Heckethorn Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 10, 1974

208 N.L.R.B. 302 (N.L.R.B. 1974)

302 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
Heckethorn Manufacturing Co. and International
Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America (UAW).
Cases 26-CA-4544, 26-CA-4676, and
26-RC-4336
January 10, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On June 29, 1973, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions 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
briefs and has decided to affirm the rulings,
findings,I and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified, and hereby orders that. Respondent,
Heckethorn Manufacturing Co., Dyersburg, Tennes-
see, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as modified herein:
1. Delete paragraph 1(b) and redesignate para-
graph (c) accordingly.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the election in Case
26-RC-4336 conducted on October 27, 1972, be, and
it hereby is, set aside, and that the case be remanded
to the Regional Director for Region 26 for the
purpose of conducting a new election in the
appropriate unit at such time as he deems the
circumstances permit the free choice of a bargaining
representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
208 NLRB No. 46
I The Respondent and General Counsel have 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, enfd 188 F.2d 362 (C A
3, 1951) We have carefully examined the record and find no basis for
reversing his findings.
2 We agree with the Administrative Law Judge that Respondent violated
Sec. 8(a)(l) of the Act by interrogating and threatening certain employees,
and that such conduct interfered with the exercise of a free and
untrammelled choicd in the election We shall therefore set aside the
election However, we do not agree with the Administrative Law Judge that,
in the context of this case, the exhibition of the film, "And Women Must
Weep," constitutes either a violation of Sec. 8(a)(1) or a sufficient basis for
setting aside the election We shall revise his recommended Order and
notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our em-
ployees concerning their union activities.
WE WILL NOT threaten our employees with loss
of jobs if the Union comes in.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their Section 7 rights.
All our employees are free to become, remain, or to
refrain from becoming or remaining, members of
International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America
(UAW), or any other labor organization.
HECKETHORN
MANUFACTURING CO.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Clifford Davis Federal Building,
Room 746, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge:
Upon separate charges filed on November 11, 1972, in
Case 26-CA--4544 and on March 16, 1973, in Case
HECKETHORN MFG. CO. 303
26-CA-4676, by International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America
(UAW), hereinafter referred to as the Union or the
Petitioner, the General Counsel for the National Labor
Relations Board, hereinafter referred to as the Board,
issued a consolidated complaint on April 12, 1973, against
Heckethorn Manufacturing Co., hereinafter referred to as
the Respondent or the Employer, alleging violations of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136)
hereinafter referred to as the Act. A timely answer to the
consolidated complaint was subsequently filed by the
Respondent wherein it denied the commission of any
unfair labor practices.
In Case 26-RC-4336, based upon the representation
petition filed by the Petitioner on August 28, 1972, and
pursuant to a Stipulation for Certification Upon Consent
Election approved by the Regional Director for Region 26
on September 19, 1972, an election was held on October
27, 1972, among the production and maintenance employ-
ees employed at the Employer's Dyersburg, Tennessee
plant.' Thereafter, on November 3, 1972, the Petitioner
filed Objections to the Election. Subsequently, on Decem-
ber 14, 1972, the Acting Regional Director, after having
conducted an investigation of the objections, issued a
report on objections. In his Report, the Acting Regional
Director found that Objection 5 raised issues which may
best be resolved on the basis of record testimony, and
recommended to the Board that Objections 2, 6, and 7 be
sustained, that Objections 1, 3, and 4 be overruled, and
that the election be set aside and a second election be
directed.
On January 9, 1973, the Employer filed timely exceptions
to portions of the report on objections. On February 1,
1973, the Board issued its order directing hearing, wherein
it found that Objections 2, 5, 6, and 7 raised substantial
and material issues of fact with respect to conduct
affecting the results of the election and ordered that a
hearing be held for the purpose of receiving evidence to
resolve issues raised by the Employer's exceptions with
respect to the Petitioner's Objections 2, 5, 6, and 7.
Subsequently, on April 12, 1973, the Regional Director
issued an Order consolidating Case 26-RC-4336 with
Cases 26-CA-4544 and 26-CA-4676, for the purposes of
hearing, ruling, and decision by an Administrative Law
Judge.
Pursuant to said order and notice of hearing, a hearing
on the consolidated complaint, as amended at the hearing,
and on other representation matters alluded to above in
Case 26-RC-4336, was held in Dyersburg, Tennessee, on
May 1-4, 1973. All parties were represented by counsel,
and were afforded full opportunity to examine and cross-
examine witnesses, to introduce evidence pertinent to the
issues, and to engage in oral argument.2 Subsequent to the
close of hearing timely briefs were submitted by counsel
for the General Counsel and the Respondent.
Upon the entire record in this case, and based upon my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corporation v.
N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Heckethorn Manufacturing Co., a corporation with an
office and plant located in Dyersburg, Tennessee, is
engaged in the manufacture of ventilated seat cushions and
certain items for the United States Department of Defense.
During the 12-month period immediately preceding the
issuance of the consolidated complaint herein, the Respon-
dent received goods and materials valued in excess of
$50,000 directly from points outside the State of Tennessee.
During the same period, the Respondent sold and shipped
goods and materials valued in excess of $50,000 directly to
points located outside the State of Tennessee. The parties
admit, and I find, that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit , and I find , that International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America (UAW), is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
CONDUCT AFFECTING RESULTS OF ELECTION
A. The Issues
1. Whether, on one or more occasions during August,
September, and October 1972, the Respondent, through
one or more of its supervisors, engaged in interrogation,
threats, or other unlawful conduct within the meaning of
Section 8(a)(1) of the Act.
2. Whether, in early October 1972, the Respondent
withheld from its employees a customary annual wage
increase and informed his employees that it was being
withheld because of their union activity in violation of
Section 8(a)(1) of the Act.
3. Whether, in exhibiting a movie to its employees
entitled, "And Women Must Weep," the Respondent
violated Section 8(a)(1) of the Act.
4. Whether, in failing or refusing since November 1972
to recall to their former positions of employment laid-off
employees Gaylon Pease and Bill Henry, the Respondent
did so because of their having engaged in union activities
in violation of Section 8(a)(3) of the Act.
5. Whether the results of the election conducted on
October 27, 1972, among the Respondent's employees
should be set aside.
1 The tally of ballots issued by the Regional Director reveals that the
Petitioner failed to receive a majority of the votes cast in the unit comprised
of "All production and maintenance employees, including plant clerical
employees and research lab technicians, employed at Heckethorn Manufac-
turing Company's Dyersburg, Tennessee plant, excluding all laid off
employees, office clerical employees, watchmen . guards and supervisors as
defined in the Act "
2 At the outset of the hearing I denied the Respondent's motion to sever
and dismiss on procedural grounds Case 26-CA-4676, involving the 8(a)(3)
allegations herein
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
1. Alleged 8(a)(1) conduct
a. W R. Heckethorn's speech
On October 26, 1972,3 the day before the election, W.R.
Heckethorn, the Respondent's president, made a speech to
his employees who were assembled in the plant cafeteria in
groups of approximately 30 employees. During the course
of discussing several matters, Heckethorn told his employ-
ees that there were very few people whom he totally
disliked, but that C.E. Strickland, union representative,
was one, and, reading from a prepared note card, stated
that "As a Company we will abide by the law and bargain
in good faith with the Umon, but no law can make me like
that man or sit down across the table from him." Seven
employee witnesses for the General Counsel corroborated
Heckethorn's testimony in this regard, several of whom
also testified on cross-examination that it was clear that
Heckethorn was talking about himself and not about the
Company. As the General Counsel's own witness, employ-
ee Ivy Clark testified Heckethorn stated that if the Union
won the election the Company would bargain in good faith
and that he would turn over the job of negotiating to
another company official. Thus, the record contains no
credible evidence to support the General Counsel's
assertion and the complaint allegation that, on this
occasion, Heckethorn announced to the employees the
Company's intention to refuse to bargain with Strickland
in the event the Union was certified as the bargaining
representative.
b. Alleged conduct of Robert Strickland
On several occasions during the months of September
and October, Respondent's production manager, Robert
Strickland, had conversations with employee Fannie Mae
Johnson at her machine concerning employee union
activities. During the first of these, when Strickland
stopped by her work station, Strickland asked Johnson to
do him a favor and talk to employee Emma Koonce, to tell
her to stop talking about the Union, that people on the
second shift were pretty well satisfied with things as they
were. Johnson, a close friend of Strickland, agreed to his
request.
On a second occasion Strickland told Johnson that
employee Lonny Powell was loud-mouthing about the
Union and attempting to get people to vote for the Union.
Strickland asked Johnson to speak to Powell and see if she
could stop him. Still a few weeks later, in October,
Strickland asked Johnson if she knew how employee Joan
Woodside felt about the Union, and then asked her to find
out and let him know. Johnson again agreed.
On a fourth occasion in October, Strickland approached
Johnson at her machine and asked her what had Louise
Ketcherson so uptight about the Company and whether
she were going Union. When Johnson answered that she
did not believe this to be the case, Strickland asked her to
find out for him and let him know. And again, on another
3 Unless otherwise noted , all dates hereinafter refer to the year 1972
4 1 do not find , however, as alleged in the same paragraph of the
occasion, about 2 weeks before the election , Strickland
asked Johnson how employee Wilma Everston felt about
the Union. Johnson, a relative of Everston, told Strickland
that he would have to talk with Everston himself, as she
would not have anything to say to her one way or the other
about the Union. On each occasion, after talking with the
employee involved, Johnson told Strickland that she had
done so and reported to him what the employee had said.
Strickland admitted talking with Johnson on a number
of these occasions concerning some of these employees,'
and receiving Johnson's report after talking with the
employees, but testified that they occurred in August
before the election petition was filed, and that the
discussions were instigated by Johnson, a close personal
friend who volunteered to talk with the employee involved
because of her concern about the union activities of other
employees. Strickland admitted, however, relaying the
information imparted by Johnson to other supervisors
shortly after each occurred, including Personnel Manager
Gerald Hamm.
Strickland's version of these conversations and the
alleged motivation of Johnson for talking with the various
employees does not ring true. The fact that Strickland
made use of the information once received, coupled with a
favorable impression of Johnson's demeanor while testify-
ing, leads me to give credence to her testimony, including
her recitation of the timing of the incidents. That such
conduct is unlawful is obvious. I find, as alleged, that the
Respondent through its supervisor, Bob Strickland, en-
gaged in unlawful interrogation within the prohibition of
Section 8(a)(1) of the Act.
c. Alleged conduct of Ernest Simpson
Approximately I month before the election, placing it
during the latter part of September, employee Ivy Clark
went to Foreman Ernest Simpson's office to get a Band-
Aid. While there Simpson, in a polite way asked him what
he thought about the Union. Clark replied that he did not
think that he had anything to worry about, that he had
heard only a couple of people say anything about it. As
Simpson did not testify, Clark's testimony as to this stands
unrefuted. Isolated or not, no justification exists for
Simpson's conduct in querying Clark about the Union in
the confines of his office shortly before an election. I find,
as alleged, that such interrogation is unlawful and violative
of Section 8(a)(I).4
i
d. Alleged conduct of Marvin Early
A week or so before the election, Marvin Early, manager
of quality control, approached employee Danny Ing in the
warehouse. Early stated to Ing that he always thought that
he was a pretty smart boy until then, mentioned the Union,
and volunteered that the Company would do as much for
the employees as it could but "If the Union came in, he
guaranteed there wouldn't be any jobs."
A day or so later, in the projectile department, in talking
with Ing again , Early said that he thought this year the
employees would get the best pay raise they had received
complaint, that this interrogation created the impression of surveillance
HECKETHORN MFG. CO.
in a long time. Later, in passing by, Early said to Ing,
"Think about it, Danny."
Early admitted bringing up the subject of the Union with
Ing on one such occasion, stating that he would like to talk
to him about the Union, and then, for about 20 minutes,
giving Ing the benefit of his thoughts against the feasibility
of having a union at Heckethorn. In testifying in detail as
to what he did tell Ing, Early denied the specific remarks
attributed to him by Ing. With respect to the crucial one,
Early's version is that he told Ing that the Company would
do as much for the employees as it was able to do "without
any outside pressure," and that "The Company would not
be put in a position of being forced into bankruptcy by
having to pay higher wages than it was able to pay." Early,
when questioned on cross-examination, admitted that if
the Company were forced into bankruptcy this would
mean a loss of jobs. I credit Ing's testimony as to these
conversations.
For a supervisor to initiate a union conversation with
one of his employees on the eve of an election, and to
spend 20 minutes expounding against the union is to invite
the type accusation here leveled at Early. I am of the
opinion that Ing's testimony reflects his understanding of
that which Early discussed during these conversations.
Accordingly, in crediting Ing, I find that Early engaged in
conduct constituting an unlawful threat of loss of jobs if
the Union came in, clearly a violation of Section 8(a)(1) as
alleged in the complaint.
e. Alleged conduct of Clyde Whittle
A week or two before the election , Foreman Clyde
Whittle talked with employee Thomas Rigsby in the plant.
After asking him whether he thought the Company needed
a union , Whittle related his experiences while working at
American Metals in Union City, which involved the
necessity of employees having to look for other employ-
ment because the Union , the same one involved here, had
gone out on strike. Whittle was not called as a witness, and
therefore Rigsby's testimony stands unrefuted . In finding
that Whittle, on this occasion , did interrogate Rigsby
concerning whether he thought the Company needed a
union as alleged to the complaint . I also find, consistent
with Rigsby's denial on cross-examination , that Whittle
did not threaten him with the loss of his job if the Union
came in . It is recommended that the portion of the
complaint alleging a threat on the part of Whittle be
dismissed.
305
Respondent's director of personnel and planning, exhibited
to employee departmental groups of 30-35 employees the
movie entitled, "And Women Must Weep." On this day,
between 7 a.m. and 4 p.m., employees were advised by
their supervisors to go to the cafeteria, where they were
told that the film represented a situation that occurred at
the Perfect Circle Co. in Princeton, Indiana, that profes-
sional actors were used, and that it was not the actual
representation and was not the same union . The employees
were then told that their viewing of the film was voluntary,
and that anyone who did not wish to see it was free to
leave. Of 280 or 290 employees, 1 employee left. After each
viewing,a Kelt told the employees that the movie reminded
him of a situation in which C.E. Strickland (union
representative) was involved at Union City, and that the
only guarantee that they had that this situation might not
occur at Heckethorn was to vote "no" in the election the
next week. At that point, the employees returned to their
work stations.
While it is recognized that the exhibiting of the film
"And Women Must Weep" is not a per se violation of the
Act,6 a split Board does hold that, against a background of
demonstrated union animus and the presence of other
unlawful conduct by the employer, its showing constitutes
a violation of Section 8(a)(1) of the Act.7 Apart from the
unlawful interrogation and threat by Respondent's supervi-
sors herein found, the extensive campaign literature
distributed by the Respondent in the form of leaflets
simultaneous with the showing of the film, while not
unlawful in itself, makes reference to problems created by
unions and the extensive difficulties faced by striking
employees. One such leaflet, for example, contains the
admonition that "IF THE UNION STRUCK to try to force us to
agree to their demands, you could be replaced by a new
employee-that's what happened to `Slick's' strikers at
Union City." 8
This, coupled with the Respondent's continued reference
in its literature and at the conclusion of each showing of
the film to the violent American Metals strike situation
some years back at nearby Union City and the possibility
of this occurring at Heckethorn, clearly demonstrates the
union animus of the Respondent. Predicated upon Board
precedent,9 I find under the circumstances that the
Respondent's showing of the film "And Women Must
Weep" a week before the October 27 election is violative of
Section 8(a)(1) of the Act.10
f. "And Women Must Weep"
Approximately 1 week before the election. Lloyd Kelt,
5 It was stipulated by the parties that the movie involved is the same
movie. "And Women Must Weep" to which the Board referred in Spartus
Corporation, 195 \LRE 134, and Luxuray of New York Division of Beaune
Corporation, 185 NLRB 100
6 In fact, by itself, the showing of the film has been held, and properly so,
to be an exercise of the right of free speech protected by Section 8(c) of the
Act Southwire ('onipany v. N L R B, 383 F 2d 235 (C A. 5, 1967)
7 Southwire Company. 159 NLRB 394, Hawthorn Company, a Division of
Kellwood Company, 166 NLRB 251, l.uxuray of New York Division of
Beaunit Corporation, supra, Speed Queen, a Division of McGraw-Edison Co..
192 NLRB 995.
11 The "Slick" alluded to above, and throughout the various leaflets
distributed by the Company, is C E. Strickland, the union representative
involved in the organizing campaign at the Respondent 's plant
9 Inter alia, see Spartus Corporation, supra, and Luxurav of hew York
Division of Beaunit Corporation, supra
in For the view shared by Chairman Miller among others, that free
speech is not rendered unprotected by other improper conduct, seg the court
decisions in Southwire Company v. N LR B , supra, N LR B v Hawthorn
Company, a Division of Kellwood Company, and New Haven Manufacturing
Company 404 F.2d 1205 (C A 8, 1969), Kellwood Company, Ottenheimer
Division v N L R B, 434 F 2d 1069 (C.A 8, 1970), Luxurav of New York
Division of Beaunit Corporation v. N.LR B. 447 F 2d 112 (C A 2, 1971).
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
g. Withholding of annual wage increase
Going back at least to 1964, each fall the Respondent has
granted a general wage increase to its employees." In
1972, the period here under consideration, the Respondent
admittedly held up the granting of the annual wage raise
until after the holding of the October 27 election. By letter
given out to all plant employees, dated October 30,
Heckethorn noted the favorable results of the balloting,
expressed his appreciation for the vote of confidence,
indicated that he would continue to do his best to provide
jobs and paychecks for them in the future, and stated that
"-Now that the election is over-I am pleased to
announce a wage increase of 20 cents per hour, retroactive
to October 2, 1972."
Testimony by several employee witnesses indicates that
they had expected the raise to be granted around the first
of October. Testimony from these same employees also
indicates that it was commonly known that it was the
Company's position that it would have been illegal to grant
the increase while an election was pending, and in fact,
could have been considered a bribe to have granted it
before the election. Employees Rigsby and Edna Fulcher
testified that Foreman Whittle and Arthur Cook, respec-
tively, told them that if the Company were to grant the
wage increase before the election it could be considered
bribery.
A resolution of whether, in holding up a wage increase
until after the election, an employer violated the Act, is
most difficult under existing Board cases. On the one hand,
the Board rules that an employer's legal duty is to proceed
as he would have done had the union not been on the
scene. Thus, in Gates Rubber Company, 182 NLRB 95, the
Board found the company, which had withheld increases
that normally would have been granted but for the
presence of the union and the pendency of the election, to
have violated the Act. In a later case, The Singer Company,
Friden Division, 199 NLRB 1195, the Board reversed the
Trial Examiner who had followed this rationale and had
found that promotions had been unlawfully withheld on
the ground that the company would have granted them but
for the advent of the union.
On the other hand, it is extremely difficult for an
employer to so proceed, i.e., as if the union were not in the
picture, for, under a long line of cases, to do so and to
grant benefits during the pendency of an election an
employer risks being charged with interference with the
election , as well as with unfair labor practice conduct.
In the present case , three things stand out. One, the facts
reveal that, while the Company had made no promise of a
wage increase in 1972, at some point between the end of
September and the first of December each year for the
prior 8 years the Company had granted a general wage
increase . Two, the 1972 increase , as in 1965, admittedly
11 Company records reflect that such increases were granted as follows
was held up until after the election because of the
Company's position that to do otherwise would have been
illegal and could be considered a bribe, a position known
to the employees. And three, there is no credible evidence
indicating'in any way that the Company used the increase
postponement to influence the employees in the election,
or that the Respondent's decision to withhold was
calculated to do so.12
The facts are not totally unlike those present in The
Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645,
where there had been no promise of a wage increase and
the employees simply were aware that increases had been
given in the spring of previous years, the Board holding
therein that the postponement of the wage increase without
an explanation therefore and at a time when the union's
organizing campaign was about to be resolved in an
election was not violative of the Act. The important factor
here, as in A & P and in The Singer Company, where the
Board, in finding no violation, relied upon the fact that the
employer had not withheld reclassifications in the context
of antiunion propaganda, is that there is no indication that
the Company intended the withholding of the wage
increase to have an effect upon the outcome of the
election, or that the employees believed such to have been
the case.
While in the cited cases the Board upheld its determina-
tion on several factual grounds, in each it concluded with
what I consider the true test in this area. Thus, in A & P the
Board closed by stating, "In reaching this conclusion we
specifically note that there is no evidence to indicate that
Respondent in any way sought to capitalize on the absence
of a wage increase by connecting the absence with the
union or the employees' support of the union." And, in The
Singer Company, it concluded, "In the circumstances, we
do not believe that the employees could reasonably
conclude that the employer's postponement of promotions
or reclassifications was intended to influence organization-
al activities.. . .
The Respondent herein, I find, satisfies both of these
tests. Accordingly, I find that in withholding its annual
wage increase until after the October 27 election and
making it retroactive to October 2 the Respondent did not
violate Section 8(a)(l) of the Act.
11/1/64 9/29/69
12/3/65 10/5/70
10/3/66 11/15/71
10/30/67 11/3/72
9/30/68
h. Alleged conduct of Cooley Cook
Employee Lois Taylor testified that around October 1,
while at their work table with several other employees,
employee Imogene Myers asked Supervisor Cooley Cook
why the employees were not getting the pay raise. Cook
allegedly replied "If you hadn't started this damn s-you
would have already got it." Lois Taylor could not recall
who the other employees were. As to this asserted incident,
Shirley Taylor also testified that Cook made this reply to
Myers. Cook denied making such a statement. I credit
In 1965 and 1972, Board elections havmE been conducted in both years,
the increases were mane retroaurve to Novemoer I and October 2. respec-
tively.
12 The only testimonial assertion to the contrary is discredited, as
hereinafter noted.
HECKETHORN MFG. CO.
Cook's denial. First, because I felt he testified truthfully.
Second, because Lois Taylor, admittedly one of the leading
union adherents, did not mention this incident in either of
her two affidavits given to Board agents at the time of their
investigating this matter and unconvincingly testified that
she did not because the Board agent asked only if anyone
had said something to her about a wage mcrease.13 Thirdly,
because Shirley Taylor, when finally pinned down on
cross-examination after being confronted with her affidav-
it, reluctantly contradicted Lois Taylor, testifying that Lois
Taylor was not present when Cook allegedly made the
remark. Apart from the existence of other reasons for
discrediting both Taylors and the fact that not until after
the hearing had opened was the complaint amended to
encompass this asserted incident, I find the story to have
been a fabrication and that Cook did not make the
statement attributed to him. Accordingly, the complaint
allegation in this regard was not proved.
2. Alleged 8(a)(3) conduct
In early January 1972, Billy Henry and Gaylon Pease,
the two alleged discriminatees herem.14 with a few other
employees, attended a union meeting at the Holiday Inn.
Pease , who had obtained some 200 union authorization
cards from Organizer C.E. Strickland, gave out cards to a
number of the employees, including about 50 to Henry.i5
Subsequently, Henry and Pease passed out cards to
employees, each successful in signing up about 30
employees. This activity took place at the plant at different
times throughout the work day.
In addition to passing out cards and attending a few
additional meetings at Pease's home, Henry testified that
both he and Pease jokingly asked Supervisors Cooley Cook
and Clyde Whittle on a number of occasions if they
wanted a union card to fill out, each one jokingly refusing
the offer.16 It is also apparent from Henry's testimony that
three-quarters of the employees in the toolroom, where
Henry and Pease worked, signed union cards and that one
half of them spoke out openly on behalf of the Union.
Pease also testified that one evening in early February, as
he and Henry were leaving the plant, he approached
Foreman Gerald Cole on a nonunion matter. During the
conversation Cole said that he had heard that he (Pease)
was working for the Union and wondered what the
possibilities were of a union coming into the plant. Pease
replied that he thought they were good and that he
intended to work hard to see that one did. On another
occasion in early February at a local cafe, according to
Pease , Foreman Ernest Simpson asked Pease why he was
working for a union. Pease answered that he believed in
unions, that he had been a member of the UAW in the
13 Other of her testimony on this was not worthy of belief Indeed, my
appraisal of Lois Taylor is that, had the statement in fact been made by
Cook or anybody else, she would have jumped at the opportunity to
volunteer the information during her investigative interview
14 The alleged discrimination as to both employees involves the
Respondent's failure to recall them in and since November 1972, following
a plantwide economic layoff the prior February
15 Other employees receiving and subsequently distributing cards were
John Bradley, on the second shift, Thomas Rigsby, and James Ramsey.
16 Pease testified that Whittle, who had indicated to Henry that he was in
307
past, and that he felt Heckethorn needed one because of
the working conditions in the plant.17
It is apparent that the Company was aware of the fact
that both Henry and Pease were union adherents, and I so
find. However, there is no evidence that the Company was
knowledgeable as to the extent of their activities on behalf
of the Union, or that they were any more active than some
of the other employees.
a. Refusal to recall Gaylon Pease
Gaylon Pease was employed by the Respondent as a
Class "B" tool-and-die maker in the tool-and-die depart-
ment from April 1969 until the mass general layoff on
February 25, 1972. At the time of the plantwide layoff the
tool-and-die department employed approximately 25 em-
ployees under department supervisor, Bill Hudson, 13 of
whom were caught in the economic layoff . Pease, like the
rest of the employees, was advised of this by way of a letter
handed to him the day before. Pease was also notified of
the layoff at that time by Hudson's boss, Chief Engineer
William Dowling, who gave Pease a very fine letter of
recommendation.
The following Monday, February 28, Pease went to work
at Phillips Tool & Die Company, Halls, Tennessee, some
l1 miles from Dyersburg, procuring the job through his
friend and owner, Odis Phillips. Pease remained at Phillips
Tool & Die for about 8 weeks, when, toward the latter part
of April he moved to Memphis, Tennessee, where he went
to work for Craft Machine Co.
Pease stayed at Craft Machine in Memphis until
November 6, when he left and went back to Phillips Tool
& Die. He remained at Phillips until January 1973, when
he went to work at Oldberg Manufacturing Co., where he
was employed at the time of the instant hearing.
Having received word on Tuesday, November 7, that the
Company needed to recall two tool and die employees
right away, Gerald Hamm, employment manager, and Bill
Hudson went through a complete list of tool and die
employees who were on layoff by seniority with the
Company.18 After contacting or attempting to contact on
November 9 and 10 according to seniority all of the 11
employees then on layoff status, Hamm and Hudson
recalled Charles Edens, a class "B" tool and die man, and
Dorman Beard, a class "A" machinist, both of whom
reported for work the following Monday, November 13.
In going down the list, after contacting William
McGuire, who had top seniority, and being turned down,
Hudson attempted to call Pease, the second high man on
the class "B" tool and die list.i9 He used the telephone
number listed on the company personnel records and the
last known number the Company had for him, receiving a
recording indicating that the number reached was not in
favor of the Union, accepted a card from him.
it Ac neither of these incidents , relied upon by the General Counsel to
establish company knowledge, is alleged in the complaint as a violation. I
make no finding with respect to them.
is Of the 13 employees laid off on February 25, Joe Webb, the employee
with the most seniority, had been recalled the prior April 24. and Billy
Henry. for reasons hereinafter set forth , was not considered for recall.
McGuire, the record reflects, like Pease, was known to be an
outspoken union adherent
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service. Hamm took the telephone and called the operator,
and was told that the telephone had been disconnected.
Hamm then asked if she had another number for him and
was told that she did not.
At this point, Hamm and Hudson recalled that in July
Mrs. Pease had been to the plant inquiring about a
workmen's compensation check and indicated then that
she was leaving the area, but had refused the Company's
request to leave a forwarding address. They also recalled at
this time that they had learned indirectly from one of their
employees early in September that Pease no longer was
employed at Phillips Tool & Die and had moved to
Memphis. Thus, without knowledge of Pease's wherea-
bouts or how to get in touch with him, coupled with a
current need to fill the two positions, the two company
officials went to the next man on the list.
The record contains considerable testimony relating to
Pease and his whereabouts during this period, as well as
conjecture as to what the Company might have done in the
way of increased efforts to locate Pease on November 9.
The long and short of it, however, is that by his own
admission, when Pease left the Respondent's employment
he severed all connections with the Company and with
everyone else in the Dyersburg area, and did so with intent.
Thus, even before leaving Heckethorn, Pease had had his
telephone taken out and had given the Company no new
telephone number. Upon moving to Memphis he did not
have a telephone and purposely gave no one his address or
his office number, because "I was trying to keep my
particular address in Memphis as quiet as possible." 20
Pease did claim that he had called Hudson and Hamm
on several occasions between the layoff and the date of
recall inquiring about the possibility of recall. I discredit
his testimony in this regard completely. First, it is
incongruous that, had he talked with them, he would not
have told them how to reach him-as he so testified at one
point. Secondly, he contradicted his earlier affidavit in this
regard, in which he had stated that the subject of recall did
not come up during two particular conversations with
Hamm and with Hudson. Further, Pease changed his
testimony several times while on the witness stand, and
contradicted his pretrial affidavit with respect to two
matters . Finally, Hamm and Hudson, both of whom
testified in a forthright manner, denied ever talking to
Pease during this period concerning recall, Hudson
specifically refuting Pease's testimony that he called
Hudson to tell him that he was working at Craft Machine
in Memphis. I credit Hudson's testimony that at no time
did Pease ever tell him he was in Memphis.21
Thus, it is abundantly clear, even admitted by Pease, that
at no time during the layoff period did he submit to the
Company either a mailing address or a telephone number
where he could be reached in the event of a recall. Under
20 Pease admitted that he had a substantial amount of debt during this
period and that he was not interested in his creditors knowing his
whereabouts He also had separated from his wife while in Memphis . taking
a separate apartment , and wanted to keep this quiet
21 Hudson credibly testified that the only telephone call he ever had
from Pease was one to his home about 6 weeks after the layoff when Pease
called him to obtain the telephone number of employee Buddy Hassell in
connection with a problem at Phillips , during which conversation no
mention was made of recall I do not credit Pease's testimony on crucial
these circumstances , I find that the Company did all that it
could reasonably be expected to do at the time , particularly
with its awareness that Pease had in fact left the area.22 I
find that the General Counsel has failed to prove by a
preponderance of the credible evidence that, in failing to
recall Gaylon Pease in November or since , the Respondent
violated Section 8(a)(3) of the Act.
b. Refusal to recall Billy Henry
Billy Henry first went to work for the Respondent on
September 23, 1968, spent a hitch in the Army between
August 1969 and May 1971, and returned to his class "A"
machinist job in the tool-and-die department in August
1971 where he was employed at the time of his layoff on
February 25, 1972.
On Thursday, February 24, Henry, along with other
employees, was personally informed of the layoff by Chief
Engineer Dowling, who that week was substituting for
Department Foreman Hudson. The following day. Dowl-
ing made assignments to both William McGuire and
Henry, each one charged with doing a special machine job.
Although each involved a piece of steel approximately 8
inches by 6 inches in size , they were different projects
based upon a different set of blueprints. During the course
of the day Henry was observed by three people stamping
on the side of his metal block. Later, at one time or
another, all three, employees Lawrence Hassell and
Thomas Jones, and Supervisor Dowling, saw Henry's piece
in the grinding room, with the inscription "F-you, White
Eyes" imprinted on the side. 23 Still later , when Hudson
returned to the plant, Dowling told Hudson to go into the
grinding room to see what Bill Henry had left him. Upon
looking at it, Hudson's reaction was "the man that did this
will not be coming back to this Company as long as I'm
here." 24
The record contains considerable testimony on this
matter, some of which would indicate that it was McGuire
rather than Henry who was guilty of the act. Henry
testified that he did not do it and McGuire testified that he
(McGuire) stamped "White Eyes M. F" on his block. In
this regard it would appear that McGuire, a strong union
adherent who subsequently said "hell, no" to Hamm's
offer of recall, was attempting to take the blame for the
insubordination. First, four witnesses , whom I find to be
credible, testified that the block they saw had "F-you,
White Eyes" or "F-you, White Eyes, M.F." on it.
McGuire denied stamping this language on his plate.
Secondly, contrary to the testimony of Henry to the effect
that he did no stamping that day, three of these witnesses
testified that they saw Henry stamping and also testified
that they saw no one else stamping. Thirdly, Hassell, whom
I credit, testified that just before the shift ended at 3:15
p.m., he saw McGuire's block and nothing had been
matters to the extent that it is not corroborated by other credited testimony
22 Hamm and Hudson had the same experience with two other
employees on the list, John Bradley and James Rushing, whom they could
not reach because of their telephones having been disconnected , with no
further attempts made to contact either of them
24 This was a vulgar and uncomplimentary term used by many of the
employees in referring to Hudson
24 Hudson was also apprised the following Monday by Hassell of the
fact that Henry had done the stamping on the block
HECKETHORN MFG. CO.
stamped on it. Finally, some time later on, after Henry
learned that he was being charged with stamping this foul
language on the block, he at no time, even at McGuire's
suggestion, went to the Company to deny that he was the
person responsible. Henry, on several occasions while
testifying, changed his testimony on important matters. I
was not convinced then or now that his testimony reflects
the truth.25
Shortly after this incident Hudson apprised Hamm of
what had occurred, indicating that Henry would not be
recalled, and telling Hamm that, if he ever should be, he
(Hudson) would leave. Thus, on November 9, when Hamm
and Hudson made up the list of laid-off employees eligible
for recall, Henry was left off.26
The following night, having heard of the recall, Henry
called Hudson and asked him about his chances of being
called back. Hudson let him know that anyone who used
derogatory remarks about him in public like that would not
be called back by him. According to Hudson, whom I
credit, Henry admitted that he had made the derogatory
remarks, apologized, and asked Hudson if there were any
way he could make it up. Hudson replied that, as far as he
was concerned, there was no way, but it was all right with
him if he wanted to go over his head to Kelt or Dowling.
On Monday, November 13, Henry went to see Dowling,
who told him that he had talked with Hudson and that he
agreed with him that Henry would not be recalled because
of the note to Hudson that he had left on his project the
last day of work. In reply to Henry's inquiry concerning a
letter of recommendation, Dowling said he could not give
him one. Henry then asked whether, in the event someone
should call, Dowling would refrain from telling him about
the part. Dowling replied that in such event he would only
answer what he was asked.27
Whether or not, as asserted by the General Counsel, the
Company's refusal to recall would appear to be harsh
treatment for an incident such as this, such a determination
is not before us. If in fact, as I find, it is the real reason for
the Respondent's decision, and is not motivated by
discriminatory considerations, as I also find, its justifica-
tion or lack thereof is of no moment. Under all the
circumstances, I find that the General Counsel has failed
to prove by a preponderance of the credible evidence that,
in refusing to recall Billy Henry in November or since, the
Respondent violated Section 8(a)(3) of the Act.
IV. THE OBJECTIONS TO THE ELECTION
As heretofore set forth, the Petitioner filed timely
objections to the election and, following the Acting
Regional Director's issuance of a report on objections, the
Employer filed timely exceptions to portions of his report.
The Board thereafter issued its order directing heanng in
which it ordered that a hearing be held for the purpose of
receiving evidence to resolve issues "raised by the
25 In this regard, unexplained to my satisfaction, is the fact that, during
the investigation of earlier charges in this matter and at a time when Henry
was aware of the Company's asserted reason for not recalling him, in
neither of two affidavits given by Henry to the Board did he mention the
assertion that it was McGuire who was the person responsible for the
obscene stamping
26 it is conceded that, had Henry been subject to recall, as senior man in
his classification on layoff he would have been called back
309
Employer's exceptions" to the report with respect to
Objections 2, 5, 6, and 7 These objections are as follows.
2. The Company President stated in his captive
audience meeting of October 26, 1972, that he would
not negotiate a contract with the Union if it was voted
in.
5. Supervisors interrogated, threatened, and har-
rassed [sic] employees as to their union sentiments.
6. The Company withheld a pay increase due the
employees on or about October 1, 1972.
7. Through the use of films, literature, and
speeches the Company ran a campaign of fear based on
strikes and violence, and subsequent loss of jobs if the
Union was voted in.
The Employer's exceptions attacked the Acting Regional
Director's refusal to hold a heanng on Objections 2, 5, 6,
"and the portion of Objection 7 dealing with the showing
of the film," "And Women Must Weep."
Having found that Company President W.R. Hecket-
horn, in his speech to employees on October 26, 1972, did
not state that the Company would not negotiate a contract
with the Union if it were voted in, and, in fact, stated just
the opposite, I shall recommend that Objection 2 be
dismissed. Having found that the Employer, in withholding
its wage increase until after the election, did not engage in
unlawful conduct, I shall recommend that Objection 6 be
dismissed.
Having found, however, in showing the film, "And
Women Must Weep," when viewed against the back-
ground of demonstrated union animus and the presence of
other unlawful employer conduct, that the Employer
engaged in 8(a)(1) conduct, I find that such interferes with
the exercise of a free and untrammeled choice in an
election, and therefore that there is merit to that portion of
Objection 7. Having further found that Supervisors Robert
Strickland, Ernest Simpson, and Clyde Whittle engaged in
unlawful interrogation of employees, that Supervisor
Marvin Early engaged in conduct constituting an unlawful
threat of loss of jobs, and that such conduct occurred
subsequent to the filing of the representation petition, I
find that such conduct also interferes with the exercise of a
free and untrammeled choice in an election, and that there
is merit to Objection 5. Accordingly, I shall recommend
that the representation election held on October 27, 1972,
in Case 26-RC-4336, be set aside.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
27 Henry testified that during this conversation , Dowling, who acknowl-
edged having talked with Hudson. told him that he was not being recalled
because of the parts that he had scrapped out and the bad taste that he and
Pease had left in the Company 's mouth Apart from a lack of corroboration
on this by Dowling , on cross-examination , Henry clarified this by testifying
that he supposed Dowling was talking about the way "both of us talked
about Hudson " Henry acknowledged that nothing was said concerning the
Union.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Vi. THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Heckethorn Manufacturing Co. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By interrogating its employees concerning their
union activities, threatening their employees with loss of
jobs if the Union won, and showing the film, "And Women
Must Weep," the Respondent interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act in violation of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER28
The Respondent, Heckethorn Manufacturing Co., its
officers, agents, successors, and assigns, shall:
28 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
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and threatening employees with the loss of jobs if
the Union won the election.
(b) Showing the movie "And Women Must Weep" to its
employees.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their nght to self-organization, to form, join, or assist any
labor organization, and to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places at its Dyersburg, Tennes-
see, plant, including all places where notices to employees
are customarily posted, copies of the attached notice
marked "Appendix."29 Copies of said notice, on forms
provided by the Regional Director for Region 26, after
being duly signed by an authorized representative of the
Respondent, shall be posted by it, as aforesaid, immediate-
ly upon receipt thereof and maintained for at least 60
consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to ensure 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 Decision, what
steps the Respondent has taken to comply herewith.
IT IS ORDERED that the complaint herein be dismissed so
far as it alleges violations of the Act not specifically found.
IT IS RECOMMENDED that Objections 2 and 6 be dismissed
as without merit.
IT IS FURTHER RECOMMENDED that Objections 5 and 7 be
sustained , and that the representation election held on
October 27, 1972, be set aside.
29 In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."