G. H. Hess, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1949

82 N.L.R.B. 463 (N.L.R.B. 1949)

In the Matter of G. H . HESS, INCORPORATED, EMPLOYER and INTER-
NATIONAL LADIES' GARMENT WoRSERS ' UNION, AFL, PETITIONER
Case No. 6-RC-31
SUPPLEMENTAL DECISION
AND
ORDER
March 29, 1A P
Upon objections filed by the Employer to Conduct of the Election
and Conduct Affecting the Results of the Election' held on April
12, 1948, pursuant to a Board Decision and Direction of Election,'
a hearing was held before W. G. Stuart Sherman, hearing officer, on
July 21, 1948. The case was thereupon transferred to the Board.
However, inasmuch as the record presented conflicting testimony, the
credibility of which could best be resolved by the hearing officer from
his observation of the witnesses who testified, the Board remanded the
case to the Regional Director for a Report and Recommendations by
the hearing officer.
On November 22, 1948, the hearing officer issued his Report on
Findings of Fact and Recommendations, a copy of which is attached
hereto, in which he found that the Employer's objections were without
merit and recommended their dismissal. Thereafter the Employer
filed Exceptions to the Report.
The Board has reviewed the rulings made by the hearing officer
and finds that no prejudicial error was committed. The rulings are
hereby affirmed except as noted below .3 The Board has considered
i The Union won the election by a vote of 25 to 11.
Matter of G. H . Hess, Incorporated , 76 N. L. R. B. 838.
At the hearing, counsel for the Union questioned Employer witnesses as to whether
they became afraid as a result of the statements allegedly made by the union representa-
tives and whether such statements affected their vote. The Employer objected to this
line of questioning on the grounds that it called for an answer which would violate the
secrecy of the ballot and put in issue an irrelevant consideration , 1. e., the effect of the
alleged coercion rather than the coercive character of the statements per se The bearing
officer overruled the objection and, in the Report, made findings predicated upon the
replies of the witnesses that they had not been coerced by the statements of the union
representatives but in fact had exercised a free choice as to bargaining representative.
We find merit in the Employer ' s exception . However , in view of our ultimate disposition
of the issues involved herein, we find that the ruling of the hearing officer though error,
was not prejudicial to the Employer.
The determination of whether statements are coercive does not depend on whether
they have had the intended effect, or upon the subjective state of mind of the hearer. In
82 N. L. R. B., No. 52. 463
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Report on Findings of Fact and Recommendations, the Exceptions
filed by the Employer, and the entire record in this case and, unlike
the hearing officer, finds merit in some of the Employer's objections.
The Employer excepts to the hearing officer's findings on the ground
that the Union engaged in conduct which interfered with the em-
ployees' freedom of choice in the election. It points, in this con-
nection, to the several acts of the union representatives characterized
by it as electioneering, i. e., the distribution of leaflets in front of the
plant and the possession of leaflets in the plant on the day of the elec-
tion, and the visit of Lewis and Jaffee to the plant shortly before the
election.' The Employer also relies on the various remarks of union
representatives and employees made to prospective voters shortly be-
fore the election. Among these are Lewis' remark to employee Basnett
on April 9, 1948, 3 days before the election that, If you don't vote for
the Union the girls will refuse to work with you"; and Lewis' request
to Basnett that "When four o'clock [quitting time on the day of the
election] comes, to keep from causing hard feelings, will you put your
hat and coat on and walk out of the factory?" as underscored by the
further statement that "There has been a lot of rough stuff at these
union elections."
We adopt the hearing officer's finding that the activities of the union
representatives characterized as electioneering did not deviate suffi-
ciently from the Board's rules for the conduct of elections to justify
setting the election aside.-' Nor does the mere possession of union
leaflets in the plant constitute electioneering. Similarly, except as to
the statements by Lewis to Basnett, we find, as did the hearing officer,
that the statements adverted to by the Employer do not constitute a
unfair labor practices cases involving analogous circumstances , we have held that the
test of interference , restraint , and coercion under Section 8 (1) of the Act does not
turn upon the success or failure of the attempted coercion ; rather the applicable test is
whether the Employer engaged in conduct which , it may reasonably be said , tends to
interfere with the free exercise of the employee rights under the Act. Matter of Sewell
Manufacturing Company, 72 N L R. B. 85, 87 ; enf'd. as modf 'd., 172 F. ( 2d) 459 (C. A.
5), Matter of The Pure Oil Company, 72 N. L. R. B. 1, 3 and cases cited therein More-
over, questions as to whether an employee ' s vote was in fact affected by antecedent con-
duct or statements would, if permitted to be answered , lead to interferences as to how
the employee voted and thus impair the secrecy of the ballot. Accordingly, we hereby
overrule the hearing officer and set aside the findings in the Report predicated upon the
inadmissible testimony.
9 The Employer excepts to the statement in the hearing officer's report that the Employer
introduced testimony as to the visit of Lewis and Jaffee to the plant without filing a sup-
porting objection . The record shows that the Employer alleged the events in question
as part of objection 1. Accordingly, the hearing officer 's report is hereby corrected to con-
form with this finding.
5 The Employer contends that the electioneering in this case is comparable to that found
objectionable by the Board in Matter of Detroit Creamery Company, 60 N. L. R. B. 178.
However, that case is clearly distinguishable on the facts. In that case , unlike this
case, the union representative stationed himself during the election at a point in the
plant where the employees would have to pass him on the way to the balloting room.
Moreover, we further found that from this position the union representative conversed
with employee's on matters related to the election.
G. H. HESS, INCORPORATED 465
basis for voiding the election. We do, however, find merit in the
Employer's objection to the conduct of Lewis vis ca vis Basnett and do
not adopt the hearing officer's finding, in that connection, that the
statements made by Lewis to Basnett "were too remote from the election
to have any possible effect on the vote."
Rather do we find that the utterance of Lewis to Basnett, 3 days
before the election, If you don't vote for the Union the girls will
refuse to work with you," conveyed a threat of economic reprisal, i. e.,
that Basnett would, through the efforts of the Union, be deprived of
her job should she vote against the Union. We vigorously disagree
with our dissenting colleagues that this statement amounted to no
more than a mere expression of an intent to strike, an expression which
we would hold protected as free speech just as zealously as our col-
leagues. Employees do not stop to look for subtle interpretations or
hidden meanings in statements which on their face are reasonably
susceptible of coercive implications. The test, as this Board has
recently had occasion-to note," is whether the statement was reasonably
calculated to have a coercive effect on the listener. In the context in
which the statement by Lewis was made, it was reasonably calculated
to convey to Basnett the threat that the employee members of the Union
would make it intolerable for Basnett to continue in her job. We are
of the opinion that this statement was reasonably calculated to restrain
and coerce Basnett in the exercise of a free choice of bargaining repre-
sentative and, as such, exceeded the permissible bounds of union
preelection activities.
As already noted, Lewis coupled this threat of economic reprisal if
Basnett should vote against the Union, with a request that Basnett not
vote at all, underscoring his remarks by pointing out that, "There has
been a lot of rough stuff at these union elections." 7
We are of the opinion that these additional statements were reason-
ably calculated to coerce and intimidate Basnett by the prospect of
bodily harm should she fail to heed the advice of Lewis to stay away
from the polls. While it is true that Basnett did in fact vote, we can-
not assume that less stout-hearted employees would not have refrained
from casting their ballot as a consequence of such intimidatory utter-
ances. Indeed, as shown above, the test is whether the conduct or
statements are reasonably calculated to interfere with the employees'
exercise of freedom of choice. Furthermore, we cannot assume, under
the circumstances, that Basnett's vote actually represented a free and
uncoerced choice for or against a bargaining representative.
Matter of Smith Cabinet Manufacturing Company, Inc., 81 N. L. R. B. 886.
' The hearing officer inadvertently failed to find that, as the record shows, Lewis made
this statement to Basnett.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An election serves its purpose only if it affords an opportunity for all
employees to register a free and uncoerced choice of bargaining repre-
sentative. Manifestly, this purpose has failed of achievement where,
as here, an employee has been the object of threats of bodily harm
designed to thwart the exercise of a basic right guaranteed by the Act,
i. e., the right to cast a ballot for or against a bargaining representative.
We would be derelict in our duty, indeed, if, under these circumstances.
we did not safeguard this right.
We find, therefore, that all the aforementioned statements of Lewis
to Basnett shortly before the election were, by their very nature,
coercive in character and so related to the election in time or other-
wise as to have had a probable effect upon the action of the employees
at the polls." Consequently, it cannot be said that the results of the
election of April 12, 1948, reflected the employees' free and uncoerced
choice of bargaining representative. For these reasons, we sustain
the foregoing objection of the Employer to the conduct of the election
and shall set aside the election of April 12, 1948. We shall direct a
new election at such time as the Regional Director advises us that the
circumstances permit a free choice of bargaining representative among
the employees concerned herein.
ORDER
IT IS HEREBY ORDERED that the election held on April 12, 1948, among
the employees of G. H. Hess, Incorporated, of Wheeling, West Vir-
ginia, be, and it hereby is, set aside.'
CHAIRMAN HERZOG, concurring :
I join in setting this election aside for one reason and for one reason
alone. But the episode that provides that reason is enough.
I refer to the credited testimony that Union Organizer Lewis told
Mrs. Basnett to leave the premises before the balloting began, adding
that "there has been a lot of rough stuff at these union elections." The
secrecy of the polling booth may in some situations protect the free
exercise of will by an employee who is told, even under pain of reprisal,
to vote a certain way, because no one can discover how he cast his ballot.
But threats calculated to keep employees from coming to the polls to
exercise the franchise may never be tolerated by this Board, whatever
their source and whatever their effect. For the employee who hears
an admonition not to vote at all, backed by a threat, cannot rely upon
8Matter of Lafayette National Bank of Brooklyn, New York, 77 N. L . It. B. 1210;
cf., Matter of NAPA New York Warehouse, Inc., 75 N. L. R. B. 1269 ; Matter of Maywood
Hosiery Malls , Inc., 64 N. L. It. B. 146.
9 Chairman Herzog, in concurring separately in the direction that the election be set
aside, relies exclusively upon the single episode set forth in his concurring opinion. The
Chairman finds no merit in the other ground upon which this Order is based.
G. H. HESS, INCORPORATED 467
the shield provided by the secret voting machinery of the Board. If
he merely ventures to approach the polling place, he will have dis-
regarded the admonition and opened himself to possible reprisal.
It was for this reason, among others, that this Board decided at the
threshold of its history that representation elections should be de-
cided by a majority of those actually voting rather than a majority of
those eligible to vote.10 Otherwise employees could have been re-
strained from casting their ballots in accordance with their true de-
sires, by the fear that interested parties would both influence and
ascertain their attitude by first urging them to keep away from the
polls and then conspicuously observing whether or not they had
done so.
Experience in the breakdown of democratic processes throughout the
world amply demonstrates the danger of permitting any individual or
group to use force or threats of force to discourage men and women
from appearing at the polling places to cast their votes. The fact
that a ballot may be secret when cast and counted gives little comfort
and less assurance to the citizen or employee who dares not cast any
ballot at all.
MEMBERS HOUSTON and MURDOCK, dissenting :
The implications of one portion of the decision of our colleagues,
Reynolds and Gray, are so disturbing that we must record our dis-
agreement with them. We believe also that the single episode relied
upon by the Chairman in his concurring opinion has none of the
dangerous attributes with which he has chosen to endow it.
We should have thought that the privilege, so firmly embedded in
the traditions of trade unionism and so commonly asserted by work-
ing people, to refuse to work with those who do not share their views
on the value of collective bargaining would, by this time, have gained
a measure of recognition. Consequently, we are at a loss now to
understand how a commonplace reference to the privilege in the usual
context-a preelection statement of Organizer Lewis to employee
Basnett that the girls would refuse to work with her if she did not
vote for the Union-suddenly assumes for our two colleagues the sin-
10 Matter of R. C. A. Manufacturing Company, 2 N. L. R . B. 158 , 171 if. In rejecting
proposals that majorities requisite for certification after Board elections be tested against
the number eligible or the percentage of that total who came to the polls, our predecessors
said in 1936:
Such an interpretation defeats the purpose of the Act by placing a premium upon
tactics of intimidation and sabotage . Minority organizations merely by peacefully
refraining from voting could prevent certification of organizations which they could
not defeat in an election . Even where their strength was insufficient to make a
peaceful boycott effective , such minority organizations by waging a campaign of
terrorism and intimidation could keep enoughaemployees from ,participating to thwart
certification . Employers could adopt a similar strategy and thereby deprive their
employees of representation for collective bargaining . (p. 176.)
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ister stature of coercion. We believe that our two colleagues, in
adopting this view, have misdefined the term "coercion." They con-
clude that Lewis' statement is coercive because, if its prediction were
to become a reality, its reasonable consequence might involve economic
disadvantage to Basnett. But such a view totally ignores the hard
fact that even the clearest kind of protected concerted activity fre-
quently involves economic loss to non-participants. If we are now
to condemn as coercion statements of the character of Lewis' observa-
tion, we must recognize that the inevitable result will be to inhibit the
calling of any strike however lawful its purpose. Our colleagues leave
us no alternative but to vigorously reject this startling doctrine.
We find a further serious objection to our colleagues' decision. By
giving a coercive aspect to Lewis' statement in these circumstances,
we believe our colleagues have created a fundamental imbalance be-
tween what is permitted as free speech to an employer as against what
is granted to employees. For Lewis' statement, stripped of its refer-
ence to personalities, amounts to a warning that a union defeat at the
polls would result in a refusal to work by union adherents, the sig-
nificance being, of course, economic loss to the employees. Our two
colleagues say that this kind of statement is not privileged as free
speech. Strangely enough, however, this Board has granted immu-
nity to an employer who points out to his employees, on the eve of an
election, that if they join the Union a strike might be necessary to
enforce union objectives, with the result that they would suffer
economic loss."
Both statements-that of the Union Organizer and the Employer-
involve a prediction of economic harm as a result of union activity.
Yet we are given no valid basis for distinguishing between them and
are asked to strike one down when we have already upheld the other.
We believe this is to manifest a disparity to be rationalized.
n Matter of Mylan -Sparta Company , Inc., 78 N. L. R. B . 144. In the cited case the Em-
ployer included the following language in a newspaper advertisement entitled "Unions
Are Objectionable Because" :
Unions cause trouble for employees through strikes and production slow downs.
Don't let anyone tell you unions do not strike-that is the way they make their
living. Wages depend upon production . Wages must go where production goes-up
or down . When unions cause slow downs, wages go down . When unions strike, wages
disappear. Union never gave anyone in White County a job. Our history shows
that unions caused our people to lose jobs.
The Board , in rejecting the Trial Examiner's finding of coercion based on this and other
comments of similar tenor , concluded that "a prophecy that unionization will ultimately
lead to loss of employment is not coercive where there is no threat that the Respondent
will use its economic power to make its prophecy come true ." While the cited case
properly emphasizes that , had there been an accompanying threat by the Employer to
use his economic power , a different result would have followed , it is clear that, in the
instant case, the Union 's warning of strike action in this context , whether regarded as a
use of its economic power or not , would come within the scope of Section 7 of the Act as
protected activity.
G. H. HESS, INCORPORATED 469
Most of what our other colleague, Chairman Herzog, has so emphati-
cally said, we believe would be much more persuasive for us if the
record disclosed a context of force or threats of violence. But a single
and unconnected observation of the character he is concerned with
remains for us quite insubstantial, and although we do not wish to be
understood as approving this kind of election tactics, we are unwilling
to throw out a freely selected representative because of this isolated
indiscretion.112
REPORT ON FINDINGS OF FACT AND RECOMMENDATIONS
Statement of the Case
On April 12, 1948, pursuant to a Decision and Direction of Election of the
National Labor Relations Board dated March 2, 1948, an election by secret ballot
was conducted under the direction and supervision of the Regional Director for
the Sixth Region (Pittsburgh, Pennsylvania). Upon the conclusion of the
election, a Tally of Ballots was furnished the parties in accordance with the Rules
and Regulations of the Board.
As to the balloting and its results, the Tally showed as follows :
Approximate number of eligible voters------------------------ 36
Votes Cast for International Ladies' Garment Workers' Union,
AFL------------------------------------------------------ 25
Votes Cast Against above named participating Labor Organi-
zation--------------------------------------------------- 11
Challenged ballots------------------------------------------- 0
Valid votes counted plus challenged ballots-------------------- 36
The Certification on Conduct of Election was duly signed by representatives
of G. H. Hess, Inc., hereinafter called the Employer ; International Ladies'
Garment Workers' Union, AFL, hereinafter called the Union ; and by a repre-
sentative of the Regional Director of the National Labor Relations Board,
Sixth Region, hereinafter called the Regional Director.
On April 19, 1948, the Employer filed objections to the conduct of the election
and conduct affecting the results of the election. On May 19, 1948, the Employer
filed Amended and Supplemental Objections to the conduct of the election and
conduct affecting results of the election. On June 10, 1948, following an investi-
gation , the Regional Director issued a Report on Objections to the Election in
which he found that the Employer's objections did not raise substantial and
material issues with respect to the election, and recommended that the Board
overrule the objections. Thereafter, on or about June 17, 1948, the Employer
filed Exceptions to the Report on Objections of the Regional Director. On
July 6, 1948, the Board directed that a hearing be held on the aforesaid
Exceptions and that the above entitled proceeding be referred to the said
Regional Director for the purpose of conducting such hearing, and. that the
said Regional Director is authorized to issue notice thereof.
Pursuant to the said Order of the Board, an appropriate hearing was held,
after due notice, before W. G. Stuart Sherman, the undersigned Hearing Officer,
11 See Matter of Rice-Stir of Arkansas, Inc., 79 N. L. R. B. 1333; and Matter of Glold-
blatt Bros , Inc, 77 N. L. R. B. 1262, for instances of Board disposition of isolated inci-
dents in unfair labor practice cases involving employers.
838914-50-voi. 82-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had been duly designated by the Regional Director . Said hearing was held
at Wheeling , West Virginia , on July 21, 1948.
The Employer and the Union appeared and participated . The parties were
afforded full opportunity to be heard , to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues . At the opening of the hearing,
the Employer moved for segregation and separation of witnesses . The Union
was opposed to the motion . The motion was denied by the undersigned on the
ground that no substantial reason had been adduced by the Employer to warrant
the segregation . The parties waived the right to participate in oral argument or
to file briefs with the Board.
At the hearing , the Union moved to dismiss the Employer ' s Objections for
lack of evidence. Ruling was reserved for the Board. The undersigned recom-
mends that the Board dismiss said Objections for the reasons hereinafter set out.
On September 15, 1948, the Board ordered the undersigned Hearing Officer to.
prepare and file a Report on Findings of Fact and Recommendations.
Upon the entire record in the case, including the Objections and Supplemental
Objections filed by the Employer , and from his observation of the witnesses, the
undersigned makes the following :
Findings of Fact
The Employer 's objections , as amended and supplemented , are in substance
as follows :
(1) The Union engaged in electioneering at or near the voting place in the
plant on the day of the election in violation of the election rules of the
Board.
(2) The Union Organizer , while engaged in handing out hand bills to em-
ployees on the morning of the election , crowded one of them at the door and
tried to force her to accept a circular.
(3) The Union 's election observer ( Lulu Williams ), an employee, had a
supply of the aforementioned circulars in her possession in the shop on
election day, in full view of other employees , and refused to put them away
until after three requests made by her forelady.
(4) The Union Organizer , Joe Lewis , having been advised that a certain
employee was unfavorable to the Union , told said employee that he expected
her to leave the plant at four o'clock on election day. As said employee was
departing from the plant after the election , the said Lewis told her the
girls in the plant would not work with her. Said employee ( Helen Basnett)
was also told , prior to said election , that if she voted against the Union, the
girls in the shop would not work with her.
(5) Employees were informed by Union members and representatives,
orally and in writing, that if they did not sign a Union card by the day of
the election , they would have to pay a fine of $5.00.
(6) Employees were told by representatives of the Union that the observer
for the Union would know how the votes were cast and which employees voted
for the Union and which employees voted against it.
(7) During the organizational period of the Union , its representatives
mis-represented to the employees the profits made by the Employer in the
Wheeling plant, when they told the employees that the Employer had made
$55,000 00 last year in said plant; whereas these were the figures which were
furnished to the National Labor Relations Board to show a difference
G. H. HESS, INCORPORATED 471
between the cost of raw materials at said plant and the value of the finished
products.
(8) Union representatives falsely represented to the employees that the
Garment Workers were earning as much as $2.50 per hour, thereby implying
that the wages of the Employer were grossly inadequate and holding out to
the employees the hope that the Employer would 'pay wages far in excess
of what it is now paying.
(9) Employees were informed that if the Union won the election, it would
see that Ruth Cotts, the forelady, would be discharged, and that it could
force her discharge by controlling the sale of materials to G. H. Hess, Inc.
Re Objection 1
Blanche Morris, an employee who had been absent from the plant because of
illness, testified that she was approached by Joe Lewis, Union organizer, at 3: 55
p. in. on April 12, 1948, and that Lewis showed her an N. L. R. B. Election Notice
and indicated to her how to vote "No" or "Yes" by pointing to the respective
boxes on the sample ballot on the notice. Then he asked her to vote for the
Union.
Retha Al. Weaver, an employee, testified that Lewis was standing inside the
entrance to the plant on April 12, 1948 at 6: 45 a. in. and that he came out of
the door as she and other girls entered and that lie gave her a union circular and
said, "Vote for the Union."
Grace A. Dickson, an employee, testified that at 7: 20 a. in., she saw Lewis
"standing on the steps close to the door when I went in and he handed me a
yellow (Union) handbill," and Lewis told her that he hoped she was voting
for the Union. She also testified upon being recalled to the witness stand that
Letha Hall, an employee, handed a circular to her in the plant at 6: 55 a. in. on
April 12, 1948 and said, "I hope you are with us."
Grace Nicola testified that she saw Lewis on landing in front of plant doors
when she came to work on April 12th, and that he handed her a sample ballot
and said, "Good luck to you."
Ruth Cotts, forelady, testified that she observed Lewis in front of the factory
on April 12th and that he handed a circular to her. She said, "No, thanks," and
walked in.
The above testimony is uncontradicted. The undersigned finds that Lewis,
Union representative, and Hall, an employee of Hess, distributed union litera-
ture to the employees of Hess on the day of the election, April 12, 1948, before the
hours of the election, and that Lewis asked employees to vote for the Union.
There is no evidence that the area near the entrance to the Employer's building
had been indicated as a "no electioneering zone."
There is no evidence that there was any violence in connection with the
Union's organizational campaign at the Employer's plant, and there is no evidence
that there was any electioneering during the polling hours on April 12, 1948,
within close proximity of the polling place. The undersigned finds that the
activity and conduct of the Union's representative and Hall, an employee, as
described above, do not constitute such substantial deviations from the Board's
Rules for the conduct of elections as to justify the setting aside of the election
Re Objection 2
The sole bit of testimony relating to the second objection, namely that Lewis
crowded one of the employees at the entrance , is from Wilma Klymuk, a clerical
'In re : Arteraft Hosiery Co , Meridian Div, 73 N. L. R B. 808.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, who testified that Lewis was standing in front of the door, right in
front of the steps, on the platform, and that she couldn't get to the doorway.
She further stated that she had an umbrella and poined it at his face. He
offered her a circular but she refused to accept it'
Lewis testified that it was raining on the morning of April 12th and that he
went up on the steps to get out of the rain.
Lewis testified that he was not blocking the doorway and that all the girls
were holding their umbrellas downward as they were unfolding them preparatory
to entering the building. None of the other witnesses testified that Lewis blocked
the entrance to the building.
Forelady Cotts testified that no employees were prevented from coming to work
on election day. There was no evidence to indicate that Klymuk reported the
alleged incident immediately to her superiors or made any complaint about it
to them.
The undersigned finds that Lewis did not block the entrance to the Employer's
plant on April 12, 1948. Assuming arguendo that Lewis had temporarily and
inadvertently blocked the doorway because of the small size of the platform lead-
ing to the entrance, the undersigned is of the opinion that such conduct would
not warrant the setting aside of the election.
Re Objection 3
With respect to the third objection, Wilda Immel, factory supervisor, testified
that on April 12, 1948, she observed some of "these (union) circulars" on the side
of the machine of the girl who worked next to Lulu Williams. Cotts, forelady,
came to Immel and asked if the presence of the circulars was permissible there
on the day when the election was to be held. Immel told Cotts to instruct Williams
to remove the circulars. Neither Immel nor Cotts alleged that Williams was
distributing the circulars in the plant on the day of the election. Cotts corrobo-
rates Immel's testimony in this regard and further alleges that she had to ask
Williams on three occasions to put away the circulars. Cotta concedes that the
circulars were so folded that the printed matter was inside.
Williams in her testimony admitted that she had union circulars (folded)
with her in the plant on April 12th and explained her delay in concealing the
circulars by stating that her handbag had a broken clasp and that she thought the
concealing of the folded circulars under her handbag would be sufficient to satisfy
the forelady. However, Williams finally picked up the folded circulars and
jammed them into her handbag. There is no testimony to the effect that
Williams distributed any of the circulars to any of the employees on the day of
the election.
The undersigned finds that Williams did have union (folded) literature in
her possession at the Employer's plant on April 12, 1948 and that she did not
distribute said literature to employees in the Employer's plant on April 12, 1948.
In the opinion of the undersigned, the mere possession of union literature (folded
with the printed matter on the inside) does not constitute a valid ground for
setting aside the election.
Re Objection 4
C. M. Basnett, husband of Helen Basnett, testified that Lewis came to his home
on Wednesday, April 7, 1948 and asked him to tell his wife that if she didn't vote
for the Union-to put on her hat and coat and walk out of the factory.
2 Klymuk testified that she was an eligible voter, but the eligibility list did not contain
her name.
G. H. HESS, INCORPORATED 473
According to the testimony of Helen Basnett , an employee , Lewis visited her
home on April 9, 1948 , three days prior to the election , and after talking with
her about the Union campaign and the impending election , and after learning
from her replies that she was unfavorable to the Union , he requested that she
should leave the plant at four o 'clock p . in. (quitting time ) on the day of the
election to keep from causing hard feelings with the rest of the girls . She also
testified that Lewis told her that if she voted against the Union , the girls would
refuse to work with her . C. M. Basnett corroborated this last statement of his
wife. Basnett also testified that after she had voted and had departed from the
building on April 12, 1948, she met Lewis on the outside, in front of the plant,
and he asked her if she had voted "Yes." She replied in the negative ; whereupon
Lewis told her that the girls were going to refuse to work with her. She replied,
"Let them quit and go home , that is what I would do if I didn 't want to work
with them." She further stated that the statements made by Lewis did not
influence her vote.
Lewis did not deny making the above statements or conduct attributed to him
by Basnett.
The undersigned finds that Lewis did visit the home of Basnett on April
9, 1948 and did make the statements attributed to him ( as described above) by
Basnett. The undersigned also finds that Lewis met Basnett in front of the
Employer 's plant on April 12 , 1948 after she had voted and that he told her
that the girls were going to refuse to work with her after she had advised him that
she had voted against the Union . The undersigned finds that Lewis' statements
to Basnett on April 9 , 1948 did not influence the way in which she voted in
said election.
In the opinion of the undersigned , such statements by Lewis on or before
April 9, 1948 were too remote from the election to have any possible effect on
the vote. Therefore, said statements do not warrant setting aside the election'
Be Objection 5
According to the testimony of Retha M. Weaver, an employee , Mrs. Jessie
Murphy, an employee , approached her machine at the plant about a week or two
weeks before the election and said, "Well , we are having the Union and you will
have to pay $5.00 to join it, and you will not be allowed to work unless you do
join it."
Murphy was not an official or representative of the Union . She did not testify
and the testimony of Weaver is uncontroverted . There is no evidence that any
Union representative made such a remark.
The undersigned finds that Murphy made the above statement attributed to
her by Weaver . In the opinion of the undersigned , such remarks by Murphy
were not in such close proximity to the election as to have had any harmful
effect upon the employees ' free choice at the polls.` Weaver further testified
that the statements attributed to Murphy did not make her join the Union and
did not affect her vote . The Board has held such statements not to be coercive
to the point of requiring the election to be invalidated.
Be Objection 6
According to the testimony of Grace Nicola , an employee , Lewis told her some-
time before the election , "We will know how you all voted-we could find out."
8 In Re: Maywood Hosiery Mills, Inc., 64 N. L. R. B. 146.
4 In Re : Maywood Hosiery Mills, Inc., Supra . NAPA New York Warehouse, Inc., 76
N. L. R. B . 119; Southeastern Clay Company, 73 N. L . R. B. 614.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, Lulu Williams and Letha Hall, employees, advised her that they
could tell how the employees voted by the way the votes were put in the box.
This incident took place a few days before the election.
She further stated that Williams came to the cafe where certain of the em-
ployees were gathered after the election on April 12, 1948, and Williams an-
nounced the results of the election and further stated that the ballot box was
small and the ballots were crowded in it and, therefore, they didn't lay the way
they were supposed to and she couldn't tell who voted "yes" and who voted "no."
The testimony of Nicola on this point is not corroborated. Williams denied the
statements attributed to her by Nicola and further explained her remarks at
the restaurant after the voting by stating that she was appointed as a tally clerk
to count the "no" votes by the Field Examiner, but because of her excitement
she started to tally the "yes" votes ; then realizing her error, she called it to the
attention of the Field Examiner, who started the tally of ballots over again.
Lewis categorically denied making said statement to any individual or a group,
either at a Union meeting or elsewhere. He admitted saying "Good members
would vote for the Union." He also stated that there was no way in which he
could find out how members voted.
Brookie Barnes, an employee, who attended most of the Union meetings, de-
nied ever hearing Lewis, Williams or anyone else make a statement to the effect
that they (the Union) would know how the people voted. Barnes, who was at
the cafe after the election, denies hearing Williams make the statement that she
lost count of the ballots indicating the way in which the employees voted because
the box was too large or too small. She corroborates Williams' version of this
incident at the cafe.
Gertrude M. Wagenhofer, an employee, who attended most of the Union meet-
ings, denies that anyone stated at the Union meetings or any other place that
they (Union) would know how the employees voted in the secret election of the
National Labor Relations Board at the plant. She attended the meeting in
cafe after the election and denies hearing Williams make any statement to the
effect that she (Williams) could not tell how people voted because the box was
of such a size that the votes got mixed up.
It is also significant that G. H. Hess made a speech to his employees shortly
before the election and Nicola admits that among other things, Hess said, "You
simply mark the ballot with an X to indicate your wishes and your name will not
appear on the ballot-you can, therefore, see that the election will be conducted
in a fair and impartial manner, in the true American way-to express your
wishes-without any coercion." The handbills distributed by the Union stated
that the election would be a "United States Government Secret Ballot." Nicola
further testified, on cross-examination , that it was "a free American election"
and that she voted in the manner that she chose to vote for herself. She ad-
mitted that there was no pressure brought to bear on her that affected her choice
in the voting. The Union circular contains the following language, "Today you
go to the polls in a U. S. Government secret election" (emphasis supplied). The
undersigned finds that Lewis, Union representative, and Williams and Hall,
employees, did not make the statements attributed to them by Nicola. Therefore,
the Sixth Objection lacks merit.
Re Objections 7 and 8
Mr. and Mrs . Basnett testified that Lewis told them, "Mr. Hess earned $55,000.00
last year." Nicola testified that she thought Lewis told her that Hess Company
had made $55 ,000.00 last year.
Mrs. Basnett testified that Lewis told her, "We'll double your wages."
G. H. HESS, INCORPORATED 475
Blanche Morris, an employee, testified that about a week before the election,
Lewis told her if they put the Union through-it would be better for them and
they would be making more money.
Lewis did not deny making the above statements attributed to him by the
Basnetts, Nicola and Morris.
The undersigned finds that Lewis made the statements as given above by the
Basnetts , Nicola and Morris.
However, in the opinion of the undersigned, such statements partake of the
nature of "sales talk" and union campaign propaganda . Such campaign remarks
do not constitute valid grounds for invalidating the election 6
Re Objection 9
C. M. Basnett, Helen Basnett, Blanche Morris, Grace Nicola testified that Lewis
told them that the Union was going to get rid of Ruth Cotts as forelady after
the Union got in the plant. No testimony was introduced to support the latter
part of the ninth objection with reference to the Union's control over materials
and its connection with the Union's ability to effectuate the removal of Cotts
as floorlady.
Lewis denies making the statements attributed to him by the Employer's wit-
nesses in the paragraph above.
Retha M. Weaver, an employee, also testified that Lulu Williams, an employee
and very active protagonist for the Union, told her that she (Williams) was
going to get rid of Ruth Cotts as forelady, first. Williams denied making said
statement. Barnes denies hearing anyone say that if the Union got in (plant),
they were going to get forelady discharged. Wagenhofer gave similar testimony.
Basing his opinion upon his observation of the witnesses, the undersigned con-
cludes and finds that Lewis did make the statement to the effect that the Union
was going to get rid of Cotts as forelady after the Union came into the plant. The
undersigned also finds that Williams did not make a similar statement to Weaver.
However, in the opinion of the undersigned, the statement of Lewis and
Williams (assuming arguendo that Williams made such statements) are not
of such a coercive character as to interfere with the employees in having their
free and untrammelled choice at the balloting place c
The Employer introduced additional testimony pertaining to the election
without filing additional objections.
Immel, one of the supervisors, testified that on April 12, 1948 at about 3: 45
p. in., she was called from the middle of the factory by Lewis, who was in the
clock room. Lewis was accompanied by Jaffee, a Union representative, and the
Field Examiner was also present in the clock room. Lewis and Jaffee requested
to talk to Williams, who had been designated by the Union as its observer in
the election. Cotts, forelady, came to the clock room at this time and both Cotts
and Immel told Lewis and Jaffee that they would have to leave the premises
because of management's orders that no union representatives were to be
permitted on company premises on day of the election.
In the meantime Cotts went back in the factory and called Williams. Lewis
and Jaffee waited in the clock room in the presence of Immel and the Field
Examiner . Shortly thereafter, Cotts returned with Williams. Lewis and Jaffee
talked to her briefly in the presence of Cotts, Immel and the Field Examiner.
5 In Re : General Armature and Manufacturing Co., 71 N. L. R. B. 413 ; Kroeder-Reubel
Company, 72 N. L. R. B. 240; Maywood Hosiery Mills , Inc, Supra. Champion Spark Plug
Co., 80 N. L. R. B. 47.
6 In Re : Hroeder-Reubel Company, cited supra.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They told her not to sign any papers or count any ballots after the election until
they were present. Then they departed from the plant and waited in their
auto which was parked on the public street near the plant. They left the building
before the opening of the polls. Cotts corroborates Immel's version of the incident.
The record indicates that the clock room is a small ante-room adjacent to the
main sewing room of the plant.
The version of the incident given by Lewis and Jaffee agrees substantially
with that given above by Cotts and Immel. However, Jaffee testified that he
went to the plant on April 12th at 3: 45 p. in. for the purpose of examining the
polling place. Cotts came in the room then and told them to leave. They then
asked to talk to the Board Agent. He approached them and they requested
his permission to inspect the polling place. Cotts and Immel interposed and
said that the Employer would not allow them to do so. At this point Jaffee
requested to talk to Williams and Cotts went out and brought her into the clock
room. Jaffee testified that he and Lewis were in the plant for about five minutes
and that while there "they were not left alone for a second."
There is no evidence that Lewis and Jaffee talked to any eligible voter except
Williams, the Union observer, and no evidence that they engaged in electioneer-
ing during their brief visit in the factory.
The undersigned finds and concludes that Lewis and Jaffee did visit the Em-
ployer's plant at 3: 45 p. in on April 12, 1948 for the purpose of inspecting the
polls, were denied permission to do same by Cotts and Immel, and that they
talked briefly to Williams in the presence of Cotts, Immel and the Field Examiner,
after which they departed from the Employer's plant without talking to any other
employees or engaging in any electioneering.
In the opinion of the undersigned, such conduct on the part of Lewis and Jaffee
as described above does not constitute such substantial deviations from the Board's
Rules for the conduct of elections as to warrant the setting aside of the election.
On all the above, the undersigned concludes and finds that the Employer's Ob-
jections to the election are without merit and are not grounds for setting aside
said election.
RECOMMENDATIONS
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned recommends that the National Labor Relations Board dis-
miss the objections for lack of merit.
Any party may, within five days of receipt of this Report, file with the Board
in Washington , D. C. an original and six copies of exceptions . Immediately upon
the filing of such exceptions , the party filing the same shall serve a copy thereof
upon each of the other parties , and shall file a copy with the Regional Director.
W. G. SMART SHERMAN,
Hearing O f icer.
Dated : November 30, 1948.