E-Town Sportswear, Corp.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 480 (N.L.R.B. 1963)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E-Town Sportswear, Corp. and Amalgamated Clothing Workers
of America, AFL-CIO, Petitioner
E-Town Sportswear , Corp . and Amalgamated Clothing Workers
of America, AFL-CIO. Cases Nos. 9-RC-4803 and 9-CA-2570.
March 13, 1963
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On November 28, 1962, Trial Examiner Edwin Youngblood issued
his Intermediate Report and Recommended Order and report on ob-
jections in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Intermediate Report. The
Trial Examiner also considered an objection to Respondent's alleged
conduct affecting the result of the February 2, 1962, election in the
representation case and recommended setting aside that election and
remanding the case to the Regional Director for the Ninth Region to
conduct a new election at such time as the Regional Director deems that
the circumstances permit the free choice of a bargaining representa-
tive. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.'
The Board 2 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.
THE REMEDY
The Trial Examiner recommended, inter alia, that the Respondent
cease and desist from in any other manner infringing upon the rights
of employees guaranteed in Section 7 of the Act. However, as the
Respondent has no history of previous unfair labor practices and in
view of the unfair labor practices involved, we shall order the Re-
spondent to cease and desist from engaging in the Section 8(a) (1)
violations found and from infringing in any like or related manner
upon the rights of employees guaranteed in Section 7 of the Act.'
'No exceptions having been filed to the Trial Examiner ' s dismissal of certain allega-
tions in the complaint , such findings are adopted pro forma.
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
IMembers Rodgers, Fanning , and Brown].
' Cf. Diebold, Incorporated, 139 NLRB 1000.
141 NLRB No. 38.
E-TOWN SPORTSWEAR CORP. 481
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
In 1(a) of the Recommended Order add the word" Coercively" be-
fore the word "interrogating" and conform the Appendix accordingly.
In 1(b) of the Recommended Order add the words "by asserting
knowledge of their union activities" after the words "Creating the
impression of surveillance of the union activities of its employees" and
make a similar insertion in paragraph 2 of the Appendix.
In 1(c) of the Recommended Order substitute "In any like or related
manner" for the words "In any other manner" and make a similar sub-
stitution in paragraph 3 of the Appendix.
[Text of Direction of Second Election omitted from publication.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
In Case No. 9-CA-2570 upon a charge duly filed on April 18, 1962, by Amal-
gamated Clothing Workers of America, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board, by the Regional Director
for the Ninth Region (Cincinnati, Ohio), issued a complaint on May 18, 1962,
alleging the commission of unfair labor practices by Respondent' in violation of
Section 8(a) (1) of the National Labor Relations Act, herein called the Act. Respond-
ent filed an answer denying the alleged unfair labor practices but admitting certain
facts.
Consolidated for hearing therewith by order of the Regional Director, also dated
May 18, 1962, was the Union's objection No. 1 to the election conducted in Case
No. 9-RC-4803 by the said Regional Director on February 2, 1962.
Pursuant to due notice, a hearing in the consolidated cases was held before Trial
Examiner Edwin Youngblood at Elizabethtown, Kentucky, on July 24, 25, and 26,
1962. All parties were represented at and participated in the hearing, and were
granted the right to present evidence and to examine and cross-examine witnesses.
Disposition of the Respondent's "Motion To Dismiss the Complaint" is made by the
following findings, conclusions, and recommendations. The parties waived the oppor-
tunity afforded to them at the conclusion of the hearing to argue orally upon the
record. Briefs have been received from the General Counsel, Charging Party, and
the Respondent.
Upon the entire record in the consolidated cases, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Kentucky corporation , is engaged at its plant in Elizabethtown,
Kentucky, in the manufacture of men 's clothing . During the past calendar year,
Respondent shipped goods valued in excess of $50 ,000 from its Elizabethtown plant
directly to points in other States . Respondent admits, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1 The name of the Respondent appears as amended at the hearing.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO CONDUCT AFFECTING THE
RESULTS OF THE ELECTION
In the unfair labor practice case the complaint , as amended, alleges in substance
that Respondent ( 1) instructed employees not to vote for the Union , (2) persuaded
employees not to vote for the Union , ( 3) interrogated employees about their union
sympathies and activities , (4) created the impression that its employees' union
activities were under surveillance by Respondent , and (5 ) threatened employees with
layoff or other reprisals if the Union became the employees ' exclusive bargaining
representative. In compliance with the Board's "Order Directing Hearing" dated
April 27, 1962, testimony was taken on the issues raised by Union's objection No. 1.
This objection in substance alleged that Respondent interfered with, harassed, and
coerced its employees and questioned them as to how they intended to vote in the
election.
A. Interference, restraint , and coercion
In December 1961 , the Union started to organize the employees . Two floor-
ladies, Mattingly and Gray, are involved in this proceeding , and there is no dispute that
they are supervisors within the meaning of the Act. When Mattingly and Gray heard
of the organizing drive from employees in their departments , they promptly reported
it to Plant Manager Canada . About this time employees began receiving letters from
the Union. On December 7, Canada wrote to Respondent's Vice President J. R.
Frank advising that the Union was beginning an organizing campaign and asking
for instructions on what action he should take . Further, he recommended that a
talk be made to the employees explaining the Company 's position . On or about
December 13, J. M . Ruby, president of Respondent , made a talk to the employees.
Canada received from Frank and Respondent 's attorneys advice concerning means
which might be employed to combat the organizational efforts, and thereafter a
campaign was formulated to defeat the Union . Canada, Mattingly , and Gray par-
ticipated in the campaign . The Union filed its petition on January 15, 1962, a
stipulation for certification upon consent election was approved by the Regional
Director on January 26, and an election was conducted on February 2 .2
Three witnesses for the General Counsel , employees Barnes, Hamilton , and Burnett,
credibly testified that for a period of several weeks before the election , Mattingly
and Gray asked them almost daily if they had received any outside mail or outside
visitors? Mattingly testified the purpose of the questioning was her means "of
opening up conversations" with the employees , and she admitted that the mail she
was inquiring about were letters which employees received from the Union.
1. Claudine Barnes
Barnes who worked under Mattingly 's supervision, testified that about 2 weeks
before the election Mattingly told her that the Union could not do the employees
any good . When Barnes asked why this was so, Mattingly replied "Well, they are
always out on strike 114
Barnes testified also that on January 29 and 30 she talked several times with Plant
Manager Canada. We will consider first Barnes ' testimony concerning these con-
versations , and thereafter Canada's versions. According to Barnes , on January 29
Canada talked to her at her machine, and the following colloquy ensued : Canada
asked her "how the election was coming out Friday ." Barnes replied that she
didn't have the "slightest idea." Canada inquired , "You don 't have the slightest idea?"
Barnes replied, "No ," and Canada asked if she "had made any progress on Sunday
afternoon ." (On Sunday afternoon Barnes had accompanied Union Representative
Moss on visits to employees of Respondent .) Barnes replied that she had not gone
"out to make any progress " and that she "had been told so many lies " that she had
gone "out to find out for" herself. Later the same day Canada came back to Barnes
at her machine and another conversation ensued. According to Barnes , Canada
stated that the Union could not do her any good, could not get her any higher
wage rates, could not lower production rates, and that if the Union won the election
it would duck out and leave the employees holding the bag and lose all interest in them
from then on. Canada asked Barnes how she was going to vote, to which she
replied that she did not know . Canada stated that there was something he wanted
2 The foregoing findings are based on undisputed and uncontradicted evidence
3 Mattingly and Gray admit frequent questioning of all the approximately 20 em-
ployees under their respective supervision about outside mail, but deny they asked about
outside visitors . For reasons stated herein I discredit Mattingly and Gray.
4 I discredit Mattingly 's denial of this conversation for reasons stated herein.
E-TOWN SPORTSWEAR CORP. 483
to ask her to do for him but that he was not allowed to ask her. However, he then
inquired whether she would "come in in the morning and tell those girls not to vote
in the election," adding that if she would do so "there won't be an election." Barnes
asked, "Do you think I am strong enough that the girls would believe anything
I would tell them?" Canada replied that he believed she was. Further Canada
asked her why people wanted the Union, if the employees had anything against
him, and if there was "something he had done." Barnes replied that so far as she
knew it was nothing he had done, and asked if he wanted her opinion. Canada said
that he did, and Barnes said that production rates were too high. Canada stated that
she would have to trust him, that maybe production rates were high and something
might be done about it, but that he could not promise her. Canada asked her to
think about it and to tell him the next day how she would vote. Barnes replied
that she would let him know when she had decided.
The following day, according to Barnes, Canada approached her again and in-
quired if she had thought the matter over. She replied that she had, but had not
made up her mind, and that she had heard rumors that employees would be fired if
they voted for the Union. Canada replied that no one would be fired if they voted
for or against it, but "there are other things that I can fire you for." Further, he
said that "she still had time to come on over to the winning side of the team."
Canada stated that the plant would not close down if the Union came in or did not
come in, but that "if he didn't have any orders, he could close the plant down."
Barnes asked Canada if the Union could get him orders and Canada replied that he
would not accept them because it would be shoddy material and he was running a
quality shop. Canada stated at this point that he would not bother her any more,
that he had been "hounding her for two days." However, he then asked Barnes to
tell him which way she was going to vote if she made up her mind before the elec-
tion. She replied that she did not think she would make up her mind until she was
in the voting booth. Canada stated that everybody knew she was for the
Union because "out of the whole factory she was the only one that had stepped
forward "
Turning to Canada's testimony, he denied asking Barnes or any other employee
how the election was coming out, or asking Barnes if she had made any progress
Sunday afternoon, or how she would vote. Further, he denied asking her to tell
the employees to vote against the Union or asking why the employees wanted a
union. Canada admitted, however, that he had a conversation with Barnes in which
he asked if he was the reason the employees wanted a union and that she replied "she
didn't know," following which he asked her to think about it and if she could think
of any reason to let him know. Canada denies that he told Barnes to think it over
and let him know the next day how she would vote and that he asked her the next
day if she had thought it over. But Canada admitted telling Barnes, when she re-
ferred to having heard employees would be fired if they worked for the Union, that
nobody could be fired for that reason . He told her, however that employees could
be fired for absenteeism , production, and "things of that nature." Canada denied
that this was said "in any connection with the Union" and testified that he made the
remark because this was a new company, he was new, and he wanted to establish
some policies and let people know what they were. Canada also denied telling Barnes
or any other employee to come over to the winning side, but he acknowledged a
conversation with Barnes or "some employee" in which he said that the plant would
not close down if the Union came in but that it could close for lack of orders. Fur-
ther, Canada denied telling Barnes that he had hounded her enough, he denied too
that he asked her if she had made up her mind how she would vote to let him know
and that he told Barnes that everybody knew she was for the Union, that she had
"stepped out" and shown she was for it.
In its brief, Respondent asserts that Barnes should be discredited because her
testimony is a verbatim account of the affidavit given to a Board agent . I have care-
fully compared her testimony with her affidavit and conclude that, while they are
substantially similar, there are sufficient differences to demonstrate that her testimony
was not memorized or a verbatim account of her affidavit. Resolving the credibility
of witnesses is usually a difficult and trying task. In resolving credibility in this in-
stance, as well as all other instances in this report, I have attached great weight to
the impressions and reactions I received from a careful scrutiny of the witnesses.
Barnes impressed me as a truthful and honest witness. In addition, she withstood a
long, searching cross-examination by a very skillful attorney without substantial
changes in her testimony. On the other hand, Canada gave inconsistent testimony
and impressed me as a witness who was careful to admit only what he thought would
not harm his Employer, rather than disclosing the true facts as he knew them.
708-006-64-vol. 141-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Canada's denial that he told Barnes that everybody knew she was for the Union
is inherently inconsistent with his admitted statement that he asked her if he was
the reason employees wanted a union . In my opinion , Canada would not have asked
Barnes the question unless he thought that she was a union adherent . Moreover,
I reject as unreasonable Canada's assertion that his motive for telling Barnes about
other reasons for discharging employees was to acquaint her with company policy.
I credit Barnes and discredit Canada, and I find that Canada substantially made the
statements attributed to him by Barnes . In addition , I find that Canada's inquiry
concerning Barnes' progress on Sunday afternoon was designed to impress on her
his knowledge of her union activities that day.
2. Rosa Carr
Carr worked under the supervision of Floorlady Gray. Carr testified that Gray
had conversations with her about the Union commencing several weeks before the
election and continuing to the last of January 1962; that these conversations were
held almost daily at her machine; and that Gray stated that the Union was "no good"
and "we don't need a union." In addition she told Carr that "when we ran out of
our particular job we would be sent home" instead of being transferred to another
job. Carr testified the practice was to transfer an employee to another job when
"work would slack down." Carr further testified that several days before the elec-
tion, Gray asked her if an employee named Kelley Frost was "Union," and that Carr
replied that she did not know. A day or so after this conversation, according to
Carr, Gray advised she still had time to change her mind if she signed a card. In a
subsequent conversation, according to Carr, Gray told her that "some girls were
going to be mighty embarrassed, after sitting there and denying being for the Union
and then they would have to stand up and say they were for it." During this con-
versation Gray stated that other girls had been talked to and had changed their minds
and that an employee named Ricky Shelton is one who had changed her mind. On
cross-examination Carr added to her direct testimony about her conversations with
Gray by stating that Gray asked her if she had gotten any mail; that she replied,
"Why, was I supposed to?"; and Gray answered most of the girls had received mail.
Floorlady Gray testified she had conversations about the Union with employees
working under her supervision on a daily basis. Further, she testified that she had be-
longed to a union at another plant and this fact was a subject of conversation with
employees quite often. Gray admitted asking all 22 people who worked under her
if they had received any mail She specifically admitted asking Carr if she had gotten
any mail , and telling Carr and other employees that if they had signed cards it was
not too late to change their minds . Further, Gray admitted telling Carr that other
girls had changed their minds and "she could to." She admitted too having identified
Ricky Shelton to Carr as an employee who had changed her mind. Gray denied
telling Carr that unions were "no good ," talking to her about the Union , and about
sending girls home when they ran out of work, and she denied asking Carr if Kelley
Frost was for the Union.
On cross-examination Gray testified she had belonged to two unions for approxi-
mately 4 years , and had attended union meetings once a month . She testified that
she did not recall , however , the name of either union to which she had belonged.
In its brief , Respondent contends that Carr should be discredited because there is
no reference in her affidavit to Gray's asking about mail . The affidavit does not con-
tain such a reference; however, Gray specifically admitted asking Carr about mail.
In support of this contention , Respondent urges that Carr's testimony about the affi-
davits and statements she had signed prior to the hearing, demonstrates her unre-
liability. Although Carr displayed some confusion about this matter , I am convinced
that she was honestly confused and did not so testify as a result of being unwilling
to be truthful. Carr impressed me as a witness who was at all times doing
her best to give truthful testimony. On the other hand, I find incredible Grav's testi-
mony that she could not recall the name of either union she had belonged to for
several years. Further, Gray gave evasive and contradictory answers on cross-
examination in her efforts to make it appear that her inquiries of employees about
mail were unrelated to union activities . I do not credit Gray's denials , and I find
that she made the statements attributed to her by Carr.
Can testified that she had a conversation with Canada at her machine a day or so
prior to the election, that he asked her how the Union was going, that she replied that
he did not think he had anything to worry about, and that Canada replied "good " I
have previously discredited Canada, and do not credit his denial of this conversation.
I find that the conversation occurred as testified to by Carr.
E-TOWN SPORTSWEAR CORP. 485
3. Catherine Muhlher
Muhlher worked under the supervision of Floorlady Mattingly . Muhlher testified
that a week or two before the election Mattingly asked her if she were "interested in
the Union, against the Union or for the Union." Further, she testified that on the
day before the election, Mattingly brought a sample ballot to her, pointed to the "no"
box, and told her "This is the one you mark tomorrow."
When questioned by the Union's attorney, Muhlher testified that her best recollec-
tion was that Mattingly asked her about her interest in the Union 2 or 3 days before
the election. On cross-examination she testified that it could have been a week be-
fore the election, or 2 or 3 days, that she could not remember exactly. On the other
hand, Mattingly denied ever talking with Muhlher when the Union was discussed, and
she denied the statement attributed to her by Muhlher about the sample ballot.
Mattingly was evasive on cross-examination, particularly about her inquiries of
employees about mail. She impressed me as being careful not to give answers which
she thought would be harmful to her employer, rather than testifying in a frank and
open way. Thus she contradicted her own testimony about her inquiries of employees
concerning mail stating on the one hand that she was asking about "any mail" and,
on the other hand, testifying that it was "union" letters she was asking about. Muhl-
her testified in a candid way and I credit her testimony. I find that Mattingly made
the statements attributed to her by Muhlher and that Mattingly instructed Muhlher
to vote against the Union.
4. Katherine Sherrard
A week or two before the election, Canada talked to Sherrard near her machine.
Canada told her that "he had talked to a lot of the girls and they had already changed
their minds about the cards that had been signed, and that it wasn't too late for me to
come over on their side of the fence." Sherrard asked him whose side he thought she
was on and he said that he did not know but "to come over on his side and let them
know." Further, Canada said that if the Union lost she would lose her friends and
get disinterested in her work, and eventually quit her job. The quoted testimony
is that of Sherrard. Canada admitted that this conversation occurred substantially as
Sherrard had related it.
Sherrard, who worked under the supervision of Gray, testified that a week or two
before the election, Gray asked her what she thought about the Union. Sherrard also
testified that on the morning of the election, Gray brought a paper around and read
to her as follows: "The Company will not be responsible for work lost during strikes."
Gray admitted carrying the paper around, but stated this occurred on the day before
the election. Gray denied, however, asking Sherrard what she thought about the
Union.
In its brief , Respondent contends that Sherrard should be discredited because her
affidavit contains no reference to the conversation with Gray wherein Gray ques-
tioned her as to what she thought about the Union. There is nothing in the affidavit
that recites that the affiant had only one conversation with Gray . It is not unusual for
witnesses to testify to matters in addition to those contained in their affidavits, and
there may be several reasons why the particular conversation is not referred to in the
affidavit. One of these many reasons might be the fact that the charge had not been
filed when the affidavit was taken. The stipulation for certification was signed on
January 26, 1962, and the investigating Board agent may have restricted his inquiries
to events occurring after that date. In any event, Sherrard impressed me as a reliable
witness, and I attach no significance to the omission of any reference to this conversa-
tion in the affidavit . On the other hand , I have previously found Gray 's testimony
unreliable. I credit Sherrard and discredit Gray.
5. Betty Burnett
Burnett worked under the supervision of Floorlady Mattingly . Burnett , as referred
to above, was another employee who was frequently questioned by her supervisor
during the 2- to 3-week period prior to the election about outside mail or visitors.
During these conversations with Mattingly , according to Burnett , on at least one occa-
sion , Mattingly asked her how she felt the election would go, and on at least one
occasion asked her how she felt about the Union . Burnett did not fix the dates of these
conversations with specificity. She testified also that the first part of the week the
election was held, Mattingly asked her if the Union would get in. Mattingly substan-
tially denied the conversations as related by Burnett.
In its brief, Respondent contends that Burnett should be described because of eva-
sive and self-contradictory testimony and her behavior on the witness stand . Burnett
did not testify with specificity , particularly as to the dates on which conversations
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred. In my opinion, these conversations having occurred so frequently would
make it difficult to fix the dates with precision. Burnett was belligerent and somewhat
reluctant to answer questions on cross-examination. I am persuaded, however, that
she testified truthfully. This conclusion is reinforced by the fact that other witnesses
testified credibly that Mattingly and Gray asked them substantially the same ques-
tions. I have previously found Mattingly's testimony unreliable. I credit Burnett and
find that the conversations occurred substantially as she testified.
Burnett testified that a week or a week and a half before the election Canada asked
her what she thought about the Union. In addition, she testified that on the morning
of the election Canada came by where she was working and asked her if she had slept
well, that within a few minutes she went into Canada's office and asked him what he
meant by what he had said to her, that he replied that he had meant it as a joke and
added he had heard that Burnett and others had been at Barnes' house along with the
union representative but that he did not know why they had been there. Burnett testi-
fied further that she asked if she could be fired for having been at Barnes' house when
the union representative was there, and that Canada replied that no one could be fired
for being for or against the Union but that "there were other ways of discharging peo-
ple, such as people being unhappy and production falling down."
Canada denied asking Burnett what she thought about the Union. With respect
to the conversations on the day of the election, he testified that he did pass by her
machine and ask her if she had slept well the night before, that a few minutes later
in his office he told Burnett that he did not mean anything by this inquiry, that he
had asked a number of employees the same question, and that it was just a "courtesy
statement " At that point, according to Canada, Burnett said that she must have
misunderstood him because she thought he was referring to her having been with
some people from out of town that night, and that he replied, "No." Canada ad-
mitted telling Burnett that she would not be fired for voting for the Union but people
could be fired for low production or excessive absenteeism.
Burnett's version of the conversations the morning of the election has the ring
of truth whereas Canada has previously been discredited and his version of this
conversation impresses me as implausible. I credit Burnett's version and find that
Canada's inquiry the morning of the election was designed to impress on Burnett
that he was aware of her union activities the previous night. I also credit Burnett's
testimony that a week or so before the election Canada asked her what she thought
about the Union.
CONCLUDING FINDINGS
I find Respondent violated Section 8(a)(1) by:
1. The interrogation by Supervisors Mattingly and Gray of all the employees
working under their supervision about receiving outside mail and their additional
inquiries of Barnes, Hamilton, and Burnett about outside visitors. Such widespread
interrogations, standing alone, constitute unfair labor practices. Cf. Petroleum
Carrier Corporation of Tampa, Inc., 126 NLRB 1031. Moreover, the interrogations
were intended to initiate conversations in which the Respondent would ascertain
the sentiments of its employees concerning the union's organizational campaign.
2. Canada's asking Barnes if "she had made any progress on [the] Sunday
afternoon" that Barnes had visited employees in the company of the union repre-
sentative, thereby creating the impression that her union activities were under
surveillance by Respondent.
3. Canada's inquiry of Burnett if she had slept well and his statement to her that
he had heard that she and others were at Barnes' house with the union representative,
thereby creating the impression that her union activities were under surveillance by
Respondent.
4. Canada's attempt to enlist the service of Barnes in persuading employees not
to vote in the election.
5. The several instances of interrogation of Barnes by Canada as to how she
intended to vote in the election and why employees wanted the Union.
6. Canada's threats to Barnes and Burnett that employees would not be discharged
for supporting the Union but that there were other reasons for which Respondent
could terminate undesirable employees. Cf. Hoffman-Taff, Inc., 123 NLRB 1462,
enfd. as modified 276 F. 2d 193 (C.A. 8).
7. Canada's threat to Barnes that the plant would not be closed if the Union
were successful, but it could be closed for lack of orders. I believe this statement
was designed, especially in the context in which it was uttered, to impress on Barnes
that Respondent could seize upon the pretext of insufficient orders to close the plant
if the Union should win the election. If Canada had intended only to assure Barnes
that she need not fear retaliation for supporting the Union, he would not have referred
to insufficient orders as a basis for closing the plant.
E-TOWN SPORTSWEAR CORP. 487
8. Gray's statements to Carr that employees who ran out of work would be sent
home instead of being transferred to other jobs in context with Gray's statements
of opposition to the Union. In find this to be an implied threat to discriminatorily
change company practice if the Union were successful.
9. Gray's inquiry of Carr whether Kelley Frost was "union."
10. Canada's inquiry of Carr concerning the progress of the Union.
11. Mattingly's inquiry of Muhlher if she was interested in the Union.
12. Mattingly's instruction to Muhlher to vote against the Union when Mattingly
showed a sample ballot to her.
13. Gray's questioning of Sherrard concerning what she thought about the Union.
14. Mattingly's questioning of Burnett as to how the election would go, how she
felt about the Union, and if the Union would get in .5
15. Canada's inquiry of Burnett concerning what she thought about the Union.
In his brief, General Counsel contends that Canada's statements to Sherrard are
violative of the Act. I find these statements do not contain threats of action by
Respondent adverse to the employee, and therefore are not coercive. Similarly, I find
noncoercive Canada's statements to Barnes about the Union losing interest in the
employees if it won the election.
General Counsel contends that Respondent's statement to employees, "The Com-
pany will not be responsible for work lost during strikes," is violative of the Act. The
basis of this contention apparently is that the statement constituted an implied threat
that Respondent would refuse to bargain with the Union if it should win the elec-
tion, thereby forcing a strike and resulting in loss of work for employees. The state-
ment goes no further than to assert what Respondent lawfully could do in event of a
strike, i.e., not pay striking employees. I find the statement insufficient to make the
inference that General Counsel urges. Further, I reject the similar contention that
Mattingly's conversation with Barnes, wherein she told Barnes that the Union was
always out on strike, is violative.
B. The objections to the election
By the conduct set forth in paragraphs numbered 1 through 10 above and the
portion of paragraph numbered 14 as indicated above, Respondent created an atmos-
phere of fear of reprisal which interfered with the employee's freedom of choice in
the selection of a bargaining representative. This conduct was resorted to by Re-
spondent, I find, in order to coerce employees from union membership, sympathy,
and affiliation, and to frustrate the Union in its prelection efforts.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
-connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(a) (1) of the Act, I will recom-
mend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. In view of the variety and scope
of acts of interference, restraint, and coercion committed by Respondent, I shall
recommend a broad cease-and-desist order against interference in any manner
with the employees' rights guaranteed in Section 7 of the Act. Cf. Hendrix Manu-
facturing Company, Inc., 139 NLRB 397. I shall also recommend that the election
be set aside and another be conducted at such time as may be appropriate.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
6I find that only the last inquiry was established by the evidence to have been made
after execution of the stipulation for consent election. American Molded Products Co ,
134 NLRB 1446.
BThe conduct in paragraphs numbered 11, 13, 15, and portions of 14, is excluded be-
cause the evidence is insufficient to establish that it occurred after execution of the stipu-
lation for consent election. American Molded Products Co., supra The conduct in para-
graph 12 is excluded because it is not within the issues delineated by the Board's "Order
Directing Hearing " Similarly, I reject as not within the issues the Union's contention
in its brief that Respondent violated the Board's "twenty-four hour" rule.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Sec-
tions 8 (a)(1) and 2( 6) and (7) of the Act.
RECOMMENDED ORDER 7
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent, E-Town Sportswear, Corp., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from
(a) Interrogating any of its employees with respect to their views concerning, or
sympathies for, Amalgamated Clothing Workers of America, AFL-CIO, or any
other labor organization.
(b) Creating the impression of surveillance of the union activities of its em-
ployees; attempting to persuade any of its employees to tell other employees not to
vote in the election; threatening its employees with discharge, closing the plant,
changes in company policies about transfers, or other reprisals if the Union should
win an election ; and instructing its employees to vote against the Union.
(c) In any other manner interfering with , restraining or coercing its employees in
their right to self-organization , to form labor organizations , to join or assist the
Union or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as authorized in Section 8(a)(3) of the
Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post at its place of business, copies of the attached notice marked "Ap-
pendix." 8 Copies of said notice, to be furnished by the Regional Director for the
Ninth Region, shall, after being duly signed by the Respondent's representative,
be posted by it immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees customarily are posted. Reasonable steps shall be taken by the Re-
spondent to ensure that said notices are not altered, defaced, or covered by any
other material .9
7 At the hearing and in his brief, counsel for the Union requested that Respondent be
ordered to bargain with the Union if violations of Section 8(a) (1) were found General
Counsel does not seek such an order. During the hearing, I rejected evidence offered by
the Union with respect to this request because (1) neither charge nor complaint alleged
violations of Section 8(a) (5) ; (2) General Counsel did not join in the request, and
(3) the Union's position contained a basic inconsistency, Ie, the Union in seeking such
an order necessarily must urge there is no question concerning representation whereas its
pending petition and request for a new election presuppose an unresolved question con-
cerning representation. Subsequent to the hearing, I was advised by the Acting Regional
Director that the Union had filed an 8(a) (5) charge. Subsequently, the Union, in a letter
accompanying its brief to me, stated that it had withdrawn the charge because action
thereon would have been barred by Section 10(b) of the Act I deny the Union's request
Cf Rea Construction Company, 137 NLRB 1769; Arts & Crafts Distributors Inc, 132
NLRB 166; see also opinion of Member Fanning in International Hod Carriers' Building
and Common Laborers' Union of America, Local 840, AFL-CIO (Charles A Blinne, d/b/a
C A Bhnne Construction Compaiin), 135 NLRB 1153, footnote 318
8 In his brief, General Counsel requests that Respondent be required to mail copies of
the Appendix to emplovoes at their home addresses In my opinion the usual postine of
notices is sufficient under the circumstances of this case, but cf Darlington Manvfaetar-
ing Company, at al, 139 NLRB 241.
8If this Recommended Order should be adopted by the Board, the words "As ordered
by" shall be substituted for "As recommended by a Trial Examiner of" In the notice In
the further event that the Board's Order be enforced by a United States Court of Appeals.
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order of" shall be substituted for "As ordered by."
ACE COMB COMPANY & ACE BOWLING COMPANY, ETC. 489
(b) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order and report on objections,
what steps the Respondent has taken to comply herewith.
It is further recommended that the Board set aside the election conducted on
February 2, 1962, and direct a new election at an appropriate time pursuant to the
stipulation for certification upon consent election.
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
we are posting this notice to inform our employees of the rights guaranteed them
by the National Labor Relations Act:
WE WILL NOT interrogate any of our employees with respect to their views
concerning, or sympathies for, Amalgamated Clothing Workers of America,
AFL-CIO, or any other labor organization.
WE WILL NOT create the impression of surveillance of the union activities
of our employees; attempt to persuade any of our employees to tell other
employees not to vote in an election; threaten our employees with discharge,
closing the plant, changes in our policies about transfers, or other reprisals if
the Union should win an election; or instruct our employees to vote against
the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist the above-named Union or other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as
authorized by the National Labor Relations Act.
E-TOWN SPORTSWEAR, CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone No. Dunbar
1-1420, if they have any questions concerning this notice or compliance with its
provisions.
Ace Comb Company and Ace Bowling Company, Division of
Amerace Corporation and United Rubber , Cork , Linoleum
and Plastic Workers of America, AFL-CIO. Case No. 26-CA-
1286. March 14, 1963
DECISION AND ORDER
On December 20, 1962, Trial Examiner Owsley Vose issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
141 NLRB No. 35.