Hendrix Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1962

139 N.L.R.B. 397 (N.L.R.B. 1962)

HENDRIX MANUFACTURING COMPANY, INC. 397
As for the collective-bargaining agreement,3 the hiring provisions of the Red
Book Agreement so-called, which are admittedly binding on the Company and
applicable to this job, are claimed by the General Counsel to be unlawful or at least
ambiguous despite the reference to procurement of workmen from other sources.
But an exclusive hiring hall arrangement is violative only if it is limited to some
and excludes others, or if there is a refusal to refer.4 The provision for notice to the
Union of the need for qualified workmen, with the reference to such workmen
"procured" in that manner may suggest limitation to members since there follows
a reference to nonmembers procured from other sources But there is no actual
limitation to members, and certainly no exclusive hiring hall where mention is
made of employees "provided from other sources." The agreement, if obscure or
ambiguous, is not violative. None of the alternative allegations of violation has
been sustained.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of the Act.
2. Hoisting and Portable Engineers, Local No. 4, International Union of Op-
erating Engineers, is a labor organization within the meaning of Section 2(5) of
the Act
3 The Company has not engaged in unfair labor practices within the meaning
of Section 8(a) (3) or (1) of the Act.
4 The Union has not engaged in unfair labor practices within the meaning of
Section 8(b)(l)(A) or (2) of the Act.
[Recommendations omitted from publication.]
a Omrscion of reference to this, in both the recital and argument portions of,the General
Counsel's brief, may reflect abandonment of the allegation.
4 Local 357, International Brotherhood of Teamsters, etc v. N L R B., 365 U.S. 667.
Hendrix Manufacturing Company, Inc . and Lodge 635, Inter-
national Association of Machinists, AFL-CIO and Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders , Black-
smiths , Forgers, & Helpers , Charging Party
Hendrix Manufacturing Company, Inc . and Lodge 635, Inter-
national Association of Machinists , AFL-CIO and Interna-
tional Brotherhood of Boilermakers , Iron Shipbuilders, Black-
smiths, Forgers, & Helpers, Joint Petitioner . Cases Nos.
15-CA-1977 and 15-RC-2400. October 23, 1962
DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
On March 22, 1962, Trial Examiner Benjamin B. Lipton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, and recommending further that
the election held on August 10, 1961, in Case No. 15-RC-24001 be set
1 Pursuant to a Stipulation for Certification Upon Consent Election dated July 21, 1961.
139 NLRB No. 10.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aside and a new election held, as set forth in the attached Intermediate
Report' Thereafter, the General Counsel and the Respondent filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed.4 The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.
1. The complaint alleges that Respondent, through its agents,
threatened employees with the loss of their company benefits if they
selected the Unions as their bargaining representative, in violation
of Section 8 (a) (1) of the Act. The Trial Examiner found that the
statements made by Respondent's supervisors in a series of conver-
sations with employees constituted interference sufficient to warrant
setting aside the election,5 but that no threats were made in violation
of Section 8 (a) (1). Contrary to the Trial Examiner, we find that
employees were threatened by Respondent's supervisors with loss of
various employee benefits.
In support of its allegation, counsel for the General Counsel called
30 witnesses who testified that prior to the election held at Respond-
ent's plant various 6 supervisory personnel of Respondent told them,
during individual conversations held primarily at the employees'
work stations, that the employees would, or might, lose various bene-
fits such as bonuses, vacations, retirement or profit sharing, if the
Unions were successful in the election. The majority of the witnesses
cross-examined bn this point specifically denied they were told their
benefits would be subject to negotiation or "rearrangement." Only
four of the 30 witnesses varied their direct testimony. Employee
Anthony stated that Supervisor Hall "told me so much [of the em-
ployee benefits] I would lose and so much that probably would be
rearranged." The other three witnesses testified that they were told
their benefits would be subject to negotiation or "rearrangement."
3 On November 20, 1961, the Board issued a Decision and Order directing a hearing be-
fore a Trial Examiner on certain objections filed by the Unions herein to conduct affecting
the results of the election , and further ordering Cases Nos. 15-RC-2400 and 15-CA-1977
consolidated.
8 The Respondent contends that the Trial Examiner was biased and prejudiced and that,
as a result thereof, the Respondent was deprived of the right to a fair hearing We are
satisfied , upon our review of the entire record , that there is no merit in this contention
* The Joint Petitioner and Charging Party filed a motion to sever the consolidated cases,
which motion was opposed by the Respondent -Employer In view of the similarity and
interdependence of issues and facts in the consolidated cases the motion is hereby denied
6l1ember Rodgers agrees that the election should be set aside , but he wruld not find
that Trippe ' s speech itself interfered with the election
0 Supervisors Prothro, Hall, Stout, Wilson, Lester, and Edward Trappe
HENDRIX MANUFACTURING COMPANY, INC. 399
Of the three, witnesses Burlie and Tennie Carter were spoken to by
Supervisor Stout, and witness tiVilcott by Supervisor Hall. The
Trial Examiner found that the employees testified truthfully as to
their interpretation of what the supervisors told them.
Respondent's witnesses, the supervisors who allegedly made the
threats, denied they told any of the employees that benefits would be
,cut off. Further, they testified that they told the employees the
benefits would be subject to negotiation or bargaining, as had been
explained to the employees in a 45 minute preelection speech given
by George Trippe, secretary-treasurer of the Respondent on July 18,
1961, and was contained in specific written and oral instructions
given to each supervisor.
The Trial Examiner found that there were substantial variations
and departures by the supervisors from the text of Trippe's speech
and their instructions. As the record shows that the conversations
lasted only a few minutes and were, in many instances, hurriedly
made; that the supervisors appeared to have little independent recol-
lection of the content of the Trippe speech or of the conversations;
and that the vast majority of the employee witnesses testified that
the conversations were at variance with the contents of the speech, we
agree with this finding. However, our acceptance of this finding
compels us to reject as unsupportable either in logic or on the basis
.of the record, that the supervisors nevertheless conveyed to employees
during these conversations substantially the same message as they
received from Trippe's speech, which was not alleged as violative
of the Act.
Our reading of the record, in the light of the Trial Examiner's
findings as to the credibility of witnesses, convinces us that super-
visors Prothro and Lester, at least, threatened employees with loss of
benefits. Supervisor Prothro spoke to eleven of the General Counsel
witnesses, all of whom testified that they had been threatened with loss
of benefits, and whose testimony was unaltered on cross-examination.
As previously noted, the Trial Examiner found that these em-
ployees testified truthfully as to their interpretation of Prothro's
remarks. The Trial Examiner credited Prothro's denial that he
had made any such threats, but found Prothro unworthy of credence
in every other respect, characterizing his testimony as "changing and
evasive, unresponsive, contrived, and replete with contradictions."
For example, on direct examination Prothro testified that employees
repeatedly asked him whether or not they would get their bonuses with
the union. Yet on cross-examination he contradicted his direct testi-
mony and denied that any employees had asked whether or not the
bonuses would be discontinued. In our opinion, the record clearly
shows that the Trial Examiner's characterization of Prothro's testi-
mony is more aptly applied to all of Prothro's testimony-not to just
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selected parts of it. Accordingly, we attach no probative value to any
part of it.
The Trial Examiner found that Supervisor Lester was instrumental
in creating an impression of surveillance in violation of Section
8(a) (1). He found that Lester's testimony "showed inherent im-
plausibilities and material contradictions . . . as well as significant
gaps in memory in identifying employees." Further, the Trial Ex-
aminer did not credit Lester except insofar as his testimony was cor-
roborated by witnesses Sudds and Shelly. Shelly, in addition to his
testimony regarding the impression of surveillance, testified that he
was threatened with loss of benefits by Lester on the day before the
election, and three other witnesses testified to similar threats. Under
these circumstances, and with reliance on the Trial Examiner's credi-
bility findings, we can give little, if any, weight to Lester's denials
of making threats, particularly as to witness Shelly.
In view of the foregoing, we find, on a preponderance of evidence,
that as to the employees spoken to by Prothro and Lester, threats of
loss of employee benefits if they selected the Union as their bargain-
ing agent, were made in violation of Section 8 (a) (1) of the Act, which
conduct also constituted unlawful interference affecting the results
of the election.7
2. The Trial Examiner found that certain remarks made by Super-
visor Prothro to Floyd Thomas on the day following the election
constituted coercion in violation of Section 8 (a) (1). We agree that
the statements attributed to Prothro were in fact made, but we can-
not agree that they were coercive. While Prothro's statement that he
wanted the employees to "pep it up" lest the "boss" think that he,,
Prothro, voted in favor of the union would indicate fear or ap-
prehension on Prothro's part or even indicate antiunion sentiment by
the "boss," it would not necessarily be coercive, since it in no way
reflected adversely on the employees, their job status or the recently
held election.
ORDER
The Board adopts as its Order the Recommendations of the Trial
Examiner with the following modification :
The posting provision of the notice as required by the Order is
amended to read "This notice must remain posted for 60 consecutive
days from the date for posting...."
IT IS FURTHER ORDERED that the election in Case No. 15-RC-2400,
held August 10, 1961, be, and it hereby is, set aside, and that Case
No. 15-RC-2400 be, and it hereby is, remanded to the Regional Direc-
tor for the Fifteenth Region, for the purpose of conducting a new elec-
7 Colvert Dairy Products Company, 136 NLRB 1508
HENDRIX MANUFACTURING COMPANY, INC. 401
tion at such time as he deems that circumstances permit the free
choice of a bargaining representative.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Case No. 15-CA-1977 was brought on an amended charge filed September 27,
1961,' by the Charging Party (as in the above caption ), herein called the Union, and
a complaint by the General Counsel issued on October 6, 1961, against Respondent,
Hendrix Manufacturing Company, Inc., alleging violations of Section 8(a) (1) of
the National Labor Relations Act. Case No. 15-RC-2400 was consolidated with the
complaint proceeding pursuant to the Board's Decision and Order Directing A
Hearing dated November 20, 1961.2 The Board found therein that certain of the
Objections (numbered 1, 2, and 5) filed by the Union (Joint Petitioner) to the
election conducted on August 10, 1961,3 raised issues which could best be resolved
by a hearing 4 and that the conduct complained of in these objections was also the
subject of unfair labor practice allegations in Case No. 15-CA-1977. Hearing
in the consolidated proceeding was accordingly held before Trial Examiner Ben-
jamin B. Lipton in Mansfield, Louisiana, from November 28 through December 1,
1961. All parties participated in the hearing and at the close thereof were afforded
opportunity to argue orally on the record. Briefs received from the Respondent
and the General Counsel have been fully considered.
Upon the entire record in the case and from my observation of the witnesses 5
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Hendrix Manufacturing Company, Inc., a Louisiana corporation , is engaged in
the manufacture and sale of dragline buckets. During the year 1960 , the Company
had a direct outflow of products in interstate commerce valued in excess of $50,000
and a direct inflow of purchased materials in interstate commerce valued in excess
of $50,000. The Respondent admits, and I find, that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Lodge 635 , International Association of Machinists , AFL-CIO, and International
Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, & Helpers,
jointly, constitute alabor organization within the meaning of the Act.
111. THE UNFAIR LABOR PRACTICES AND THE CONDUCT AFFECTING THE
ELECTION RESULTS
A. The allegations in issue
The complaint 6 alleges in substance that various officials , supervisors , and agents
of Respondent , at specified times, unlawfully threatened employees with loss a
company benefits and made certain other threats and promises to employees to in-
fluence their voting in the election and their union activities , solicited employees to
'The original charge was filed on August 23, 1961.
2 The Board ordered that findings of fact and recommendations as to the disposition of
the issues be made by the Trial Examiner designated to conduct the hearing.
$ The election was held pursuant to stipulation for certification for consent election
signed by the parties on July 17, 1961
'The Regional Director had recommended in his report on October 2, 1961, that objec-
tions 1, 2, and 5 be sustained and the election set aside
6 All credibility findings herein are based in whole or part on demeanor of the witnesses
on the stand
3 Respondent at the close of the General Counsel's case-in-chief moved to strike certain
portions of the complaint as not supported by the evidence Ruling was reserved to be
disposed of in the Intermediate Report. The motion is granted with respect to para-
graph 9 ( b) of the complaint alleging interrogation on or about July 3 or 10, 1961, and is
denied as to the remainder of the motion.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get other employees to vote against the Union, created an impression of surveillance
of the employees' union activities, and engaged in interrogation of the employees.
The objections which were referred by the Board for hearing allege in substance
similar threats and interrogations.
B. Supervisors and agents
Respondent admits, and I find, that the following individuals are supervisors
within the meaning of the Act: George Trippe, secretary-treasurer; Jack R. Stout,
supervisor in purchasing, export shipping, and parts; Byron (Tandy) Prothro, mould-
ing foreman; Albert B. Lester, core room foreman; Calvin W. Hall, engineer; J. C.
Robinette, foundry foreman; Lawrence T. Wilson, foreman in welding department;
Floyd M. Simmons, assistant foreman in welding department; and Edward E. Trippe,
sales representative. I also find on the evidence that Otis L. Hendrix, cleaning room
foreman, and William R. Hendrix, assistant manager, are supervisors under the
Act, and that Gordon Golsan, Jr., attorney, at all times material was an agent of
Respondent.
C. Introductory findings and background
There is no indicated history of union organization or labor relations prior to
the appearance of the Union at Respondent's plant and Respondent's first knowledge
thereof on June 26, 1961,7 upon receipt of a copy of the election petition filed by
the Union. Respondent thereafter undertook an intensive campaign to defeat the
Union at the polls. The allegations of the General Counsel concern events which
transpired in the period preceding and shortly succeeding the holding of the election
on August 10. Respondent called its supervisors together in meetings, beginning on
July 7, and instructed them as to their conduct in the election campaign and matters
which they should or should not discuss with the employees. They were told,
among other things, not to make any "threats" or "promises" to the employees,
and that "no supervisor was ever to speak to a member of the voting unit without
another supervisor being present." The supervisors were furnished with a
mimeographed document containing instructions and suggested answers to certain
posed questions. On July 18 George Trippe, scretary-treasurer, delivered a pre-
election speech, lasting about 45 minutes, to the employees and supervisors assembled
at the plant. The speech,8 which, as such, is not alleged as a violation, contained
certain arguments against voting for the Union and attacks upon the Union which
revealed a distinct union animus. George Trippe testified that the supervisors were
told not to go outside the terms of the speech and of their oral and written instruc-
ions. Forty witnesses testified for the General Counsel as to conversations they were
engaged in with supervisors concerning the Union and the election. It would appear
that most of the 207 employees in the voting unit were individually spoken to by
supervisors, usually at their place of work, with the greater part of the conversations
occurring on August 9 and 10, the day of the election. In almost all instances testi-
fied to, there were two supervisors in the discussions with a single employee; on
several occasions Supervisor Prothro had with him John ("Whitie") Wilson, an em-
ployee of 36 years' service with the Respondent. Many of the supervisors testified
that they told the employees "the same thing" or "the same general trend" and that
they strictly followed their instructions and the Trippe speech. However, consider-
ing only the testimony adduced by Respondent, significant variations are revealed as
to conversations with the employees conducted by the same supervisors and as be-
tween different supervisors. It is also to be noted generally that Supervisors Prothro,
Hall, and Lester, who spoke to the great bulk of the employees in question, displayed
in many instances little or no independent recollection of their talks with particular
employees and gave their testimony, frequently in response to leading questions, in
T All dates herein are in the year 1961
8 A tape recording had been made of the speech and a typewritten transcription thereof
was offered by Respondent In evidence at a point In the hearing when, in my opinion, no
proper foundation, as to relevancy and materiality had been laid. Over objection my
ruling was to reject the exhibit at that point, and I instructed that it be placed in the
rejected exhibit file, but Indicated that Respondent "may have an opportunity later on,
perhaps, to reintroduce it " Thereafter, George Trippe testified of his own recollection
on the contents of the speech, and numerous references to the speech were taken in the
testimony of other witnesses However, the exhibit was not reoffered. As I am satisfied
that a proper basis for its admission was ultimately furnished, that the transcription of
the speech is useful and enlightening as background material, and that no prejudice will
result from the ruling-I admit the exhibit in evidence for the limited purpose stated
(Respondent's Exhibit No 4 )
HENDRIX MANUFACTURING COMPANY, INC. 403
the form of conclusions as to the content of the conversations rather than what was
actually said . These factors have been taken into account in assigning relative weight
to the testimony.9
Following the election, Attorney Golsan for Respondent undertook systematically
to interview the employees , using a tape recorder , ostensibly to investigate and pre-
pare Respondent 's case in anticipation of litigation relating to objections to the elec-
tion and unfair labor practice charges by the Union . Over 200 of the employees
were ordered to report to George Trippe's office in the plant and, usually in the
presence of George Trippe or some supervisors , were first told the purpose of the
interview and then separately questioned by Golsan generally as to whether the
Respondent or the Union had made any threats or promises to them . Attorney
Golsan is charged in the complaint with unlawful interrogation in certain specific
instances ; these will be treated below. There is no allegation that the technique
or conduct of these interviews , as such, violated the Act. Most of the General
Counsel's witnesses were questioned at the hearing respecting the Golsan interviews.
Golsan, who examined witnesses and actively participated throughout this proceed-
ing as counsel for Respondent , also took the stand and testified at length concerning
the tape recorded interviews . 10 Respondent offered in evidence what it purported
to be typewritten transcriptions of the tapes, together with the corresponding tapes,
covering the separate interviews of a large number of employees for the purpose
of impeaching the testimony of these employees . Over objection , the offer was
rejected and the exhibits placed in the rejected exhibit file 11
D. The relevant evidence on the merits
1. Alleged threats to cut off benefits
As background in considering this issue, it is useful at the outset to look at the
"kickoff" speech of Secretary -Treasurer George Trippe on July 17. Trippe testified,
and the exhibit of his speech indicates , that he listed and discussed at length various
company benefits which the employees enjoyed without a union, e.g ., wages, bonuses,
vacations, hospitalization insurance , profit-sharing plan, and working conditions.
The following then appears in the exhibit:
(Again pointing ). This line in the middle of the board represents the
present . Let us say it represents "Election Day, August 10th." All of these
things which are behind the line, under the word "NOW," you and I know to
be facts because they have already happened and are happening right now.
Beyond the line, under the words "Under A Union What9" we didn't know
anything to put.
If you men vote the union in here, so far as the Company is concerned, we
have to start all over. (Take signs down ). Negotiations will be started with
the union with a new , clean slate . They will get for you ONLY what they
are able to negotiate into a contract with the Company when they get to be
your bosses . [ Emphasis in original.]
The allegations as to threatened loss of benefits absorbs most of the testimony in
the case. No substantive use would be served by relating all the detailed testimony
9 I do not credit the testimony of any of the Respondent ' s supervisors to the effect that,
In their discussions with the employees , they strictly adhered to their instructions and
to the substance of the Trippe speech
1° Cf Wiginore ' s Code of Evidence , 3d ed , sec. 1943
i Among other things , the employees at the interviews were asked for conclusions of
law as to whether they were promised or threatened, the prior inconsistent statements
which Respondent asserted to be established in certain tapes concerned remote and ir-
relevant matters , and as to others no specific conflict was pointed out , no proper founda-
tion had been laid as to authenticity ; the tapes contained unsworn statements and in
virtually all cases were not played back to the employees ; the entire conversations with
Golsan were not recorded , as the general testimony indicates , Golsan was unable to testify
of his own memory as to the particular interviews with specific employees ; and the
employees who were commanded to report and were questioned in the office in the presence
of a company official cannot be regarded as having given their testimony freely and with-
out duress . Cf. General Shoe Corporation, 97 NLRB 499 , 502 ; Bowmar Instrument
Corporation , 124 NLRB 1 , footnote 2 ; Supreme Trailer Company, 115 NLRB 902 In the
circumstances , the tapes and transcriptions did not rise to the stature of admissible
exhibits , even though I would attach no weight to their contents If they were admitted In
evidence . Cf Walton Mfg Co , 124 NLRB 1331
672010 -63-vol 139 - 27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the various witnesses on this general issue. The pertinent evidence may fairly
be summarized. Thirty employees 12 testified in various forms to the effect that
certain supervisors told them they would, or might, lose their company benefits
(sometime specifying bonuses, vacations, retirement or profit-sharing) if they voted
in the Union. In substance, the supervisors denied they told any of the employees
benefits would be cut off, but testified they discussed the different company benefits
and then said that if the Union got in, "everything" or "all" the benefits would be
subject to negotiation or bargaining or arguing with the Union. On cross-examina-
tion, employees Anthony, Wilcott, Burlie Carter, and Tennie Carter testified they
were told the benefits would be subject to negotiation with the Union, or "re-
arranged." 13 The testimony of Wilcott, for example, sheds some light on what was
said and how it was understood, in my opinion, by the employees generally:
Q. (By Respondent's counsel.) Now, as a matter of fact, they discussed
with you that if the Union came in all that [i.e., the benefits] would have to
be negotiated, didn't they?
A. Said all of that would be changed.
Q. Would be subject to negotiation?
A. It would be subject to negotiation, whatever you call it, I don't know
what you call it.
Q. That's what I mean. It would have to be done all over again?
A. It would have to be done all over again than what it was. That's how I
understood it in my understanding.
Q. That's the point I am trying to make. You understood that it wouldn't
be automatically continued as is, that it would be renegotiated, more or less up
for grabs again?
A. I didn't understand it exactly like that.
Q. Well, you know what negotiations mean, don't you?
A. No, sir, I don't.
Q. Where did you get that word from when you gave it to Mr. Johnson [of
the General Counsel] in your statement?
A. I remember what he said.
Q. In other words, you remember that Mr. Hall and Mr. Prothro, they told
you about it, that it would have to be negotiated?
A. Yes, sir.
Anthony, who used the term "rearranged," similarly testified to a lack of under-
standing of what was meant but agreed that it was "exactly" as in the Trippe speech.
Burleson also stated that on this point it was no different from the Trippe speech.
Assistant Manager Hendrix affirmed on cross-examination that in his presence George
Trippe told employees Louis Pea and Tennie Carter that the Respondent "would
start off with a clean slate" in negotiations with the Union concerning benefits
Although I find, on the record, that there were substantial variations and departures
by the supervisors from the text of Trippe's speech and from their instructions, and
while I believe that the 30 employees testified truthfully as to their interpretation of
what the supervisors told them,14 I am constrained, nevertheless, to hold on this issue
of benefits that the message actually conveyed to the employees by the supervisors
was substantially that which they heard in the Trippe speech 15 However, on this
12 All employee witnesses of the General Counsel with the exception of Johnson, Whitaker,
Marsh , Kelly, Sudds, Simpson, Aaron and Felton Turner, J D Woodley, and Davis
13 Anthony and Walcott were spoken to by Supervisors Hall and Prothro, Burlie and
Tennie Carter by Supervisor Stout, and Tennie Carter also by company officials, George
Trippe and William Hendrix
14 The subjective state of mind of the employees is not controlling in determining the
legality of an employer 's statements Law Tanning Company, 123 NLRB 1748
151 reach this conclusion although the matter is by no means tree of doubt that some of
the 30 employees who testified they were told the benefits would be cut off may have been
told that and no more It is evident from all the testimony that there were varying inter-
pretations of Trippe' s speech on this subject not only by employees but by supervisors
Supervisor Prothro estimated that he spoke to 40 or 45 employees on August 9 and until
noon on August 10, and that each conversation lasted but a few minutes (as compared
with the Trippe speech which took about 45 minutes) To some employees lie indicated
that lie was in a burry, in order to cover all the employees on his rounds Prothro was
involved in the conversations with 28 of the 40 employee witnesses of the General Counsel
It is conceivable in these circumstances that he may have left much unsaid or unexplained
Moreover, as noted below, Prothro was prone to be unresponsive and unable to stick to a
point or subject, and his testimony has been discredited on other issues
HENDRIX MANUFACTURING COMPANY, INC. 405
basis, I am of the opinion that the results of the election cannot be certified as re-
flecting the employees' free and uncoerced expression of choice as required in the
law. In the entire context as described, and considering particularly the statements
in the Trippe speech, quoted, supra,18 which were in substance conveyed to the em-
ployees by the supervisors alleged, I find that Respondent reasonably calculated to
impress on the employees the threat to discontinue benefits prior to bargaining with
the Union, and to oppose in bargaining, at least initially, any request for continua-
tion of existing benefits, and that, therefore, the benefits would be jeopardized if
the employees voted for the Union.17 While I have concluded that the election was
interfered with and will recommend that the results be set aside, I make no finding,
in all the circumstances, that the Respondent by the same conduct violated Section
8 (a) (I), as alleged. 18
2. Profit sharing and retirement
Apart from its inclusion in the general subject of benefits discussed above , an issue,
not otherwise spelled out in the complaint, is apparently raised by the General Coun-
sel in the testimony of witnesses concerning an alleged threat by certain supervisors
that, if successful in the election, the Union will not be able to obtain for the em-
ployees immediately the profit-sharing contributions made by Respondent into a
retirement fund. There is little or no material conflict in the testimony of the
employees 19 and the version given by supervisors on this point. As explained by
the supervisors, taking Edward Trippe's statement as illustrative:
as far as his retirement is concerned, that the company had given that
freely and that it was in trust and that I understood that it was also set up by
the Treasury Department and OK'd by the Treasury Department and this trust,
once the company passed that money on to the trustee, that it was no longer
available to the company, that within the retirement practices, the framework-
in other words, within the little blue book that he was given, it explained in
there that to him, that it contained the employee's money and passed from the
control of the officers of the company; and the reason, actually, for going into
the retirement plan was that there had been a rumor that if the union were
elected that they could come in there and make us pay off this retirement plan,
and I explained to him that that absolutely was not true, that in the little book
he had, if he would just seek it out, that he would find in there where it is set
up, that any contribution by the company would keep the plan in effect until
his retirement, at which time he would draw it down.20
On this question, while the source of the asserted union rumor is not clear, and
Respondent's legal interpretation of the formal retirement plan (in evidence as the
"blue book") may be open to question, my finding is that the explanation given
the employees constituted no violation of the Act or interference with the election.
3. Instruction to talk to other employees
Jesse Lee Kelly testified that he was called down from his crane on August 10
by Supervisors Hall and Prothro. Hall "wanted to know was I going to vote for
18 It may be noted further, for example, that on the subject of "The Profit-Sharing
Plan ," the Trippe speech stated in part: "Can the Union get a continuation of these gifts
of this money negotiated in a contract with the Company'+ They were not able to do it
at the Trailer Plant [of the Nabors company nearby]. We hope it will never be necessary
to do away with your Profit-Sharing Plan, but I warn you that if you elect a union in
here , that Profit-Sharing Plan is subject to negotiation and neither the union nor anybody
else can force us to continue or discontinue this Plan. That decision is strictly up to
this Company " [Emphasis supplied ]
14 E g , Rein Company, 111 NLRB 537 Norres-Thee mador Corporation, 117 NLRB
1340 I have carefully considered Interstate Hosts, Inc, 130 NLRB 1614; Universal
Producing Company, 123 NLRB 548, and Nash-Finch Company, 117 NLRB 808, and
would distinguish these cases on the particular facts and context But even assuming a
conflict, as the Rein and Noires cases have not been overruled, I would rely on them as
representing the proper law on the facts of the present case
1s See Bowmar Instrument Corp , 124 NLRB 1, footnote 2
1s Whitaker, Ernest Johnson, Burleson, Drain, Marsh, Simpson, Dai is, J. D. Woodley,
and Willie Jones
201n George Trippe's speech, it was stated in part "Under the terms of this plan, the
money which the Company contributes to it becomes YOUR money to be distributed to you
as outlined in the Plan. When this money is deposited with the Trustee which is the
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union and I told him I wasn't and he said they didn't need the union, that the
union wouldn't do us any good and told me that he believed that I would see the
light, to get with some more of the men and talk with them, you know, and make
them see the light cause the union wouldn't do us any good, and Mr. Prothro asked
me did I work on a union and I told him no, sir.. . Prothro and Hall denied
the interrogations but not the instruction to talk to the other men. Based on cor-
roborative aspects of the record elsewhere, as well as the demeanor of the witnesses, I
credit Kelly. In conversations with the same two supervisors, Oscar P. Wilcott
credibly testified that Prothro on August 10 told him "to go around talk to the men
to help the company win the election," and Sanders Anderson credibly testified that
on August 9, when he told them he "was only one person to vote for the union,"
Prothro said, "Well, go and tell your friends not to vote for it." Except for Prothro's
disavowal of any conversation with Wilcott on August 10, there were no denials by
Prothro or Hall of these statements to the two employees. In the circumstances, I
find that Respondent, by using the power of management to instruct employees to
get other employees to vote against the Union, restrained and coerced employees in
violation of Section 8(a)(1) and interfered with the election.21
4. Other particular coercive statements
Archie J. Marsh testified to a conversation on August 9 with Prothro in the
presence of employee "Whitey" Wilson. Prothro told him, among other things, that
"under a union the kind of work we do-we work cleanup sometimes and we
get through 30 or 40 minutes before our eight hours is up and he said under a union
we would have to punch out regardless of every time we got through, even if it
was six or seven hours, that we would have to punch a clock." On cross-examina-
tion, Marsh agreed that Prothro mentioned that the Nabors plant nearby had a
contract with the Union which provided that the employees had .to punch out when
they were through working. Prothro verified that he talked to Marsh but did not
recall who else was present or whether there was any discussion on the subject
of punching out or working hours. Wilson, testifying for Respondent, did not
recall that Prothro had any other conversation with Marsh beyond the general
subject of benefits. I credit Marsh and find that Prothro 22 impliedly threatened
discontinuance of paid cleanup time if the Union won the election. Assuming that
the Nabors plant had a contract provision requiring that the men punch out before
cleaning up, to which the union agreed as a concession in the give and take of
bargaining, for Prothro to assert, as I find he did, that the same condition would
prevail at Hendrix with a union in .the plant constituted an unlawful threat, and not
a fair prediction of possible future events.
Eddie Hall testified that about a week or two before the election he spoke to
Supervisor Lawrence Wilson in the plant and "asked him if I would lose my job
and he said no, I could lose it." Wilson gave his account of this conversation in
some detail, testifying that Hall came into his office and asked him "if he voted
for the union would he lose his job . . . and I told him definitely no ... as long as
he continued to work in the future as he had in the past." Hall displayed a poor
recollection of time and events and, on the state of the record, I do not credit his
version of the conversation. I find no violation.
Johnnie J. Hewitt testified that about August 8 he was approached by Supervisors
Wilson and Simmons. Wilson said, "'as you knew the company doesn't want the
union in here.' So, I explained to them that I wasn',t particular about it, because I
was afraid I was going to have to go to the Army anyway and I wouldn't want
Republic National Bank in Dallas, Texas, it passes completely out of the reach of the
Company."
21 New England Upholstery Co. Inc., 121 NLRB 234; Ore-Ida Potato Products, Inc .
121 NLRB 40, Babcock & Wilcox Co, 128 NLRB 239
22 Except for admissions and corroborations, on the basis of his demeanor and broad
defects in his testimony, I do not consider Prothro worthy of credence. While it is
understandably difficult for a man who spoke to so many employees in a short time to
recall details, his testimony, nevertheless, was changing and evasive, unresponsive, con-
trived, and replete with contradictions. On cross-examination, when asked for specifics
on matters to which he testified with certainty on direct, he was equally positive in giving
contradictory versions or revealingly showed lapses in memory. I further note, for ex-
ample, that while Attorney Golsan testified that he played back the tape of Tom Jones to
Supervisors Prothro and Hall and possibly to George Trippe-Prothro stated that he
"couldn't swear" that he knew of Respondent having taken tape recordings of the em-
ployees and flatly denied that he heard any of the tapes played back.
HENDRIX MANUFACTURING COMPANY, INC. 407
the company angry with me about it, and he said, 'Well, if you went to service and
came back you could still get your job back if the union wasn't voted in."' Simmons
added that "I could possibly lose my job if he union was voted in." Wilson and
Simmons denied that Hewitt was told that, if he went into the Army and a union
were voted in, he could not get his job back, or that he "could possibly lose his job."
On the demeanor of the witnesses, I credit Wilson and Simmons and find the state-
ments they actually made were not objectionable.
John Rambin spoke to Supervisors Simmons and Wilson in the latter's office in
the morning of August 11, after the election. Rambin testified that he told them
there was nothing personal in his being an observer for the Union at the election,
that Simmons said, "it was better that he didn't vote the union in because he didn't
believe the company would sign a contract with the union ... and they might have
to tighten down on us more if they had a union in there," and that Wilson said
"the company was not very rough in its, in this election, but they might be the next
time." Simmons denied such statement and testified that Rambin came in and told
them "he didn't want anybody in the plant to be mad at him over the position he
took in the thing . . . I remember telling him one thing, that even with or without a
union out there I believe we had a right to expect eight hours work for eight hours
pay " Wilson essentially corroborated Simmons. I credit Wilson and Simmons and
find no breach of the Act.
Tom David Jones testified to conversations with Supervisors Prothro and Hall
on two occasions: On August 10, Prothro told him, "Now, we don't want the union
here and we are not going to have it . . . if you know what's good for you, you
know, just any matter what's good for you, well, you will vote no on the election."
And Hall said, among other things, that "probably you will lose your job." About
3 weeks after the election, Prothro told him, "Well, everybody knows what's good
for them," which meant to Jones, "you know, what's good for us, just like we was
going to lose our jobs, or something " He said Prothro also referred to him
as being a union leader. Prothro and Hall denied these statements were made. I do
not credit Jones, as I find he was confused and overly prone to misinterpret state-
ments made to him.
Floyd Thomas testified that on the day after the election, Prothro, alone, remarked
to him, "'Floyd, the boss is down there,' which was Mr. Bill Hendrix, . . . 'and he's
kinda mad. He aint said nothing to you but he will get me. . . . We won by a
small margin. You all are going to have to kind of pep it up because I don't want
him to think I voted for the union."' On cross-examination, Thomas made it clear
that Prothro was talking about himself in saying that the employees were going
to have to "pep it up" because he did not want "the boss" to think that Prothro was
for the Union. Prothro testified that he had no such conversation with Thomas after
the election. I credit Thomas and find, in the context, that Prothro's statement
was coercive 23
Saul Vance testified to two conversations, on August 9 and 10, with Supervisors
Hall and Prothro, employee Fred Anthony also present. As related by Vance,
on the morning of August 10, there was a similar discussion concerning general
benefits as was had with him on August 9, but in addition Hall said that he wanted
the employees to understand to try to keep the union out of there, that they were
doing all right and the Company would do better by them later on, that "they wouldn't
promise us anything at the time being, but if we get rid of it, well, why, they could
probably do something else about it." Hall and Prothro testified there was only
one conversation with Vance in the afternoon on August 9, and that no one else
was present. They denied any statement was made promising benefits or something
later on. Anthony had earlier testified that he and his helper, presumably Vance,
were spoken to by Hall and Prothro on the morning of August 10. Anthony described
only a discussion concerning general benefits and was not asked as to any other
conversation I credit Vance and find that an unlawful promise of future benefit
was made
Ernest Johnson testified that on August 10, Prothro, in the company of Supervisor
Lester, told him in a discussion about the Union, among other things, that Respond-
ent could close down the plant for 3 months. On cross-examination, Johnson
firmly denied that anything was said about a union strike causing the shutdown.
Prothro testified he told Johnson it was possible that in contract negotiations the
parties would not reach an agreement, that the Union could call a strike and the
plant could be down 60 or 90 days. Lester denied there was any discussion at all
23 Although the complaint did not specifically allude to this incident on August 11, it is
related to the other allegations of Section 8(a)(1) conduct and was fully litigated at
the hearing
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about a strike or a shutdown. I do not believe that Prothro, making the hurried
rounds as he was, spelled out to Johnson the possibilities of a shutdown stemming
from a union strike.24 Considering also the demeanor of the witnesses, I credit
Johnson and conclude that there was, at least impliedly, an unlawful threat of a
company shutdown.
Learlis Johnson testified that on August 9 he was called over by Supervisors Lester
and Otis Hendrix, and that Lester told him he could go down there and vote either
way he wanted; he could go down there and cut his throat, it made no difference
to Lester. On cross-examination, Johnson added to his testimony on direct, that
Lester told him if the Union got in "we will lose-I will lose my job." I credit the
denials of Otis Hendrix, and of Lester in this instance, that such statements were
made.
In the findings above as to Marsh, Thomas, Vance, and Johnson, Respondent
violated Section 8(a)(1).
5. Impression of surveillance and other coercion of Supervisor Lester
David Sudds and Clarence Price testified that, at about 8:30 p.m. on Wednesday,
August 9, they saw "Bed" Lester in his car slowly driving back and forth in front
of the hotel on Jenkins Street in Mansfield. Thereafter, Sudds walked to his car,
which was parked nearby on a vacant lot next to the cotton warehouse, and drove
off. Sudds testified that, early the next morning at the plant, Lester said, "'You
was at a union meeting last night.' I told him, no I wasn't. He said, `Well, that's
all right,' and, then, he said, `Well, the company has [done] a lot for you and you've
got a good job and don't mess your job up. . ."'
A. B. Shelley, on Thursday, August 10,25 was called into the company office where
he was questioned by Attorney Golsan, in the presence of George Trippe and G. B.
Hall, an official, and with the use of a tape recorder. Shelley testified Golsan said,
"'On Wednesday night where was your car at?' He said, `Were you at a union
meeting or was your car there9' I said, 'No, sir, my car wasn't.' He said, `Did
you know it was a union meeting9' I said, 'No, sir.' He said, 'Where was your
car?' And I said, 'My car was in the body shop,' which it was. And, so, that's all."
About 1:45 p.m. on August 10, when he was back on the job, Shelley had a con-
versation with Supervisor Lester Shelley testified, "Well, I just told him that some
of them had accused me wrong of being to a union meeting and he went in his
back pocket and got a notebook where he done checked my license number from
somewhere " Lester sad, "Well, I accused you wrong; it wasn't you. It was David
Sudds up there."
I credit the above version, which in substantial parts is corroborated in Lester's
testimony. Lester sought to explain this conduct the night of August 9 as a proper
function, unrelated to any union activity, which he undertook as a police commis-
sioner,26 a position he held in addition to his job at Hendrix. Lester said that he
was driving down Jenkins Street and saw "a big crowd of colored people over at
a hotel," that he noticed suspicious activity near the cotton warehouse ("three of
these colored boys" driving toward a hedge to hide) and circled back and forth
to see what it was, that he recognized David Sudds crossing the street, and that he
then saw someone furtively get into a black and white Mercury car, with Sudds enter-
ing the car afterwards, and they drove off.
While I believe that Lester's purpose was at least in part to check on a known
or suspected union meeting,27 I do not pass on whether there was surveillance, as
24 Upon this issue , as well as others in the case , I believe the Respondent was obliged to
give complete and understandable information to the employees, particularly in view of
the large mass of "relatively uneducated" employees in the plant, as was evident
25 Shelley was unsure of the date and, although he variously stated that it was "after
the election," "about the 12th," and "about 3 days after the election," he also indicated
that it was on a Thursday, which was August 10 The sequence of events related by
Shelley, including his talk with Lester about the meeting, would place the date on
August 10. Lester's testimony would also appear to establish the date as August 10.
2BLester testified that for 71/2 years as police commissioner, he supervised the police
department, with six city policemen, and the fire department Sudds testified he was not
aware that Lester was police commissioner
' Lester put it that "it wouldn't pertain to the union too much " On cross-examination,
he admitted, "If I hadn't of thought that was a union meeting . . . I would have called
the police to check this business of slipping around the warehouse over there " Attorney
Golsan testified Lester told him he thought the Union was having a meeting within the
24-hour period
HENDRIX MANUFACTURING COMPANY, INC. 409
such. The General Counsel alleges only that Respondent created an impression
of surveillance.
Lester testified that the next morning, Augst 10, when he and Prothro were talk-
ing to Sudds generally about the election, he mentioned the fact that he saw Sudds
the night before, that "it didn't make any difference if you was down there at a
union meeting . . . you can go down there and vote any way you want to; that has
nothing to do with it." Concerning Shelley, Lester explained that, in the morning
of August 10, there was a good bit said among the employees at the plant about
this meeting at the hotel. "They said they had a big crowd down there and had
a colored preacher to lead in prayer, and they just had a regular meeting." He later
saw Shelley, "who, I thought this car belonged to him, because he has a black and
white Mercury, well, I passed by and I says `Well, I know one that was down there,
I saw a black and white Mercury and I recognized one of the boys', . . . and Shelley
said, `Well, it wasn't my car and it wasn't me, I wasn't down there. . My car is
being fixed in the garage, I had a wreck.' " On cross-examination, Lester stated that
he thought it was Shelley's car, but found out later it was Sudds' car. He had taken
the license numbers of two cars on the night of August 9 and found out at the
police department at noon on August 10 who the owners were. He said he talked
"from time to time" to the company people about the information after he got it,
and "laughed" about it, and that he believed he discussed the matter with Attorney
Golsan 28
Prothro, who was present when Lester spoke to Sudds on August 10, was not
questioned on this matter. Nor were George Trippe or G. B. Hall, who Shelley
testified were in the office during the Golsan interview on August 10. Golsan was
not asked specifically as to his August 10 conversation with Shelley,29 but he generally
denied interrogating as to union activity any employee but Sudds 30 My finding with
respect to the allegations against Golsan will be made below.
I do not credit Lester 31 except insofar as his testimony contains admissions and
corroborates the versions of Sudds and Shelley. Accordingly, I find that Lester,
despite his assertions that it made no difference, unlawfully (a) interrogated Sudds
respecting a union meeting, (b) in conjunction therewith threatened Sudds with
loss of his job, and (c) in conversations with Sudds and Shelley on August 10,
created an impression of surveillance of union activities, in violation of Section
8(a)(1), as alleged
6. Allegations against Attorney Golsan
Sudds testified that about 2 weeks after the election he was interviewed on the
tape recorder by Golsan in the presence of G. B. (Cliff) Hall and another person,
unidentified, who works in the office.32 As described by Sudds, Golsan asked:
was I at a union meeting hall on the 9th and I told him no, sir, and he said
did the union promise me anything and I told him no, did the foundry promise
me anything and I told him no, and did I see Mr. Red Lester's car and I told
him yes, sir, and he asked me how many times he passed and I told him three
times.... And I told him that I was accused of going to a union meeting. And,
then, he asked me who was there and I told him the folks that lived there. He
asked me was any group of the foundry there and I told him, no sir, and, then,
he asked me, just tell him who was there and I told him I thought that would
be out of my place to tell him who was at a public place like that33
Golsan testified that, 1 or 2 days after the election, he called in Sudds and asked
him "whether there had been any such union meeting, if he had been at that meet-
28Golsan testified Lester spoke to him about Sudds.
10 Shelley was also among the employees generally interviewed by Golsan later
91 Golsan , on cross-examination , said he "could have" asked employees if they saw
Lester's car on the night of August 9.
a Based on my assessment of the probabilities in light of all the evidence , as well as
the demeanor of the witnesses on the issues in question As a witness , Lester impressed
me as being too assertive and voluble, and his testimony , as I find , showed inherent im-
plausibilities , and material contradictions in his direct and cross -examination as well as
significant gaps in memory in identifying employees.
as Golsan indicated that Bill Hendrix, George Trippe, Calvin Hall, or Cliff Ball could
have been there
13 At the conclusion , Sudds asked Golsan to play the tape back for him , and on the
playback Sudds failed to hear anything therein about his statements regarding Red Lester
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing." 34 On a leading question, Golsan said he was "quite certain" he told Sudds
that whether or not he had been to any meeting, it would make no difference insofar
as his job security. Beyond these statements, Golsan indicated he had little inde-
pendent recollection of what transpired in his conversation with Sudds. He ad-
mitted that he asked Sudds if the union organizers known to him were present at
the meeting but denied that he inquired about the foundry employees. After talking
to Sudds that day, Golsan discussed the matter with certain company officials, whom
he refused to identify on a claim of privilege.
As already shown above, Golsan interrogated A. B. Shelley in the morning before
the election, on August 10, concerning a union meeting the night before. Fred
Allen testified he was asked in the Golsan interview if he voted for the Union.
Columbus Whitaker testified that Golsan asked him if he voted in the election 35
and also if he voted for the Union, and that on receiving a negative answer to
the latter question, Golsan said, "I imagine you did." Willie J. White testified
that Golsan asked him if any of the union agents had talked to him concerning
the election, mentioning specifically Union Representative Trapagnier. Lonzie
Thomas testified that Golsan asked him if the Union ever visited his house, and he
replied in the negative. While Golsan testified he could not recall his interview
of Allen "as an independent name," he denied "positively" that he asked Allen if he
voted for the Union He also denied asking this same question of Whitaker, and
was not questioned as to White and Lonzie Thomas. Golsan said he previously
instructed each employee that he was not interested in how he voted. However, he
stated he did not recall but it was possible that he asked employees whether the
union representatives called on them within 24 hours of the election.
Golsan said his purpose in interrogating Sudds was to determine whether there
was such a union meeting on August 9. He explained as follows: He had heard
one of the union agents remark, after the counting of the ballots at the election, that
"the company had continued their politicking . up until just before the election
started and that . . . the union had not done that, that they had stopped 24 hours
before the election started," and that the Union "will not let this election go as it
stands." On Respondent's instruction, he undertook an investigation to ascertain if
there had been a union meeting within 24 hours,36 believing "that would be a
violation." It was his thought "that this type of proceeding was rather in the nature
of an equity proceeding and that anything we might have accidentally done would
be offset by their having done the same thing " Golsan explained further that "when
formal charges had been lodged" by the Union, he undertook to obtain statements
from each of the employees on a tape recorder, a matter which took 2 or 3 days 37
He said he told each employee he had been employed to invesitgate "both charges
and countercharges" concerning irregularities in the election, and that he wanted to
learn of any wrongdoing by the Union to defend the interests of the Company.
The original unfair labor practice charge was served an Respondent August 24
and the Union's objections to the election were filed with the Board on August 17.
As found, Golsan interviewed Shelley on August 10 and Sudds no later than Au-
gust 12. It further apears that Golsan must have begun his extensive interviews
before August 18, as on the date an affidavit (in the record in Case No. 15-RC-2400)
was executed by employee Pastor Lee Hogan showing Golsan's routine interview of
8' Golsan stated that Sudds had been interviewed again later, the same as the other
employees On cross-examination, Golsan said that Lester spoke to him regarding Sudds
on the day of the election, August 10, and that lie called in Sudds sometime following the
election. I find that the alleged interrogation of Sudds took place no later than a day or
two after the election and that Sudds In his testimony had combined both interviews
se Golsan stated that he asked each employee he Interviewed if he voted in the election
to find out whether the employee was in the voting unit While no finding is made as to
this question asked, It may be noted that Respondent for purposes of the election must
have had a list of eligible employees and also an observer at the election.
31 Under the Board's Peerless Plywood rule (107 NLRB 427), an election will be set
aside where either the employer or the union makes an election speech on company time
to massed assemblies of employees within 24 hours of the time scheduled for holding an
election The rule does not prohibit employers or unions from making campaign speeches
on or off company premises during the 24-hour period if attendance is voluntary and on
the employees' own time, nor does It interfere with the rights of unions or employers to
circulate campaign literature on or off company premises at any time prior to the election
or prohibit use of any other legitimate campaign propaganda or media.
87I doubt seriously that the interviews of 206 employees, with all the procedures and
preliminary explanations described by Golsan, would consume only 2 or 3 days.
HENDRIX MANUFACTURING COMPANY, INC. 411
this employee . 38 Golsan averred that he himself took it in a "joking manner"
when Lester told him that he thought the Union was having a meeting within the
24-hour period. Yet the course which he followed thereon belies any attitude
of levity. It is very difficult for me to believe Golsan 's reasons for interrogating
employees about a suspected union meeting and for his questions about the Union
in the extensive interviews of employees. The Peerless Plywood 24-hour rule (see
footnote 36) was in effect for over 7 years and well settled at the time of these
events. It is utterly far fetched, particularly for a lawyer, to construe the rule as
embracing a union meeting voluntarily attended on the employees ' own time off
company premises , or to read the rule as justifying the employer 's breach thereof
if the employer were able to show the union did the same thing. It greatly strains
credulity that Golsan and Respondent actually relied upon such a gross misconcep-
tion of the law. Nor, in my opinion , would the offhand remarks allegedly made
by the union agent at the counting of the ballots, and before any formal objections
were on file , privilege counsel to engage in the interrogations in question . Neither
can I see any justification , particularly in the circumstances surrounding the sys-
tematic tape recorded interviews , of the scope of Golsan 's exploration concerning
union conduct and activity , where the interviews were begun in advance of any
formal charges filed and where the charges would involve only alleged employer
violations. Whether Golsan proceeded as he did on the basis of a mistake in law,
which is no excuse, or his explanations are merely a cover or pretext for engaging
in improper interrogation ,39 I find that certain of his questions concerning the em-
ployee's union activity exceeded the bounds of privilege and reasonable necessity
in preparing Respondent 's case for litigation4e In all the circumstances , and on the
demeanor of the witnesses involved, I do not credit Golsan's general denials that he
interrogated , concerning union activity , Shelley, Allen, Whitaker , and Lonzie Thomas.
I also credit Sudds' version of the questioning by Golsan. I find that such interroga-
tions on Attorney Golsan's part were coercive and violative of Section 8(a)(1).
7. Other interrogations
Aaron Turner testified that about 2 weeks before the election he asked Supervisor
Robinette, "'what about that union business,' and he told me 'I can't tell you nothing.
That's left strictly up to you . Have any of them talked to you?' and I told
him yes, that they came to my house so much that I got tired of them. and he laughed
and he said that Mr. Barnhill said some come by his house, too." Robinette denied
the alleged interrogation, although he said he "could have" made the statement
about Barnhill. I credit Robinette, and find no violation. Louis J. Pea testified that
3 or 4 days before the election George Trippe, with Bill Hendrix and employee
Tennie Carter present, told him he heard Pea was one of the union leaders and if
the Union came in Pea would be paid $2 an hour-which Pea denied. Trippe said
that he had heard a rumor from one of the supervisors that he Union had promised
$1 90 an hour to some of the employees, specifically including Pea, and that he
told Pea the Union might have difficulty fulfilling such a promise, if it was made.
While Trippe was not asked about his accusing Pea of being a union leader, I credit
his version of the conversation and conclude there was no violation.
It has been found above that David Sudds was interrogated by Lester as to
whether he attended a union meeting, and that Jesse Lee Kelly was interrogated by
Supervisor Hall as to whether he was going to vote for the Union. Lee Price testi-
fied that Supervisor Prothro, in the company of "Whitey" Wilson, asked him if he
ever belonged to a union , and that he replied in the affirmative . I credit Price against
the general denials of Prothro and Wilson. Lonzie Thomas credibly testified that
about 2 weeks before the election, Prothro, with "Whitey" Wilson, asked him if he
was for the Union.
Accordingly, I find that Respondent, in addition to the holdings above as to
Golsan, unlawfully interrogated Sudds, Kelly, Price, and Lonzie Thomas. All these
interrogations , considered in the context of Respondent 's clear union animus, and
38 On the basis of this affidavit , In which it is asserted that about 30 to 40 days before
the election an employee "union leader" had promised Hogan money to vote for the Union,
Respondent sought in the instant proceedings by various motions and exceptions to dis-
miss all the Union's objections and the allegations in the complaint case, and asked
the Board to issue a cease -and-desist oider against the Union on a violation of Sec-
tion 8 (b) (1) (A)
In any event , I discredit the former and find the latter
^l See, e K , T.uidgail Sea gpaperg, Inc, 110 NLRB 680, and cages cited herein
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other unfair practices found herein designed to thwart the employees' right to
self-organization, violated Section 8 (a) (1) of the Act.41
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1) of the Act, I will recom-
mend that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. It has also been found that Respondent interfered
with the election conducted on August 10, 1961. In view of the variety of acts of
interference, coercion, and restraint committed by Respondent, I shall recommend
a broad cease-and-desist order against interference in any manner with the employees'
rights guaranteed in Section 7 of the Act. I shall also recommend that the election
be set aside and another be conducted at such time as may be appropriate.
Upon the basis of the foregoing findings of fact and upon the entire record in .the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Hendrix Manufacturing Company, Inc., is engaged in commerce
within the meaning of the Act.
2. Lodge 635, International Association of Machinists, AFL-CIO, and Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, jointly, constitute a labor organization within the meaning of Section 2(5)
of the Act
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. By the aforesaid unfair labor practices committed prior to the Board election,
and by certain other conduct interfering with the election, Respondent has illegally
affected the results of the Board election held on August 10, 1961.
5. The aforesaid conduct constitutes conduct affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the cases, I recommend that Respondent, Hendrix Manufac-
turing Company, Inc., Mansfield, Louisiana, its officers, attorneys, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees in a manner constituting interference, restraint, or
coercion; instructing or soliciting employees to get other employees to vote against
the Union; threatening employees with loss of their jobs, curtailment of benefits, or
other reprisals on account of their union activities; promising employees benefits to
influence their vote in a Board election or their union sympathies or activities; or
creating an impression among the employees that their union activities are under
surveillance.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its Mansfield, Louisiana, plant, copies of the notice attached hereto
marked "Appendix." 42 Copies of said notice, to be furnished by the Regional Di-
rector for the Fifteenth Region, shall, after being duly signed by the Respondent, be
41 Blue Flash Express, Inc , 109 NLRB 591
*a In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" In the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals. the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
AIR CONTROL PRODUCTS OF ST. PETERSBURG , INC. 413
posted immediately upon receipt thereof in conspicuous places and be maintained for
a period of 60 consecutive days. Reasonable steps shall be taken to insure that said
notices are not altered , defaced, or covered by any other material.
(b) Notify the Regional Director for the Fifteenth Region , in writing , within 20
days from the receipt of this Intermediate Report what steps Respondent has taken
to comply herewith.43
It is further recommended that the Board set aside the election conducted in a
unit of Respondent 's employees on August 10, 1961 , and direct a new election at an
appropriate time pursuant to the stipulation for certification upon consent election.
It is further recommended that the complaint be dismissed insofar as it alleged
violations of the Act not specifically found herein.
43 In the event that these Recommendations be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , In writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, you are notified that:
WE WILL NOT interrogate employees in a manner constituting interference,
restraint , or coercion ; instruct or solicit employees to get other employees to
vote against Lodge 635, International Association of Machinists , AFL-CIO,
and International Brotherhood of Boilermakers , Iron Shipbuilders , Blacksmiths,
Forgers, and Helpers; threaten employees with loss of their jobs , curtailment of
benefits, or other reprisal on account of their union activities ; promise employees
benefits to influence their vote in a Board election or their union sympathies or
activities ; or create an impression among the employees that their union ac-
tivities are under surveillance.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their rights guaranteed in Section 7 of the Act.
HENDRIx MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building ( Loyola), 701 Loyola Avenue, New Orleans , Louisiana, Telephone
Number 529-2411 , if they have any question concerning this notice or compliance
with its provisions.
Air Control Products of St . Petersburg, Inc. and Teamsters,
Chauffeurs, Helpers, Local Union #79, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America. Case No. 12-CA-2336. October 24, 1962
DECISION AND ORDER
On July 16, 1962, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled case, finding that the
Respondent had engaged in and was engaging in an unfair labor
practice violative of Section 8(a) (5) and (1) of the Act and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. There-
139 NLRB No. 29.