overtime to the Company. Moss denied having told Walton
that he was surprised that he was for the Union, or words to
that effect, and recalled that the power failure referred to by
Walton had occurred at a different time.
Noting Respondent's extensive pattern of employee inter-
rogation, as found above, and that Walton's credibility is
supported by the fact that he testified adversely to Respon-
dent while still in its employ," I credit Walton's account of
the above incident.
Accordingly, it is concluded that on August 10 Respon-
dent violated Section 8(a)(1) of the Act when Moss interro-
gated Walton as to whether he was for the Union and again
when Moss asked him to explain his reasons for supporting
the Union.
Summarizing, it has been found that during private office
meetings with known prounion employees and at other times
and in ways disclosed above Respondent violated Section
8(a)(1) of the Act by:
(a) Summoning 35 to 40 prounion employees and orga-
nizing committee members from their work stations to
attend private meetings with management, or in privately
meeting with Wallace Martin at his work area, to lecture
such employees as to their rights under Respondent's rules
relating to the Union's organizational campaign.
'" Walton. employed as a utility man in the lasting department, has worked
for Respondent for approximately 9 years. He was employed by Respondent
at the time of the hearing.
" See Georgia Rug Mill, 131 NLRB at 1305, fn. 2.
"Employee Zelmer Perry was the first to hear of the pension plan, having
(b) Coercively and repeatedly interrogating employees
Anglin, Crockett, Walker, Perry, Elizabeth Martin, Green,
Dodson, Carolyn and Dorothy Stinson, Sawyer, and Walton
as to their union activities, sympathies, and desires.
(c) Coercively interrogating Anglin about the union
sympathies and desires of his relatives also in Respondent's
employ.
(d) Threatening Anglin that he and his two daughters
would be deprived of employment if the Union were
selected.
(e) Threatening employees Crockett, Sawyer, Clemons,
and others that their selection of the Union would result in a
strike accompanied by union caused violence, against which
Respondent could provide only partial protection.
(f) Threatening Walker, a known union supporter, that if
the Union were selected a strike would result in her having
to provide for her children on meager strike benefits.
(g) Creating an impression in employee Perry's mind that
his union activities were under surveillance.
(h) Soliciting grievances from Elizabeth Martin, Green,
and Walton.
C. Other Alleged Acts of Interference, Coercion, and
Restraint
1. Respondent's alleged unlawful preelection
announcement of a pension plan-facts and conclusions
The General Counsel, contending that Respondent had
timed the announcement to employees of its intention to
provide a previously considered pension plan so as to
dissuade them from supporting the Union, presented the
testimony of a number of employees who related that the
pension plan matter had been raised at various employee
meetings called by Respondent Vice President Caldwell in
the preelection period to enable groups of employees to meet
Respondent's new president, J. R. Murray. The subject of
pensions also came up in a series of committee meetings
between members of management and employee representa-
tives of various departments. As noted, these committee
sessions were held monthly to discuss job-related problems
and employee work suggestions.
Accordingly, employees Mary Alice Crockett, Brenda
Walker, and Sharon Oden testified that at various times in
August, while either at a company committee meeting or at
a gathering where Murray was being introduced, they were
told, in response to questions raised either by themselves or
other employees present, that Respondent had a pension
plan in the making, and that it would be ready in fall 1978.7'
Of the General Counsel's witnesses on this point only
Terry Wayne Stinon testified that Respondent itself had
initiated the topic of a pension plan with employees, as
opposed to merely replying to employee questions. Stinson
related that at the end of August he and about 10 other
employees had attended a meeting in Moss' office where
Caldwell had introduced Murray. During an antiunion
speech where Murray stated that he was going to give
attended a company committee meeting in the last week of March shortly
after the start of the Union's organizational campaign. At that meeting, in
response to a question raised by an employee as to why there was not a
pension plan, Moss told those present that there would be a pension plan in
the fall. No details were provided.
368
DURANGO BOOT
everybody a raise whenever the Company started to show a
profit, Murray also announced that Respondent had filed a
pension plan that was going to be effective in the fall.
However, Murray did not provide any details.
Caldwell testified that a pension plan went into effect at
the Franklin plant on January 1, 1979, the full details of the
plan having been announced the preceding December 1,
when letters on the subject were sent out to the employees.
Caldwell related that the pension plan had had its
inception in January 1978 when he, Elwood Steakley, then
Respondent's president," and Warren Danner, its controller,
met to close Respondent's books on the year 1977. On that
occasion, Steakley had told Caldwell that 1977 had been a
good year for Respondent, and that although he and Danner
planned to retire in 1978 one thing that they definitely were
going to do before leaving was to see that the employees got
a pension plan.
In February, Caldwell was visited by Bill Quirk and Hugh
Kennedy, respectively, the public relations representative
and the personnel manager of Respondent's parent U.S.
Industries, who explained that Steakley and Danner wanted
them to start gathering data in preparation for a pension
plan to be put into effect for employees at all of Respon-
dent's plants. They requested a list of all employees showing
seniority dates and age. During their visit they worked with
the payroll clerk. ' °
At the company committee meeting that took place the
last Thursday in March, when employee problems were
discussed with management and an employee asked what
Respondent was doing about the pension plan, Caldwell had
replied that the Company was definitely getting a pension
plan and hoped to have it in effect by late fall. He explained
that management had started getting the details together,
that U.S. Industries had been working on this with President
Steakley and Controller Danner, and that Danner was in
charge of the matter and was answering to Steakley.
Caldwell did not go into any details, as he had no further
information.
The matter of the pension plan also was brought up in
other monthly committee meetings, and Caldwell referred to
it at the Chapel Hill plant and at other of Respondent's
facilities as well.
Caldwell related that questions as to whether there would
be a pension plan thereafter were raised many times by
employees during meetings that Caldwell had conducted to
introduce Murray. Caldwell testified that on these occasions
he had told the employees that the pension plan was
definitely in the making, they were supposed to have
everything worked out, and it would be in effect in the late
fall.
On August 11 Respondent sent a letter to all its employees
setting forth reasons why the employees should not support
the Union. In an appendix to this letter the fourth item listed
under the heading of "What Durango Has Already Done
For You" was "Company Pension Plan Scheduled for Fall,
1978."
"Elwood Steakley was the uncle of the then assistant plant manager.
, Before the visit of the U.S. Industries representatives, Caldwell had
discussed the pension matter only with Plant Manager Moss, telling Moss that
the plan looked good and would definitely be put into effect for the employees
that year. Moss had responded positively to the idea.
Murray succeeded Elwood Steakley as president on June
12. From August through September, as noted, Murray and
Caldwell conducted a series of approximately 35 to 40
meetings with groups of employees in Moss' office4' where
Caldwell introduced Murray to the employees as Respon-
dent's new president. In conducting these meetings both
Caldwell and Murray followed prepared outlines of what
they were going to say. Although Caldwell initially testified
that Respondent principally had spoken to the employees of
the pension plan merely in response to their questions on this
subject, when confronted with a note on his outline with
respect to pensions Caldwell agreed that the pension plan
was one of the topics he and Murray had planned to present
to employees, and rather than merely mentioning it in
response to employees' questions he and Murray had taken a
lead in announcing the pension plan.
It is therefore found that while many statements by
management officials that a pension plan was being prepared
to become effective in the fall were in response to employee
questions, Respondent also took an initiative in announcing
the plan during the critical preelection period. This was done
in Respondent's August 11 'etter to employees and during at
least some of the 35 to 40 meetings when Caldwell was
introducing Murray. It also is clear that while the pension
plan had been contemplated since January 1978, perhaps 2
months before the start of the Union's organizational
campaign, no employees were told of the prospects for such
a plan until after the Union's campaign had begun in March.
As Administrative Law Judge Harmatz noted in his
Board-approved Decision in Arrow Elastic Corporation:
It is not enough that the employer had previously
decided on the grant of such [pension] benefits, if in fact
it had not become lawfully committed to provide such
benefits prior to the union campaign. It remains the
further burden of the employer to show that its
announcement was reasonably timed as a sequential
step in, and a byproduct of, a chronology of conception,
refinement, preparation, and adoption, so as to lead one
reasonably to conclude that the announcement would
have been forthcoming at the time made even if there
were no union campaign." Any other result would give
employers a considerable advantage, possibly allowing
discretionary action to alter the balance which must be
maintained if employees are to exercise an uncoerced
choice. An initial decision to effect a benefit program
. . . necessarily rests on a number of imponderables.
Although at the time of that decision, the employer
would be aware of the cash it is willing to allocate to
such a program, whether such an expenditure will
purchase, on a sustained basis, a program sufficient to
finance the retirement benefits desired is an unknown.
Extensive exploration . . . might well produce a recon-
sideration of the initial decision, culminating in deferral
or abandonment of the original plan. .... [S]ubstantial
concern arises from the unexplained delay between the
original determination and the Employer's final com-
mitment to extend such benefits.
Only the employer is in a position to explain delays in
the implementation of such benefits and the type of
"Moss' office was used for these sessions since it was the largest.
230 NLRB 110, 113-114(1977).
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof presented in such cases as Domino of California
[205 NLRB 1083], Mr. Fine, supra, imposes no unrea-
sonable burden on the employer, if in fact the ultimate
grant of such benefits and the timing thereof were not
influenced by the organization campaign.
" See, e.g., Mr. Fine, Inc.. 212 NLRB 399, 402 [11974].
In the present case as in Arrow Elastic Corporation, supra,
it appears that the decision to establish a pension program
was made before the union campaign but was not imple-
mented until several months after the election. Also as in
Arrow Elastic Corporation, no explanation is offered by
Respondent for the lapse of time, nor does the record
disclose what occurred in the period between Respondent's
announcement of a pension plan and its commitment, of a
binding nature, to that very same program. Clearly, the
decision made by Respondent in the present matter to grant
the pension program was unilateral and revocable until
January 1, 1979, or the preceding month when announced,
at earliest. It was not until then that employee enjoyment of
this benefit was no longer speculative.
As Respondent has not furnished evidence justifying its
reference to the introduction of a pension plan as part of its
preelection propaganda, absent such proof I find that
Respondent unlawfully interfered with the election and
violated Section 8(a)(1) of the Act.
2. Respondent's alleged unlawful preelection promises of
wage increases-facts and conclusions
The General Counsel, contrary to Respondent, contends
that in the preelection period company officials unlawfully
promised to look into pay increases for the Franklin plant
employees after the election.
Employee Mary Alice Crockett testified that on August 4
she and about 11 other employees attended one of the
meetings where Caldwell introduced Murray. After Murray
had spoken to the assembled staff he turned the meeting over
to Caldwell, who went around the room inviting employee
questions. When Crockett was reached she inquired about
pay increases." Caldwell replied that the Company was
going to look into wage increases later on, but that pay could
not be increased while the election was pending.
Employee Terry Wayne Stinson related that at the end of
August he and about 10 other employees were summoned to
attend a meeting similar to that described by Crockett
where, again, Caldwell introduced Murray. After being
presented Murray told the assembled employees that he
wanted to get to know the people there. Everybody had been
able to work together, and he saw no reason why they could
not do so then. There was no reason why the employees
should get a union to do what they already could accom-
plish. Murray then announced that he was going to give
everybody a pay raise whenever the Company showed a
profit. Both Murray and Caldwell commented that Respon-
dent had had a good year.
"As discussed above, Crockett also then asked about a pension plan.
"At the time of the hearing neither Crockett or Stinson was still employed
by Respondent.
" Respondent did not follow a practice of granting regularly scheduled
wage increases. Rather, all pay increments were in the nature of merit
Stinson testified that, when later in the meeting he had
asked about the pay increase, Caldwell responded that it was
against the law to say how much the raise would be, when it
would be given, or to put in writing the amount of the raise."
Caldwell recalled that both Crockett and Stinson had
asked questions at various meetings. For reasons of health
Crockett had been transferred from a piecework job to an
hourly rated position where she was earning less money than
before. In this context Crockett had asked when she would
be reviewed and was told that this would happen as soon as
her foreman thought that she had learned her new job and
recommended that she be given a raise.' Stinson, in turn,
had asked Murray whether he could get an hourly rated job
instead of his current piecework assignment. Caldwell
explained that other employees in the welt department had
more seniority than he. If Stinson would bid on the next
vacant job and was deemed a good operator in his depart-
ment he definitely would be considered.
Caldwell denied that either he or Murray at any of the
meetings had said anything to the effect that as soon as the
Company was making a profit the employees would receive
a wage increase, or that Respondent would look into giving
pay raises in the future.
The record contains no evidence that pay raises were
given by Respondent to unit members either before the
election or after, while objections thereto were pending.
In resolving this evidentiary conflict as to whether
Respondent, in the preelection period, had promised pay
raises or implied that they possibly would be given after the
election, note is taken of the fact that Respondent actually
did maneuver to grant pay raises after the petition was filed
while, at the same time, attempting to neutralize the Union.
This came about when Moss, in a letter to the Union dated
August 30, noted that, while it is improper for an employer
to give wage increases to try to influence the outcome of a
representation election, the election in Case 26-RC-5805
was being delayed by new charges filed by the Union, and no
new election had yet been scheduled. As the election date
was being postponed, and as the Board might take a long
time in disposing of the various charges, resulting in undue
delay in pay raises, Respondent, to avoid a legal battle with
the Union, in effect requested permission from the Union to
conduct wage reviews and to grant wage increases as it had
in the past.4' In his letter Moss cited the Union's claim to be
interested in the welfare of Respondent's employees.
By night letter to Moss dated August 31 the Union replied
to his letter as follows:
. . . you bet your sweet bippy we are interested in the
welfare of your employees. We hereby authorize you to
give your employees one dollar per hour increase
effective today's date-8-31-78-and further authorize
retropay to January 1, 1978, without us filing any
charges. The only charges we are interested in filing is if
you don't give this increase; it should be unlawful for
increases and were given to individuals at various times on the recommenda-
tions of their supervisors.
'" As noted, Respondent did not have an established policy for conducting
regular wage reviews and granting periodic pay increases.
370
DURANGO BOOT
employers to pass out small increases as you have
normally done in the past."
As Respondent, in its letter, was not recognizing the
Union, and as the Union, without majority support, was not
positioned to bargain, the cleatst purpose of Respondent's
action, absent a policy of granting regular pay increases, was
to attempt to give unscheduled raises before the election. At
the same time, the Union would be given the difficult
limitation as to the number of employees to be so benefited
and the size of the raises, or risk recording its opposition to
employee pay increases for the indefinite future.
The foregoing exchange of correspondence helps to
resolve the instant credibility issue by demonstrating that in
the preelection period Respondent was overtly prepared to
use the possibility of undetermined pay increases as a
campaign weapon against the Union.
Accordingly, noting Respondent's above-described will-
ingness to use the prospect of pay increases as a strategem in
the preelection period, in the context of Respondent's other
numerous acts of unlawful conduct found above, I credit the
testimony of Martin and Stinson. The statements made by
Caldwell and Murray in the period before the election
tended strongly to impress upon employees that they did not
require a Union to receive a pay raise. Additionally, rather
than restricting himself to explanations of Respondent's
legal obligations, Caldwell's statement that wage raises
which might be granted later on could not be considered
while the election was pending had the foreseeable effect of
placing the onus for such delay on the Union. Therefore,
these statements were in violation of Section 8(a)(1) of the
Act. '"
3. Respondent's alleged unlawful threat to reduce job
benefits by discontinuing the use of makeup cards-
facts and conclusions
Respondent uses pink makeup cards authorizing addition-
al compensation to protect the earnings of employees on
piece or incentive rate against diminution through no fault of
their own. Under Respondent's policy makeup cards are
approved for individual employees by their supervisors for
three reasons: (a) lack of work on a particular job, (b) when
employees are reassigned for Respondent's benefit from their
own jobs to perform other jobs," and (c) when an employee's
machine is broken down. Employees who feel entitled to
makeup compensation give their reasons to their supervisors
who have the authority to approve same.
Employee Terry Wayne Stinson'° testified that on August
20, as he was punching out at the end of the day, his
supervisor, Welt Department Foreman Joe Brown, told him
that too many pink cards were being passed out, a problem
which he had to do something about. Brown declared that
"See Reap. Exh. 14.
"See Tipton Electric Company and Professional Furniture Company. 242
NLRB 202 (1979).
" This situation frequently arises when employees are asked to stop their
regular work temporarily to replace absent employees. Employees serving as
replacements may not perform the new work as quickly as their regular
assignments but, as they are helping Respondent. they are paid through the
makeup for any reduction in their earnings.
"' As noted above. Stinson was one of the employees identified to
management by the Union as a member of the organizing committee and
whose rights had been read to him by Moss.
he had exceeded his quota, having given out over $1,100 or
$1,200 worth of these makeup cards in the previous weeks.
Brown and Stinson then disagreed as to whether Stinson had
not gotten his share. Brown repeated that he was going to
stop distributing so many cards and give them only to
employees who were entitled to receive them.
Stinson then punched out and went outside the plant to
check on his ride. Soon, however, he went back inside the
plant to discuss this matter further with Brown. Brown
reiterated that he was not going to give him the pink cards.
Stinson reminded Brown that he had made some promises."
Brown then accused Stinson of putting "the man outside the
door."" Stinson denied having put the man outside the door
but told Brown that he could bet that he was on that man's
side.
Steakley testified that the weekly payroll summaries he
received as assistant plant superintendent for the week
ending August 19, which showed the makeup compensation
paid in the entire plant and within each department, revealed
that the makeup costs were higher than they had been since
the preceding January. The welt department, where Stinson
was employed, had a particularly high makeup pay figure.
The next morning he called a meeting of all supervisors,
including Brown, indicated the existence of this problem,
and asked their cooperation in dealing with it. He thereafter
made followup visits to the supervisors to check their
progress.
Steakley explained that, as there are roughly 40 machines
in the welt department, it was possible for employees to
abuse the use of makeup cards by misrepresenting to their
supervisors just how long their machines are down. A
supervisor could be told when a machine malfunctioned but
not just when it was repaired. As employees are trusted to
record accurately the times when their machines are
inoperative or when they are assigned to other work, it is
possible that supervisors might inappropriately approve
makeup cards for employees who incorrectly stated their
entitlement.
Brown testified that in August, after he had left the
meeting where Steakley requested the cooperation of the
supervisors in controlling makeup pay, he returned to his
department and made the rounds of all employees at their
respective work stations. Starting with the inseamers, Brown
went around and told all incentive employees in his
department that the Company had been having a problem
with makeup that had to be corrected. Makeup cards would
be issued when employees' machines were down, when
someone was moved from his job, or when someone had run
out of work. Unless one of these conditions was met, no
makeup cards would be issued.
Later that day Brown reached Stinson at the sole
attaching machine where he had been temporarily assigned.
Brown told Stinson that the Company was having a problem
" Stinson testified that in March Brown had told him that he would give
Stinson pink cards to help him make a decent wage until he learned stitching.
Thereafter. Stinson received pink cards signed by Brown about five times a
week, even though his machine was not down. Stinson related that Brown also
had signed makeup cards freely for other employees in the department.
" At that time a union representative was standing in front of the plant. As
noted. union representatives were conspicuously in front of the plant from the
time the Union's organizational campaign began in March until the election
on September 28.
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with makeup, and that he needed to control it. Brown did
not want to be unfair to anybody but it was necessary to be
fair to the Company at the same time. Stinson asked if
Brown meant that he was going to take away his makeup.
Brown replied that he had not said that, but that he would
have to control makeup. If Stinson's machine was down, if
he was out of work, or he was sent to do other work, he
would receive makeup pay for the time lost. Stinson repeated
that in other words Brown was trying to take his makeup
away; the Company was always trying to screw the
employees around. Brown replied that that was not what he
had said, repeating the reasons where makeup would still be
available. Stinson then declared that that was the very damn
reason he was going to vote for the damn Union.
When Brown again tried to explain the situation to
Stinson, repeating the preconditions for issuance of makeup
cards, Stinson retorted that earlier he had been making
pretty good money because a lot of boots were being run, but
the Company was not then running as many boots. Brown
told Stinson that he could understand his point, but that the
Company could not afford to pay for more boots than were
being produced. It was necessary to make a given quantity of
boots to maintain overhead, explaining to Stinson about
costs and other items. Stinson repeated that he still was
going to vote for the Union because the Company was trying
to railroad him.
Brown then asked Stinson if he thought he could stay in
business very long buying boots for 50 cents and selling them
for 25 cents. Stinson replied in the negative, but that he
knew that the Company was making a lot of money. When
Brown insisted that he answer the question directly Stinson
refused, again repeating that he still was going to vote for the
Union. Brown then walked away from him.
Near quitting time day, Stinson came to Brown's desk in
the welt room and asked if Brown was still telling him that
he was going to take his makeup away, Brown always having
said in the past that he was going to try to help him out.
Brown replied that he always tried to help people out and
would continue to do so. Stinson repeated, in other words he
could not have a makeup card every day? Brown again
answered that if Stinson deserved one it would be given to
him. Stinson cursed again and went out the door talking
about how he was going to vote for the Union and how
things would change when the Union came in.
Brown denied that he had said that Stinson should not
have brought "that man [the union representative] out
there" and also denied that Stinson had told him that he had
not been responsible for putting the union representative in
front of the plant, but that Brown could bet that he was
going to vote for the man out there. All Stinson had stated
was that the makeup cards were a reason why he was going
to vote for the Union.
Noting that, although the General Counsel examined
relevant company records from the start of 1978 through the
week ending August 19, she did not challenge Steakley's
testimony that makeup costs were higher for the latter
period than before, that Brown's testimony was more
convincingly given and detailed than that of Stinson"' and
that although all incentive workers benefited from the
" Stinson had difficulty in remembering the second part of his conversation
with Brown on August 20 which, he said, took place after he went back inside
the plant to discuss makeup further.
makeup program the evidence does not show that Respon-
dent had singled out Stinson in this regard, had established a
reprisal pattern of discontinuing the use of these cards, or
that Stinson was being deprived of makeup pay to which he
properly was entitled I credit Respondent's witnesses Brown
and Steakley on this matter.
Therefore, it is concluded that in tightening the existing
policy concerning the use of makeup cards Respondent
merely had acted to end an abuse and did not violate Section
8(a)(1) of the Act.
4. Alleged unlawful impression of surveillance-facts
and conclusions
The General Counsel, through the testimony of J. C.
Anglin, Mary Alice Crockett, and Zelmer Perry, established
that on about July 18, after the plant had resumed operation
at the conclusion of the annual 2-week vacation recess,'4 a
small desk was set up in an aisle inside the production area
for Moss, who obviously had been injured and was on
crutches, and that Moss thereafter was more visible in the
plant than before when he had worked from his desk in the
office. Perry testified that Moss, from the new location of his
desk, could see two-thirds of the production area. These
employees related that, although Moss was disabled while
using the desk in the plant, they saw him in their work areas
far more often than in the past.
Anglin testified that when he and employee Wallace
Martin had asked Moss why he had moved his desk into the
plant Moss replied that he had moved it out where he could
see what was going on, as he was not able to get around as
before. Anglin and Martin teased Moss that he had just put
his desk out there to keep them from talking to the women
and the fitting department. Moss had answered in kind.
From the above facts the General Counsel contends that
Moss, by relocating his desk to the plant area and by
otherwise substantially increasing his visibility in, and view
of, the plant in the preelection period, had created an
impression in the employees that their union activities were
being observed and their work more closely supervised.
Respondent argues that the desk had been temporarily
relocated as Moss had been partially immobilized at that
time and required the closer proximity to the work area to
enable him to perform his functions more efficiently.
The parties stipulated that Moss had broken his hip on or
about June I and returned to work on crutches on July 18,
the day after the vacation recess had ended. On July 19 a
desk was moved to the plant area for Moss' use. He
thereupon moved his papers to this desk and continued to
work from there until around September 1, when he could
move about with a cane and, no longer needing crutches,
returned to the office. Although Moss no longer used the
desk in the plant after September 1, it remained in place
until sometime in October, after the September 28 election.
Vice President Caldwell testified that he had made the
decision to move a desk for Moss into the plant after the
latter's return to work on July 18. On that day one of the
utility ladies in the packing room, who routinely was
delivering samples to Moss' office for him to check, had
" In 1978 the plant reopened on Monday, July 17.
372
DURANGO BOOT
asked Caldwell why he did not let Moss move into the plant
area so that it would not be necessary to have to come so
frequently to the office. Adopting this suggestion, Caldwell
asked Moss to have the small desk in the warehouse moved
out to the plant where he could service the supervisors and
clear the production and service sheets and samples rather
than have a constant parade of people to the office. Caldwell
suggested only that the desk be placed near an intercom
where Moss could receive his phone calls, otherwise leaving
the location of the desk to Moss. No reference in connection
with this was made to the Union or the pending election."
Although Respondent has been found herein to have
committed numerous violations of Section 8(a)(l) of the Act,
I cannot conclude from the above essentially stipulated facts
that Moss' temporary use of a desk in the plant area during a
period of severe physical infirmity was unlawful. Although
Moss' temporary relocation to the production area may have
brought him into increased contact with unit employees
while increasing his opportunity to observe them at work,
under the circumstances herein his placement in the work
area does not appear to be a response to the Union's
organizational campaign. Moss' use of the desk in the plant
corresponded with and was limited to his period of greatest
immobility while he was on crutches, and when he could get
by with a cane Moss moved back to his office desk 27 days
before the representation election. Before Moss' injury his
duties required that he spend a certain amount of time in the
plant where, when mobile, he could readily go. His use of
crutches and general difficulty in moving about, which he
explained to Anglin and Martin, made obvious the special
circumstances of why the desk had been moved at that time.
Notwithstanding an election, an employer still has the right
and obligation to conduct its business effectively.
By relocating closer to the operating part of the plant
Moss was more accessible to those who looked to him, to the
plant work which was his general responsibility, and was
more readily able to overcome the effects of his physical
handicap.
Accordingly, it is concluded that under the circumstances
herein Moss' temporary use of a desk in the plant area while
on crutches created neither the unlawful impression of
surveillance of employee union activities nor constituted
improper closer supervision, and was not violative of Section
8(a)(l) of the Act.
In addition to the violations summarized earlier Respon-
dent further violated Section 8(a)(l) of the Act by:
(a) Announcing a new pension program to employees
during the cricital preelection period under circumstances
calculated to influence employees to reject union representa-
tion in a Board-conducted election
(b) Declaring in the critical period before the election that
pay increases delayed because of the election possibly would
be given after the election if the employees did not select the
Union.
D. Objections to the Election in Case 26-RC-5805
The Union's objections to the election closely parallel
certain of the unfair labor practice allegations set forth in the
complaint, including Respondent's promises to employees of
a new pension plan and of possible pay raises effective after
the election and Respondent's extensive coercive interroga-
tion of its employees concerning their union sympathies,
activities, and desires. These unfair labor practices precluded
the exercise of a free and uncoerced choice in the election.
The Acting Regional Director, as noted, having recom-
mended the approval of the Union's request for withdrawal
of Objections 2, 3, and 5, also was affirmed by the Board in
his recommendation that Objection 4 and the additional
objections be overruled.
As there is substantial evidence on the record that
Respondent, by its management officials and agents, en-
gaged in unlawful conduct during the period subsequent to
the filing of the petition and prior to the election, it is
concluded that the Union's remaining objections to the
election be sustained, and a new election be scheduled at a
time found by the Regional Director to be appropriate.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship 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.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be required
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. I shall
further recommend that the election held in Case 26-RC-
5805 on September 28, 1978, be set aside and that a second
election be conducted at an appropriate time.
CONCLUSIONS OF LAW
1. Respondent is an employer 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. Respondent violated Section 8(a)(1) of the Act by:
(a) Summoning pronunion employees and organizing
committee members from their work stations to attend
private meetings with management officials in the office
area, or meeting privately with employees at their work
stations, to lecture them as to their rights under Respon-
dent's rules concerning the Union's organizational cam-
paign.
(b) Coercively and repeatedly interrogating employees
concerning their union activities, sympathies, and desires, or
those of other employees.
(c) Threatening employees with loss of employment
opportunities if they should select a union.
" Moss corroborated Caldwell's testimony in this regard.
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Threatening employees that their selection of the
Union would result in a strike accompanied by union caused
violence and hardship to themselves and their families.
(e) Creating an impression that it was engaged in
surveillance of the union activities of its employees.
(f) Soliciting grievances from employees and implying
offers to adjust them to induce them to abandon the Union.
(g) Announcing a new pension program to employees
during the critical period before the election.
(h) Announcing to employees in the critical period before
the election that pay raises, delayed by the Union's cam-
paign, possibly would be given after the election if the
employees did not select the Union.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent's unlawful conduct interfered with the
representation election held on September 28, 1978.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '
The Respondent, Durango Boot, a Division of U.S.
Industries, Inc., Franklin, Tennessee, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Summoning prounion employees and organizing com-
mittee members from their work stations to attend private
meetings with management officials or supervisors, or
meeting privately with such employees in their work areas,
to lecture them about their rights under Respondent's rules
concerning the organizational campaign of Retail Clerks
Union, Local 1557, Retail Clerks International Union,
AFL-CIO.
(b) Coercively and repeatedly interrogating its employees
about their union membership, activities, or sympathies, or
those of other employees.
(c) Threatening employees that they will be deprived of
employment if the above-named Union, or any other labor
organization, is elected.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(d) Threatening employees that the selection of the Union
would result in a strike accompanied by union caused
violence and hardship to themselves and their families.
(e) Creating an impression of surveillance of its employ-
ees' union activities.
(f) Soliciting grievances from its employees and implying
offers to adjust them to induce the employees to abandon
their support of the above-named Union, or any other labor
organization.
(g) Announcing a new pension program, possible future
pay raises, or other benefits to employees, to dissuade them
from joining, assisting, voting for, or in other manner
supporting the above-named Union, or any other labor
organization.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Post at its Franklin, Tennessee, plant copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by the Company's authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 26, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
IT IS FURTHER RECOMMENDED that the election in Case
26-RC-5805 be set aside, and that a new election be
scheduled at a time found by the said Regional Director to
be appropriate.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
174