Howard Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 220 (N.L.R.B. 1969)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Manufacturing Company, Inc. and
Southwest Regional Joint Board , Amalgamated
Clothing Workers of America, AFL-CIO. Cases
26-CA-2965 and 26-RC-2957
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On October 27, 1968, Trial Examiner Lowell
Goerlich issued his Decision in the above -entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended , and recommending that
it cease and desist therefrom and take certain
affirmative action , as set forth in the attached Trial
Examiner ' s Decision . He further found that certain
of the Union ' s objections to the election in Case
26-RC-2957 should be sustained and recommended
that a bargaining order be issued . Thereafter, the
General Counsel , the Respondent , and the Charging
Party filed exceptions to the Trial Examiner's
Decision and supporting briefs . The General
Counsel also filed an answering brief to
Respondent ' s exceptions , and the Respondent filed a
brief answering the General Counsel ' s and Charging
Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions , and the briefs,
and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner , only to the
extent consistent herewith.
Following a stipulation for consent election, a
Board-conducted election was held August 25, 1967,
in which the Petitioner , Southwest Regional Joint
Board , Amalgamated Clothing Workers of America,
AFL-CIO, failed to receive a majority of the valid
ballots cast . The Petitioner , thereafter , filed timely
objections to conduct affecting the results of the
election , and after investigation thereof by the
Acting Regional Director , he issued and served on
the parties his Report on Objections. The Regional
Director recommended that all the objections,
except 4 and 7, be overruled and that Objections 4
and 7 be sustained ; that the election be set aside and
a new one directed . Alternatively he recommended a
hearing to resolve issues raised by Objections 2, 4,
5, and 7, and the Board so duly ordered.
Pursuant to charges of 8(a)(1) and (5) violations
filed by the Union on January 3, 1968, a complaint
issued in Case 26-CA-2965 which was thereafter
consolidated with the representation proceeding
26-RC-2957. It is these cases which are now before
us.
1. The Trial Examiner found that a notice of
leave of absence policy posted by Respondent on its
bulletin board on June 28, 1967, prior to the
Board-conducted election of August 25, 1967,
violated Section 8(a)(1) of the Act. The Trial
Examiner, however, failed to note that the charge
initiating the unfair labor practice proceeding was
filed on January 3, 1968, more than 6 months after
the notice was posted. Since Section 10(b) of the
Act prohibits the issuance of a complaint based
upon unfair labor practices occurring more than 6
months before the filing and service of the charge, it
is evident that the notice of leave of absence policy
cannot be found to have violated Section 8(a)(1).
Similarly, since the subsequent restoration of
seniority rights to an employee during the 10(b)
period was inescapably grounded in the prior notice
of leave of absence policy which was posted before
the limitation period, we also find, contrary to the
Trial Examiner, that it cannot be found to constitute
a violation of Section 8(a)(1).' On the other hand,
we agree with the Trial Examiner, for the reasons
stated by him that Respondent's conduct in posting
the notice of leave of absence policy on its bulletin
board constituted objectionable conduct and affected
the results of the election.
2. In section III, subsection Fourth of the Trial
Examiner's Decision, the Trial Examiner found that
employees were deprived of their right to a free
choice of bargaining representative, and that the
rights guaranteed under Section 7 of the Act were
interfered with, by the nature of Respondent's
references to the Union in its letters and speeches.
We do not agree. In the earlier stages of the instant
objections proceeding, the Regional Director
considered the content of the campaign material
alleged to have been improper and found the
objections based thereon to be without merit. In the
absence of exceptions to the Regional Director's
dismissal of these objections, the Board sustained
the Regional Director's action. The Respondent's
campaign material was not alleged in the complaint
to be violative of Section 8(a)(1) and no evidence
supporting such violation was taken at the hearing.
Accordingly, we agree with the Respondent that to
find such campaign material at this stage of the
proceeding either objectionable or illegal would be
an abridgment of its procedural rights, and therefore
do not adopt the Trial Examiner's findings in this
regard.
3. Section III, subsection Fifth of the Trial
Examiner's Decision: Like the Trial Examiner, we
find that Supervisor Moore's questioning of
'See Durjee 's Television Cable Company , 174 NLRB No 98.
180 NLRB No. 47
HOWARD MANUFACTURING CO., INC.
employee Haislip in the cafeteria as to "why [she]
wanted a union ," in the circumstances detailed by
the Trial Examiner, constituted objectionable
conduct. However, as noted by the Trial Examiner,
there is insufficient proof that this incident occurred
after July 3, 1967, the 10(b) cutoff date, as opposed
to June 28 or 29, 1967. Accordingly, we adopt his
finding that the incident cannot be found to have
constituted a violation of Section 8( a)(1).
4. We agree with the Trial Examiner that
Supervisor Dixon 's interrogation of employee White
concerning the Union, as described in section III,
subsection Sixth of his Decision, was both violative
of Section 8(a)(l) and conduct interfering with the
results of the election. However, we do not adopt
the Trial Examiner's finding that White's request to
Hudson to "vote no for me" was a further violation
of the Act, or objectionable.
5. We do not agree with the Trial Examiner's
findings in section III, subsection Seventh,
paragraphs numbered l and 9, that President
Herzog by his statements to employees Carrigan
and Tipton, respectively, that (a) "the union can
cause trouble and was a pack of headaches" and (b)
the union took (the employees') money and couldn't
give them anything, violated Section 8(a)(1) of the
Act. On the contrary, we find that these remarks
were in the permissible area of fair comment and
did not violate Section 8(a)(1).
In agreement with the Trial Examiner, as set
forth in the remaining paragraphs of subsection
Seventh of his Decision, we find that Respondent
violated Section 8(a)(l) by the remarks detailed
therein.1
6. The Trial Examiner found that Respondent's
supervisors on June 20 and 21 engaged in
surveillance of its employees who accepted the
Union' s literature . He found further that, on August
14, 1968, Respondent engaged in handbilling near
the location being used by the Union for the same
activity, thereby deterring employees from accepting
such literature, in violation of Section 8(a)(1). The
Trial Examiner also found that this conduct affected
the results of the election.
We deem it unnecessary to pass on whether
Respondent's foregoing activities constituted
objectionable conduct, inasmuch as sufficient
findings of objectionable conduct have already been
made and additional findings would merely be
cumulative. Moreover, we do not reach the issue of
whether Respondent's conduct of August 14 violated
Section 8(a)(1), since , at the hearing , both the
General Counsel and the Charging Party disavowed
'Member Zagoria, for the reasons set forth in his dissent in Graber
Manufacturing Co. inc., 158 NLRB 244, would not find president
Herzog 's remark to Carrigan , concerning the presentation of future
grievances through the union , a violation of Sec 8 (axl); neither would he
find Herzog ' s remarks to Butler , detailed in section III, subsection
Seventh , paragraph numbered 12, to be violative of the Act Chairman
McCulloch would not find that Herzog 's question to Carrigan, set forth in
paragraph numbered 4 of sec . III, subsection Seventh , constituted unlawful
interrogation.
221
alleging this activity as unlawful. As the Trial
Examiner noted, Respondent's conduct of June 20
and 21 cannot be found to have violated Section
8(a)(1), since Section 10(b) precludes our finding
unlawful any conduct by Respondent occurring
before July 3, 1968.
7. We agree with the Trial Examiner that by June
12, 1967, the initial date of the Union's demand for
recognition, the Union had been designated for the
purposes of collective bargaining by a majority of
Respondent's employees in an appropriate unit, and
that Respondent violated Section 8(a)(5) by
thereafter refusing to bargain with it.
The record reveals that, for the payroll period
from June 9 through June 23, 1967, there were 153
eligible employees in the unit and that as of June 16
the Union was in possession of 85 validly signed
cards. In arriving at this figure we accept the Trial
Examiner's findings that employees Hutson, Tipton,
Butler, and Haislip signed their cards free of any
misrepresentation by the Union as to the card's
purpose. We also accept the Trial Examiner's
finding that employee Carrigan's card, signed by
another at her direction, was a valid designation of
the Union as bargaining representative. We accept
the Trial Examiner's finding that employee Coulter's
card was valid for determining the Union's majority
status, but we do so on the ground that the evidence
taken at the hearing was sufficient to establish its
validity without regard to the Trial Examiner's
handwriting analysis. We accept the Trial
Examiner's findings with regard to the validity of
employee Hile's card.
Respondent contends that employee Tollet's card
is invalid, because of a representation made by the
Union that the card did not obligate Tollett in any
way. We find it unnecessary to reach this issue, or
to count Tollett's card, in view of the Union's clear
majority status based on the cards of other
employees.
We agree further with the Trial Examiner that, as
of July 3, 1967, the Union had been designated as
bargaining representative by 92 valid cards from
employees in the unit. The record reveals that the
total number of eligible employees in the
appropriate unit for the June 23 through July 6
payroll period was 154. Thus the number of validly
signed cards in the Union's possession was greatly in
excess of the, number necessary to constitute a
majority. In reaching this conclusion we accept the
Trial Examiner's findings that the cards of
employees Henderson and Wesson were valid
because testimony taken at the hearing established
that the witness saw these employees sign their cards
at a union meeting on June 22.
We have found, in agreement with the Trial
Examiner, that on and after June 12, 1967, the date
of the Union's formal demand for recognition, the
Union had been designated by a majority of
employees in an appropriate unit to act as their
collective-bargaining representative. The Union filed
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a petition for an election on June 16, 1967.
Thereafter, as found by the Trial Examiner and
affirmed substantially herein , Respondent engaged
in numerous unfair labor practices , including
interrogations , threats of reprisal , and a statement
indicating that selection of the Union would be
futile . In these circumstances , we believe it unlikely
that any election conducted would be an accurate
gauge of the employees ' true desires , and find that,
on balance , employees ' desires as expressed through
the authorization cards previously signed would be
better protected by a bargaining order than by
another election.
Respondent contends that, since the Union's
formal request for recognition and Respondent's
letter of June 16, 1967, denying that request,
occurred before the 10(b) cutoff date of July 3,
1967, any 8(a)(5) finding is barred by the limitation
of Section 10(b). We do not agree . As we have
found, the Union retained its majority through July
3, 1967, the beginning of the 10(b) period. Though
the Union ' s initial request for recognition came on a
date prior to this, on June 16, 1967, the Union filed
a representation petition shortly thereafter indicating
its continuing interest in representing the
Respondent's employees. We construe the Union's
demand of June 16 to have been a continuing one;
in the light of Respondent 's peremptory refusal to
bargain on June 16, and its subsequent unfair labor
practices, any further demand by the Union for
recognition would have been futile.
Moreover, under the Supreme Court's decision in
the Gissel Packing Co. case,' it is the Employer's
contemporaneous and subsequent conduct which
determines whether its earlier refusal to bargain was
unlawful . Since it is these unfair labor practices
which serve as the basis for an 8 (a)(5) finding under
Gissel, we can hardly say that the 10(b) period
started running before the unfair labor practices
were committed ; i.e., before the unlawful refusal to
bargain was established. As the Court of Appeals
for the District of Columbia Circuit has indicated in
a similar case , Respondent ' s active and unlawful
antiunion campaign within the 10(b) period
constituted a "continuing offense," a repetition of
its earlier refusal to bargain .' Hence , we find the
Respondent violated Section 8(a)(5) of the Act by
refusing to bargain with the Union on and after July
3, 1967, and that such a finding is not barred by
Section 10(b) of the Act. We shall issue a
bargaining order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Howard Manufacturing Company, Inc., Nashville,
Arkansas , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
with Southwest Regional Joint Board , Amalgamated
Clothing Workers of America , AFL-CIO, the
exclusive representative of the employees in the
appropriate unit as set forth below.
(b) Coercively interrogating employees about the
Union in a manner constituting interference,
restraint , and coercion within the meaning of
Section 8(a)(1) of the Act.
(c) Threatening employees , expressly or implicitly,
that they may suffer reprisals for having engaged in
union activities.
(d) Indicating that selection of a bargaining
representative will be futile.
(e) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization , to form labor
organizations, to join or assist Southwest Regional
Joint Board, Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing , to engage in
other concerted activities for the purpose of mutual
aid or protection as guaranteed in Section 7 of the
Act, and to refrain from any and all such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request , bargain with Southwest
Regional Joint Board , Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive
bargaining representative of all its employees in the
appropriate unit , with respect to rates of pay, wages,
hours of employment , and other terms and
conditions of employment , and, if an understanding
is reached , embody such understanding in a signed
agreement . The appropriate unit is:
All employees employed by Howard
Manufacturing Company, Inc., including all
production and maintenance employees , excluding
all office clerical employees , guards and supervisors
as defined in the Act.
(b) Post at its Nashville, Arkansas , plant, copies
of the attached notice marked "Appendix."[' ]
Copies of said notice , on forms provided by the
Regional Director for Region 26, after being signed
by an authorized representative of Respondent, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by
Respondent to insure that said Notices are not
'N.L.R.B. v. GLrsei Packing Co., 395 U.S. 575.
See UA.W v. N.L.R B. (Aero Corp.), 363 F.2d 702 (C.A.DC.), cert.
denied 385 U.S. 973.
'We find no warrant for the 90-day proof-of-majority requirement
imposed by the Trial Examiner and do not adopt it.
[6!n the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "1
HOWARD MANUFACTURING CO., INC.
altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing,
within 10 days from the date of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the election held on
August 25, 1967, be vacated and set aside and that
the petition in Case 26-RC-2957 be dismissed.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT coercively interrogate employees about
the union in a manner constituting interference,
restraint, coercion within the meaning of Section 8(a)(l)
of the Act.
WE WILL NOT threaten employees, expressly or
impliedly, that they may suffer reprisals for having
engaged in union activities.
WE WILL NOT indicate that selection of a bargaining
representative will be futile.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization , to form labor
organizations , to join or assist Southwest Regional
Joint Board, Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their
own choosing , or to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such
activities.
WE WILL, upon request, bargain collectively with
Southwest Regional Joint Board, Amalgamated
Clothing Workers of America, AFL-CIO, as the
exclusive bargaining representative of all our employees
in the bargaining unit described below with respect to
rates of pay, hours of employment, and, if an
understanding is reached, embody such understanding
in a signed agreement . The appropriate unit is:
All employees employed by Howard Manufacturing
Company, Inc., including all production and
maintenance employees, excluding all office clerical
employees, guards and supervisors as defined in the
Act.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of
Southwest Regional Joint Board, Amalgamated Clothing
Workers of America, AFL-CIO, or any other union,
except to the extent that this right may be affected by the
provisions of the National Labor Relations Act.
HOWARD
MANUFACTURING
COMPANY, INC.
(Employer)
223
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 534-3161, if they have any
questions concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner Pursuant to a
petition duly filed by the Petitioner, Southwest Regional
Joint Board, Amalgamated Clothing Workers of America,
AFL-CIO, herein referred to as the Union, on June 16,
1967, and a Stipulation for Certification upon Consent
Election executed by the Union and Howard
Manufacturing Company, Inc., the employer and
Respondent herein, and approved by the Regional
Director, Region 26, on July 12, 1967, an election by
secret ballot was conducted under the direction and
supervision of the Regional Director on August 25, 1967,
among certain employees' of the employer. Fifty-seven
votes were cast for the Petitioner, 75 votes were cast
against the Petitioner, 1 vote was void, and 7 were
challenged.
On September 1, 1967, the Petitioner filed timely
objections to conduct affecting the results of the election,
a copy of which was duly served upon the employer. The
Acting Regional Director caused an investigation of the
objections to be made and thereafter, on October 13,
1967, issued and served on the parties his report on
objections. In his report the Acting Regional Director
recommended to the Board that Objections 1, 3, 6, 8, 9,
10, and 11 be overruled, that Objections 4 and 7 be
sustained, and that the election be set aside and a second
election be directed. He further recommended that in the
event that these recommendations were not adopted, a
hearing be held to resolve issues raised by Objections 2
and 5.
On October 24, 1967, the employer filed timely
exceptions to the Acting Regional Director's report and
brief in support of exceptions. The Board duly considered
the matter and was of the opinion that the issues raised
with respect to Petitioner's Objections 2, 4, 5, and 7 could
best be resolved by a hearing. Accordingly, the Board
ordered that a hearing be held and the matter was referred
to the Regional Director for the purpose of conducting
such hearing and for the issuance of notice thereof.
On August 5, 1968, the Acting Director issued an order
consolidating cases, complaint, and notice of hearing.
Among other things the Acting Regional Director
ordered, pursuant to Section 102.33 of the Board's Rules
and Regulations, Series 8, as amended, that Case
26-CA-2965 be consolidated with Case 26-RC-2957 for
the purpose of hearing, ruling, and decision by the Trial
Examiner on issues raised by Petitioner's Objections 2, 4,
Dated By
'Included- All production and maintenance employees . Excluded- All
(Representative) (Title) office clerical employees, guards, and supervisors as defined in the Act
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5, and 7 in accordance with the Board's order directing
hearing dated December 14, 1967, and that thereafter
Case 26-RC-2957 be transferred and continued before the
Board in Washington, D.C., and that the provisions of
Sections 102.46 and 102.69 of the above-mentioned Rules
govern the filing of exceptions. The complaint issued in
Case 26-CA-2965 was pursuant to charge filed by the
Union on January 3, 1968, and served on the Respondent
by registered mail on or about January 3, 1968. It was
alleged in the complaint that the Respondent had engaged
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended, herein
called the Act. The Respondent filed timely answer
denying that it had engaged in or was engaging in the
unfair labor practices alleged.
The cases came on to be heard on September 17, 18,
19, and 20 at DeQueen, Arkansas, and on September 24,
at Little Rock, Arkansas. Each party was afforded a full
opportunity to be heard, to call, examine and
cross-examine witnesses, to argue orally on the record, to
propose findings of fact and conclusions of law, and to file
briefs. All briefs have been reviewed and considered by the
Trial Examiner.'
The General Counsel contends that the Respondent has
violated Section 8(a)(1) and (5) of the Act, by failing to
recognize the Union as a collective bargaining
representative of its production and maintenance
employees in that after the Union demanded recognition
and offered to prove its majority status, the Respondent
demonstrated its lack of good-faith doubt of the Union's
majority status by engaging in certain unfair labor
practices in violation of Section 8(a) (1) of the Act. The
alleged violations of Section 8(a)(1) of the Act involved
warnings of the futility of selecting the Union as
employees' bargaining representative, unlawful
interrogation of employees threats of plant closure, the
creation of the impression of surveillance, the threat of job
loss, and the institution of a new policy with regard to
employees' leaves of absence, all of which the General
Counsel claimed interfered with rights guaranteed
employees under Section 7 of the Act.
The Union's objections to the conduct affecting the
results of the election which are before the Trial Examiner
for consideration are:
* * * * *
2. Agents of the Employer interrogated employees
about their union sympathies and activities.
* * * * *
4. Agents of the Employer engaged in surveillance of
worker's who talked to Union organizers while said
organizers were handing out leaflets in front of the
plant.
5. Agents of the Employer told workers, during
working hours, that the Union would not allow job
transfers within the plant and that the Employer could
not operate its factory without said job transfers, and
that because of such Union limitation it would have to
move the plant operation to another location; that the
colored girls would be responsible for whatever
happens; and that the Union would not allow job
'The Respondent and General Counsel filed carefully prepared and
helpful briefs with the Trial Examiner . The Union faded to submit a brief
to the Trial Examiner.
transfers , in order that they might collect additional
dues.
* * *
7. Agents of the Employer, subsequent to the filing
of the Union's representation petition and contrary to
the practice previous, began to allow vacation and
holiday benefits to those employees who had been away
from work because of pregnancy, when otherwise
qualified for said benefits.
Upon the whole record' and upon his observation of
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is now and has been at all times material
herein an Arkansas Corporation with an office and place
of business located in Nashville, Arkansas, where it is
engaged in the manufacturing of men's and boy's robes
under the brand name Roytex. During the past 12 months
Respondent in the course and conduct of its business
operation sold and shipped from its Nashville, Arkansas,
plant products valued in excess of $50,000, directly to
points located outside the State of Arkansas.
The Trial Examiner finds, as is admitted by the
Respondent, that at all times material herein Respondent
is and has been an employer as defined in Section 2(2) of
the Act engaged in commerce and operations affecting
commerce as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Southwest Regional Joint Board , Amalgamated
Clothing Workers of America, AFL-CIO, is now and has
been at all times material herein a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
First: The Union first handbilled the Respondent's
Nashville, Arkansas, plant on March 31, 1967; thereafter
the union organizers returned on April 13, 1967, and
continued the Union's organizational campaign until the
time of the election. By June 12, 1967, the Union had
obtained 86 seemingly valid authorization cards from the
Respondent's employees, at which time it transmitted to
the Respondent a demand for recognition. Part of such
demand read: "We stand prepared, at any reasonable
time, to submit our signed membership cards for a check
against a current Company payroll, by an impartial
person, or persons, of public standing in the Nashville,
Arkansas community, which person or persons would
thereupon furnish both the union and your firm with
sworn affidavits concerning the findings of said card
check."
The letter was received by the employer on June 14,
1967. On June 16, 1967, the Union filed its petition for an
election. On the same day, but without knowledge of the
'The General Counsel moved to correct the transcript in the following
particulars: p 259 , "Mary Ann Gray" be corrected to read "Mary Ann
Ray"; and pp 258-260, the name of Avalee Tribble , one of the seven
employees challenged during the election , to be included in the stipulation
of the parties as properly excluded from the unit There being no
opposition thereto , the motion is granted and the transcript is corrected
accordingly.
HOWARD MANUFACTURING CO., INC.
Union's petition, the Employer replied to the Union's
demand letter, which was received by the Union on July
19, 1967. In its reply letter, the employer refused to
recognize the Union because, as stated by the Employer,
"we doubt, in good faith, that you represent a majority of
our employees in any appropriate unit."' The letter also
included the paragraph: "As for your offer of a card
check, it should be pointed out that a card check would
not show the circumstances under which employees
allegedly signed the cards; It would not show what
inducements were made to the employees. It would not
show what representations, misrepresentations or threats
had been made to them. Therefore, we must also decline
your offer of a card check since we do not believe it would
provide a proper means of proving whether your
organization represents a valid, uncoerced majority of the
employees involved. The election processes of the National
Labor Relations Board are available." The letter was
signed by President Albert W. Herzog. Herzog testified
that he personally drafted the reply based upon his
"experience" in "other elections."' In respect to the
good-faith doubt referred to in the employer's reply letter,
Herzog at the hearing attributed it both to his prior
experience and his lack of observation of any union
activity "as far as a campaign to sign up the employees"
was concerned.' He testified that he received the same
reaction in regard to union activity from manager Charles
W. Hornbuckle.
Between July l and 9, 1967, the plant was closed for
vacation. A day or two before the plant was closed, the
Respondent's supervisors were called together by Herzog
and Hornbuckle and were told that there was a union
campaign going on in the plant. The supervisors were
directed to advise their employees that there probably
would be an election and that they would give them more
information on that subject when it was available.
Supervisors were further told, according to Herzog to tell
the "employees that they had rights to go for a union or
to be against the union . They had a right to go to a union
meeting or not to go to a union meeting . They had a right
to talk to union organizers in their homes, and if they
didn't want to, they didn't have to, and most important of
all, that if they had any questions at all about the union
campaign , or about the union issues , [the Employer]
would try to get the answers for them, and that they
should just let their supervisors know, or let Mr.
Hornbuckle or [Herzog] know, and [they] would try to
answer their questions as best [they] could."
Second: On June 28, 1967, shortly before the vacation
period commenced, the Employer posted a notice on the
bulletin board in which it was stated that there seemed to
be some confusion and misunderstanding about the
Company' s leave-of-absence policy. The notice made
known among other things that "[ a]nyone can request a
30-day LEAVE OF ABSENCE (LOA) for a good reason
such as pregnancy , sickness , an operation , etc.[;] [t]his
LOA can be extended for two more 30-day periods or up
to a total of ninety days. [;] .... [i]f you follow the above
'No grounds for good-faith doubt were mentioned in the letter.
'Herzog was a "principal" in the Meridian Manufacturing Company in
Meridian , Mississippi , and was associated with another plant near
Meridian . He testified that he, at these and other locations , had received
similar demand letters from the same union and that " in those cases a
majority was never shown , and the employees rejected the union as their
bargaining agent...."
'Herzog testified that the only indication he had that the Union was
present at the plant was that "previously the union had handbilled in front
of the plant."
225
procedure and return to work . . . you will not loose any
LENGTH OF SERVICE or the benefits that go with
your LENGTH OF SERVICE."
After the notice was posted, Herzog directed
Hornbuckle to "go over each [employee's] case
individually" and determine whether the employee "should
have her length of service reinstated . . . for future
benefits ... "
During the election campaign period, Manager
Hornbuckle awarded accumulated seniority not previously
granted to Bonnie Haislip who had been absent from
work due to two pregnancies. She had been previously
returned to work as a new hire.
The General Counsel maintains that the announcement
of the leave policy on June 28, 1967, and the retroactive
restoration of seniority interfered with the election and
violated Section 8(a)(1) of the Act. The Respondent
counters that the leave policy as announced and
implemented during the critical election period was merely
the embodiment of the current leave policy. There are
several factors which persuasively convince the Trial
Examiner that the Respondent's claim is without merit.
There is no credible evidence that any of the employees or
supervisors knew of the policy or that a manager had ever
applied it, Dell Stone, the employee whose responsibility it
was to record the leave granted employees in the
Employer's personnel records, although she had
commenced working for the Employer in January 1966,
had never heard of the policy; the policy had never been
posted; the publication of the policy stemmed from an
employee's question as to whether she would be eligible
for vacation benefits' asked during the critical election
period (the employee had not been granted accumulated
seniority when she returned to work after pregnancy); and
the policy was given only prospective application.'
Moreover, Herzog's testimony reveals that if there was a
leave of absence policy in existence prior to June 28, 1967,
it was not fixed, but was based "to some extent on
practicality and common sense" and "at the discretion of
the plant manager." Under the posted policy the employee
had a right to accumulate seniority if he or she came
within the policy. Prior to June 28, 1967, whether
employees received the benefits described under the posted
policy was a matter of happenstance.'
The Trial Examiner concurs in the following remarks of
the Acting Regional Director appearing in his report on
objections; "It is further found that the Employer's leave
of absence policy, while it may have been an established
Company policy, was one not known to or received by the
employees of the Nashville plant. The Employer's records
show only two employees over a period of 6 years utilized
or were granted this benefit. Under these circumstances,
even if considered a correction to conform to Company
'Eligibility for vacation benefits was based upon length of accumulated
service.
'The fact that the Employer did not retrospectively grant benefits which
would have accrued to employees prior to June 28, 1967, based upon their
restored seniority , indicates that the employees were not considered to be
entitled to such benefits as a matter of right as was the case after June 28,
1967.
'Herzog's assigned reason for posting the notice , i e , "so that everybody
would understand it, including the supervisors " and the language of the
notice, i.e., "[t]here seems to be some confusion and misunderstanding"
contributes to the conclusion that there was no announced fixed policy on
leave of absence . Dell Stone testified that all she knew about leave of
absence was that the manager told her orally that someone was on leave of
absence and she made the notation . Stone knew of no policy nor had she
made any personnel entries which allowed accumulated seniority for
periods of pregnancy.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy, the Employer's announcement of this previously
unknown and unavailable to policy, shortly after the
initial Union campaign, was subsequent granting of
retroactive seniority and other benefits to employees as
tantamount to the establishment of a new benefit
program. Furthermore, no urgent need for the timing of
the announcement of the correction has been shown. As
the majority of the employees are female, such a benefit is
found to be substantial and merit is found to this portion
of the objection." The Trial Examiner finds that the
granting of such benefits not only constituted an
interference with the election but also was in violation of
Section 8(a)(l) of the Act. See N L R.B. v. Exchange
Parts Company, 375 U.S 405 The language of the Board
in Fashion Fair, Inc, Cinbo, Inc , and Lois Price of Ohio,
Inc., 157 NLRB 1645, is apposite: "To give employees
sick pay as a matter of right, where theretofore it had
been a matter of grace, was clearly to confer a benefit
upon them."
Pertinent also is the language from N L R.B. v.
Newman-Green, Inc, 401 F.2d I (C.A. 7)•
When the employer chose to announce the insurance
program at the time and under the circumstances here
[during an election campaign], it took the risk that its
conduct could justify the inference the Board drew, that
the preparation of the insurance plan and its
promulgation was timed to induce, or did induce, votes
against the Union.
Third: Upon return from vacation the employer
commenced a well-planned, intensive antiunion campaign.
President Herzog was its spearhead. The supervisors and
Manager Hornbuckle contacted the employees individually
as many as four separate times during the campaign.
Herzog, himself, talked individually with 70 or 75
employees on company time away from their normal work
stations; with some he conversed for almost an hour
Herzog, himself, wrote letters to the employees urging
them to vote against the Union and spoke in the same
vein to employees in three captive audiences on August
16, 21, and 24, 1967. Not only did Plant Manager
Hornbuckle pass out handbills alongside the Union
handbillers but he addressed the employees in a captive
audience on August 23, 1967. E.D. Cramer, the
Respondent's secretary and treasurer from New York,
appeared before the employees on August 24, 1967, to tell
them "why the company doesn't want a union." On the
same date, Herzog addressed employees on "what is in
store - for us - here at Howard." The Respondent even
brought its attorney to address a captive audience on
August 23, 1967, in order to set the employees straight as
to those questions which lay in the legal field.
In response to the Employer's solicitations, many
questions were submitted by the employees which were
answered either personally by Hornbuckle, Herzog, or the
supervisors or by handbill, in captive audiences, or by
letter.'
Viewing the Respondent ' s intensive antiunion campaign
as a whole and in the light of the credible record, the
Trial Examiner is of the opinion that the Respondent, in
its zeal to dissipate the strength of the Union and thwart
"In respect to the employees' questions, the General Counsel has
included a statement in his brief with which the Trial Examiner is wholly
in accord:
The Respondent's efforts to solicit questions from employees was only
a ploy devised by the Respondent to gain lawfully what it could not gain
otherwise; a forum on which to propagandize unsophisticated employees
under the guise of only answering questions propounded to them
union growth, overstepped the bounds of legitimate
campaigning and created an atmosphere of fear
incompatible with its employees' freedom of choice for a
bargaining agent and, by its activities hereinafter detailed,
interfered with, restrained , and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act and
thereby violated Section 8(a)(1) of the Act.
Fourth: It is apparent from Herzog's testimony,
speeches, and written communications that he was no tyro
in this business , but was experienced and well advised In
comparison, the employees whom he confronted were as
"babes in the woods."" Moreover, as president of the
Respondent and a high emissary from the main office, he
spoke as one with authority and the weight of his
displeasure and his admonitions to employees, especially
the black members of the union organizing committee,
were not things to be taken lightly. There seems little
doubt that his status commanded attention and his
remarks, careful concern. Thus, as to the employees he
addressed, his words partook of actuality rather than
vaticination.'= Herzog left no doubt that his thoughts on
the subject would be translated into action.
The Trial Examiner is well aware that an employer
does not commit an unfair labor practice if he expresses
or disseminates "views, argument or opinion" whether in
written , graphic, or visual form, if such expressions or
disseminations contain "no threat of reprisal or force or
promise of benefit." (See Section 8(c) of the Act.)" An
employer may engage in noncoercive antiunion
solicitation , a right which "is protected by the so-called
'employer free speech' provision of Section 8(c) of the
Act." N.L R B. v. United Steelworkers of America, CIO
[Nutone, Inc.J, 357 U.S. 357, 362. However, the
Legislative History of Section 8(c) does not suggest that
by the enactment of Section 8(c) it was intended that the
realities of the industrial world be ignored, or that there
be overlooked the salient fact that there is a distinct
difference between the reaction of an employee to the
statement of his employer, upon whom he depends for his
daily bread, and that of the armchair strategist who
sometimes applies connotations to the employer's
language . As was said by Judge Frank, "Tough language
barriers often exist between the man in the library or the
judge and the man on the street...." Larson v. Jo Ann
Cab Corp., 209 F.2d 929, 933 (C.A. 2). "What to an
outsider will be no more than the vigorous presentation of
a conviction , to an employee may be the manifestation of
a determination which it is not safe to thwart." N.L.R B.
v. Federbush Co., Inc., 121 F.2d 954, 957 (C.A. 2).
"The Trial Examiner observed that while Respondent's employees were
testifying they appeared little equipped to grasp the nice distinctions which
are sometimes drawn between coercive and noncoercive communications
"As was stated in N L R.B v W C Nabors Co , 196 F 2d 272, 276
(C.A. 5)
When statements such as these are made by one who is a part of the
Company management , and who has the power to change prophecies
into realities, such statements, whether couched in language of
probability or certainty , tend to impede and coerce employees in their
right of self-organization , and therefore constitute unfair labor practices.
"[W]ords must be judged by their likely import to [an employer's]
employees ." Wausau Steel Corporation v N L R B.. 377 F.2d 369, 372
(C.A 7). See also N.L R.B. v. Trojan Powder Co., 135 F 2d 337, 339
(C.A 3), where effect was given to the employer 's statement as it was
"capable of being understood [by the employees] . even though the
words are chosen with a fine sense of Victorian delicacy "
"" .. it may be said that the language of Section 8(c) of the National
Labor Relations Act, as amended by the Labor Management Act of 1947,
29 U.S.C.A. Sec 141 et seq , 61 Stat 136, is no more than the
restatement of the principle embodied in the First Amendment," N L R B
HOWARD MANUFACTURING CO., INC.
The Respondent commenced its antiunion campaign by
directing its supervisors to personally converse with
employees under their supervision on union topics and to
solicit questions. On June 28, 1967, the Respondent
published the leave policy above noted as an inducement
for weaning employees from union affection. On August
14, 1967, by letter, the Respondent advised the employees,
"[s]o that there will be no misunderstanding," that the
Respondent did "NOT WANT THIS UNION IN
HOWARD." In this letter Herzog set the tone for the
remainder of the campaign. He declared that the advent
of the Union was a "union attempt to destroy" the
Company and turn "this work place into a battleground"
which the Respondent would "defend to the end, with
every legal means at [its] disposal."" He warned, that the
"union could mean plenty of trouble" in that it was his
belief that "this union is mad at us and has been trying to
get even since 1956."I l He further warned, "For your sake
we strongly recommend you do not vote for this union .. .
He added that the "union organizers have nothing to
lose," but the employees "have everything to lose."
Then came Herzog's kickoff speech of August 16, 1967,
wherein he called the Union's representatives, among
other things, a bunch of "fast-talking sharpies" liars,
stingers, and cheaters peddling a "worthless product."16
To which he added, " Regardless of how they try to sell
you - we feel that they can't be of any help to you or to
us." He commented further: "Unions are easy to get into
and once they get their hands on your dues money they
just don't want to let go . . . The more business they
scrape up - the more dues they collect . . . . They're
going to try and stir up trouble so that they can peddle it .
. . . Between now and the election, they're going to try
everything in the book - and probably somethings not in
the book . Don't be surprised at any of their tall
stories or slick tricks --- they have to do that - its's their
v Bailey Co., 180 F.2d 278, 280 (C.A. 6), or , as expressed by the Supreme
Court, "The remedial function of Sec. 8(c) is to protect noncoercive speech
by employer and labor organization alike in furtherance of a lawful object.
It serves that purpose adequately without extending its protection to speech
. in furtherance of unfair labor practices . " International
Brotherhood of Electrical Workers, Local 501 , et of v. N L R B., 341 U S
694, 704.
'4Herzog wrote - ". . we will defend to the end , with every legal means
at our disposal , this union attempt to destroy us by turning this work place
into a battleground , like they tried before."
"Cramer, in his August 22 speech , made reference to an unsuccessful
violent strike conducted by the Union in 1956 at the Jersey City Plant
which strike , according to Cramer , was over "whether we would hand our
Meridian employees over on a silver platter to the Union ...." Employees
were told that the Meridian plant was opened in October 1955 to meet
nonunion competition and manufacture a popular priced robe line The
Union protested and a strike ensued which Cramer blamed upon
"irresponsible leadership ." Operations were discontinued in Jersey City,
but were continued in Meridian.
Thereafter , the Respondent opened its plant in Nashville , Arkansas.
Herzog told the employees in his August 24 speech in regard to this event,
"We came here because - here were to be found willing - industrious -
fair minded - honest - church going people " He added , "We came here
because we were hopeful we could find - and we think we did find -
people who would not fall for the bunk and false claims of the union
crowd ." The message here seems plain enough . In that the Respondent left
Jersey City because of union trouble of a kind which was in the offing at
Nashville and in that it choose Nashville because it did not think the
people here would fall for union "bunk," it seems needless to say that the
Respondent , if its employees fell for the union "bunk ," would seek a
community elsewhere where employees would not be thus persuaded
Cramer also echoed the thought expressed by Herzog above : "Should
the ACW strike us to get even for all the past , then I must be honest with
you. Roytex intends to continue in business, in spite of what ACW may
intend to do about it."
227
stock in trade."
On the same day (August 16, 1967), Herzog wrote the
employees that the Respondent didn't want the union
because it could mean plenty of trouble "for all of us."
He reminded employees that there was no law in the land
which forced the Company to agree to the Union's
demand" and that if the Company says "No" to all
demands which it does not believe are in its best interests
or those of its employees, all the union can do is "pull"
the employees "out on long and costly strikes." Herzog
added, ". . . this company does not intend to be bulldozed
under pressure of a union or an irresponsible strike."
Moreover, he pointed out to the employees that "when
they vote for a union they will [not] automatically get
higher pay and other benefits," because the employees'
"wages and benefits will be frozen while negotiations go
on between the parties."
Herzog closed his letter by promising that the
employees could "count on without having to pay any
union dues" that "[i]f things continue here without any
outside union disruptions or troubles," the Company
"intends to do everything in its power" to "continue to
progress in the future as [it has] in the past with steady
work and steady pay."
In Herzog's letter of August 21, 1967, Herzog asked
the rhetorical question: "What is it going to be for you
and your family STEADY WORK OR UNION
TROUBLE."
Herzog explained that getting mixed up with the Union
"could be the shortest and quickest route to destroying
your security and steady work." He noted that if the
Company does not agree with what the Union asks, the
Union has only two choices.
1. The Union can take what the Company is willing to
give (and if they do, what do you need them for) or
2. They can take the employees out on strike.
Again Herzog emphasized that the employees could
count on "progress as the Company progresses .
without running the risk of union trouble - without
having to pay union dues." He appealed, "Let's work
together to solve our problems - without running the risk
of strikes and lost jobs. Be sure and vote - and vote
'NO' to be sure."
"Herzog charged.
The kind of double talk [you are] hearing from the union is the kind
of talk I hear from some of the fast -talking sharpies you sometimes
meet in business They have a worthless product or service but they use
high pressure talk - and promise you anything and everything - and
try to tell you how they can do it - and the first time they have to do
something - they can't
Then they start crying it is not their fault - that they would have
done it - except the other fellow said "No": So watch the sharpies with
their double talk out of both sides of their mouth . That's the way we've
sometimes gotten stung - that's the way you 'll be stung
They're too slippery to be caught in a big lie, but they lie about a lot
of little things - slips of the tongue that let the cat out of the bag -
and if you 're keeping up to date on what's going on , you already know
about how many lies they've slipped in this campaign to organize you -
and the closer the election - the more desperate they'll become, and the
more the union realizes they are losing ground, the wilder their charges
and promises will become. [Emphasis supplied.]
"In his August 21 speech Herzog said, "There is no law which requires a
company to sign any contract just because the union proposes it."
Hornbuckle in his speech to the employees on August 22 told them, "Mr
Herzog told you the facts yesterday that there is no law that says the
company must agree to any thing we are unable or unwilling to do"
Continued emphasis on this point strongly suggests that the Respondent
did not intend to agree on anything with the Union and that strike would
surely result from choosing the Union as bargaining agent.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the same date (August 21, 1967) Herzog again
addressed the employees in a captive audience In this
speech he continued his harsh depiction of the Union. He
declared: "The security they're interested in is a secure
part of your wages and benefits from your dues, fines,
assessments . . . once you take them onto your backs, the
liklihood is that you'll never get rid of them. . . . unions
want trouble because without trouble there soon wouldn't
be any unions . the only `security' these organizers
mean is security for themselves. . . . There is nothing they
can do other than drain off some of your earnings for the
privilege of letting them control and regulate your lives."
Herzog proponed the question- "They promise benefits
and security - what can they deliver without trouble,
strikes and picket lines." His answer to this question
stresses the utter futility for an employee to choose the
Union as his bargaining agent Herzog explained:
If the organizers are honest - they will tell you that
every contract they sign without a strike is settled on
the basis of what the company offered. So why have
a union when the truth of the matter is that the union
cannot get you a single thing that you cannot get for
yourself without the payment of union dues
* * * * *
This company did not stampede into yielding to this
same union under the pressure of an irresponsible
strike, You cannot assume that this same kind of
situation will not happen again.
Remember ! ! Only where there are unions, are there
strikes. I never heard of a strike in a plant where there
was no union.
And the best way to guard against strikes is to vote
"No" on Friday
. as we see it and the fact is our relations with
this union will be bad if the union is serious about what
they talk about.
* * * * *
... we feel that unions destroy friendly relations and
set us all against each other as enemies instead of
friends.
* * *
You won't be able to talk to us except through the
union , and we won't be able to talk to you except
through the union . But make no mistake about this
the company owns this plant and not the union - the
company is running this plant . . . not the union.
I have been led to believe by certain people in here
when I spoke to them - that if the union gets in
here, they're going to darn well let us know who's boss
and they're darn well going to tell us what to do and
tell all the people in here what to do - they think -
Well I think I have made it pretty clear who is
going to run things union or not. Whether they try
to tell you what to do is up to you and how you vote.
That's why we say "Vote so you can decide things for
yourself. Vote No!"
* * * * *
There is nothing they can do other than drain off some
of your earnings for the priviledge of letting them
control and regulate your lives.
* * * * *
I see no reason why any of these people can't
change their feelings back to the company. We hope
they will and we shall continue to have their interests
and welfare at heart. There is no such thing as it's too
late to change or I'm in it too deep to change now. You
have a right to change your mind right up to the
minute you make your X in the square of your choice.
[Emphasis supplied.]
* * * *
We don't want a union ...
* * * * *
Your company dealt with this same union in New
Jersey and our ability to take care of ourselves on
matters of this kind is an historical fact.18
When it came time for a strike because of union
demands - we took the strike - and when it came
time to say "No" we said "No."
* * * * *
We never had to say "No" in Meridian - Because the
people in Meridian said "No" to the union ... .
* * * * *
On Thursday we'll be together again and discuss
what happened in Jersey City and why we don't want a
union.
On August 22, 1967, Manager Hornbuckle appeared
before the employees, assembled in captive audience. He
opened his remarks: "I am probably not as good a talker
as the professional union organizers who have been trying
to talk you into letting them dip their fingers in your
pocket books and latch on to some of your money ... "
Hornbuckle castigated the Union by charging the
Union with trying to make trouble between the Company
and its employees and "trying to breed suspicion and
poison the whole atmosphere in the plant." He said the
union organizers were dishonest and not to be trusted;
they are "here today and if they can't latch onto some of
your money they are gone tomorrow." He represented
that the employees were "all important" to the Company
and that it did not want them to get " `bilked' by any
paid union agent from Kansas City, St. Louis or any
other place who is interested in keeping his snap job,
smoking cigars coming in regularly collecting dues from
you."
Hornbuckle suggested that he knew the Union from
when he was manager in Tennessee and that he would not
go "into all the details of how one sewing plant 20 miles
north of [him] and another one 16 miles northeast of
where [he] worked closed because [he was] not here to try
and scare [the employees] or threaten [them]."
Contributing to Herzog's theme that the employees did
not need a Union, Hornbuckle spoke:
"Cramer in his speech told the employees in respect to the New Jersey
strike , " as far as I know they are still officially on strike because we
never settled anything with them for there was nothing to settle there
was no plant - there were no jobs in Jersey City "
HOWARD MANUFACTURING CO., INC.
If you have not taken the opportunity to express
yourself on any of the things that are troublesome or
annoying to you then I'm sure I want to say to you it is
not necessary to seek outsiders to bring your problems
to management.
If there are still other improvements or adjustments
in working conditions that you think should be given or
made - you as an individual or any group of your
co-workers are free to discuss such changes with me
and be assured they will be given consideration and
attention by me.
Frankly I hope that you do not vote for the union. I
do not believe a union in this plant would be beneficial
to you or the business.
It is my honest and sincere belief that your best
interest and the best interest of the company is in our
continued personal relationship without oursiders
sticking their noses in.
Hornbuckle continued his appeal:
So I feel
We ought to work as we have always worked directly
with each other.
It's my job to see that you get a fair shake.
It's my job to see that you progress.
It's my job to see that you get good working
conditions.
And if your vote says that I haven't been doing my
job then I won't have any job.
But I'm not worried about that because I know I can
do a job - for you --- for the company - and for
myself. If I had the chance.
Frankly the one thing I'm sorry about all through
this thing is that I feel I never really have had the
chance to do my job.
I got some telegrams with some names on them
saying these people were on the organizing committee
for the union.
These people had a perfect right to do this but in the
spirit of good [sportsmanship] and fair play and in the
meaning of the good book lesson of "Do unto others as
you would have them do unto you".
I felt that if there were problems that these people
had strong feelings about that they would have seen fit
to have come to me first -- to give me a chance to
work them [out] instead of going to outsiders.
I always come to you when I have some problems
that involve you and give you a chance not just one or
two but most times more.
In my case that did not happen.
I believe that you do not hold me responsible for
what went on before I came here that might have
caused any of this because that was yesterday.
What you and I are interested in is today and
tomorrow.
In any case I feel I didn' t get a chance.
Maybe it was an oversight.
Maybe the people didn't know that their names were
going to be used in this way maybe somebody was
promised something to discourage these people from
coming to see me first.
Because if any of you are voting for a union because
of something we could work out together or if you are
voting for a union because of something you haven't
talked to me about then there is no need for all this
because thank goodness it still isn 't too late. [Emphasis
supplied.]
If this was an oversight on fairplay then why not give
Hornbuckle a chance to work out what ever problems
we have.
* * *
229
And if they did take the time even now I feel sure
that most of them would find it in their hearts to do
unto others as they would have others do unto them
and vote "NO" along with the [people] who already
don't want the union because they believe we [should]
be given a chance to work out our problems with[out]
outsiders putting their 2 cents worth in.
In Herzog's letter of August 23, 1967, he again
reminded employees that:
Tomorrow is your day of decision! If you vote "Yes"
- then you will get the union. If you vote "No" -
then you will continue to progress as the company
progresses - without paying money for things you can
get by yourself without a union.
* * * * *
We do not think that joining a union can justify the
cost to you. We do not believe you need a third person
who charges you dues and fees to assure you of fairness
in treatment - in job security - in wages - in
benefits from us at Howard.
We sincerely hope you agree and vote "No."
Be sure to vote. Vote "No" to be sure.
Secretary-Treasurer Cramer next addressed the
employees on August 24, 1967. He likewise spoke of the
Union in derogatory terms. On this subject he orated-
Unions destroy friendly relations and set us all
against each other as enemies, instead of friends.
Unions don't want us friendly to employees.
Unions don't want employees friendly to
management.
Unions want trouble because without trouble
there soon wouldn't be any unions.
Every statement and every action of this union is
designed to whip up distrust in you, the employee, and
undermine your feelings towards the company.
* * * *
We are convinced that the real interest the union has
in our employees is their dues-paying ability.
Cramer also stressed the lack of need for a union:
... We believe that if [the employees] join a union
they will be paying dues and assessments for things they
can get for themselves.
We do not want a union at Howard because we
sincerely believe that our people will not benefit by
belonging to a union.
* * * * *
We have no plans to change our method of operation
under normal circumstances either here or at Meridian.
However, we also do not intend to loose production for
a single day because of any strike which the union may
be planning for us and for you-- should they get in.
[Emphasis supplied.]
* * * * *
So forget what the union wants, forget what a
handful of inside union pushers wants, forget what we
want, you do what's best for you and yours because if
you do what's best for you and yours it will likewise be
the best for us, because I am sure you and your family
want peace and progress and this is why we came here,
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this is why we stay here, this is why we work here.
[Emphasis supplied.]
Cramer closed by saying:
This leaves only one question of yours - that has not
been fully covered - "what is in store for you - for us
- here at Howard" - and for that story I'll ask Mr.
Herzog to take over.
On this subject Herzog took over and commented:
You've asked "What is the company going to do for us
in the future" - you've asked questions about working
conditions - hours - vacations - wage inequities -
hospitalization and insurance - holiday pay and a lot
of other operational questions.
* * *
If we make a promise at a time like this prior to an
election we are guilty of breaking the law. But, thank
heavens - after tomorrow we'll have the right to talk
to you freely. It's only natural for management to want
to clean up all gripes as quickly as possible if not
hampered by the union - [it's] good business for us to
try to keep our employees happy. It has been our policy
during this period of growth, to pay what business can
afford and yet still stay in line with our competition.
And when changes are due - changes will be made.
[Emphasis supplied.]
Herzog promised:
We can provide a steady job - over which the union
will have no say - harmony and cooperation and trust
between us, means jobs for all of us. Outsiders mean -
and have always meant - strife - strikes - loss of
production for the company - and loss of work for the
workers.
He admonished:
. there's no room for outsiders when you make your
decisions - and no room for outsiders when we make
our decisions.
* * * *
. They cannot lick us if we stick together. We know
that most people are peace loving - they want work -
so let's fight them off together - if it's steady work -
steady pay you want - steer away from the union.
* * * * *
... The company and its workers together can prosper
and be secure only if we remain free from pressure
brought on by outside interference - and a very few
misguided union pushers from within.
Herzog's final pitch was:
Tomorrow is the election - from what I have seen and
heard - there is no question in my mind that most of
you will vote No - which is a vote against the union
and victory for you. So make it a big one - a landslide
victory against the union - this, for your company, will
mean that we are all pulling together and that the kind
of harmony we all need - is really here. Mr.
Hornbuckle & I have tried to speak to everyone here
personally to tell you how we feel about this & why. If
we have missed anyone - or if anyone wishes to
discuss this further before tomorrow afternoon - let us
know. When you vote No we will know that you are
voting confidence in your company, in your
management and in Mr. Hornbuckle, in Mr. Cramer
and myself personally - who have always had faith in
you our workers, as willing, industrious, fair minded,
honest church going folks - who prefer to live in peace
with each other and with us.
The Trial Examiner is of the opinion and finds that the
Respondent 's use of derogatory, pernicious, and
vituperative references to the Union in its letters and
speeches and its pertinacious, .persistent, and massive
vilification of the Union" permeating the Respondent's
entire election propaganda, contaminated the atmosphere
to the extent that employees were deprived of their right
to a free and untrammeled choice of bargaining
representative and interfered with rights guaranteed to
employees under Section 7 of the Act. Cf. Aeronca
Manufacturing Corporation, 118 NLRB 461.
In the light of the entire record and in the context used,
the Respondent violated Section 8(a)(1) of the Act by
President Herzog 's communications to employees above
detailed in which he related, among other things, that the
Union's appearance was "an attempt to destroy" the
Company and turn "this work place into a battleground";
the "Union could mean plenty of trouble"; " this union is
mad at us and has been trying to get even since 1956";
"employees have everything to lose"; "the Union can't be
of any help to you"; "the Union could mean plenty of
trouble for all of us"; employees could "count on us
without having to pay any union dues"; that if things
continue here without outside union disruptions or
troubles the Company "intends to do everything in its
power to continue to progress in the future as [it] has in
the past with steady work and steady pay"; getting mixed
up with the Union "could be the shortest and quickest
route to destroying your security and steady work"; there
is "nothing [the Union] can do other than drain off some
of your earnings for the privilege of letting them control
and regulate your lives"; "the Union cannot get a single'
thing that you cannot get yourself without the payment of
union dues"; "our relations will be bad if the Union is
serious about what they talk about"; "we feel the Union
destroys friendly relations"; if you "vote 'No' then you
will continue to progress as the Company progresses
without paying money for things you can get yourself
without a union"; "[w]e do not think that joining the
Union can justify the cost to you. We do not believe you
need a third person who charges dues and fees to insure
you of fairness in treatment - in job security - in wages
- and benefits - from us at Howard"; it "is only
natural for management to want to clean up all gripes as
quickly as possible if not hampered by the Union";
"outsiders mean and always meant - strikes - loss of
production for the Company - and loss of work for
workers"; "there is no room for outsiders when we make
our decisions"; "if it's steady work - steady pay - you
want - stay away from the Union"; and the "company
and its workers together can prosper and be secure only if
we remain free from pressure brought on by outside
interference - and a very few misguided union pushers
from within."
In the light of the entire record and in the context used,
the Respondent further violated Section 8(a)(1) of the Act
by Manager Hornbuckle's speech to employees on August
"The depth of the Respondent 's vilification of the Union is reflected in
the Respondent's handbills reproduced as Appendixes A, B, and C.
HOWARD MANUFACTURING CO., INC. 231
22, 1968 , in which he said among other things , that "[ i]t is
not necessary to seek outsiders to bring your problems to
management"; "[ i]f there are still other improvements or
adjustments in working conditions that you think should
be given or made - you as an individual or any group of
your co-workers are free to discuss such changes with me
and be sure they will be given consideration and attention
by me"; " I do not think a union in this plant would be
;beneficial to you"; "[ i]t is my honest and sincere belief
that your best interest and the best interest of the
company is in our continued personal relationship without
outsiders sticking their noses in"; " I can do a job for you
[i]f I had the chance"; and "[b]ecause if any of you are
voting for a union because of something we could work
out together or if you are voting for a union because of
something you haven ' t talked to me about then there is no
,need for all this because thank goodness it still isn't too
l ate." 10
In the light of the entire record and in the context used,
the Respondent further violated Section 8(a)(1) of the Act
by Secretary -Treasurer Cramer ' s speech to employees on
August 24, 1968 , in which he said, among other things,
that "[w]e believe that if [the employees ] join a union they
will be paying dues and assessments for things they can
get for themselves"; "we sincerely believe that our people
will not benefit by belonging to a union"; and "[w]e have
no plans to change our operation under normal
circumstances here ." In the entire context" of this case
the Trial Examiner finds that the foregoing
communications to employees were "calculated, and
tended, to impress upon employees the futility of selecting
,a bargaining representative and to intimidate them into ..,.
,abandoning the Union ." See Brandenburg Telephone,
Company, 164 NLRB No. 26.22
Fifth: On or about June 28 , 1967 (Supervisor Moore
fixes the date as after the vacation period ), Bonnie
Haislip , at the request of Supervisor Mary Moore,
accompanied her to the cafeteria area where among other
things Moore asked her "why [she] wanted a union."
Haislip "mentioned about [her] seniority . and the
notice on the board . . . that had been posted . . . about
the sick leave." Moore said she would take the problem to
Manager Hornbuckle.
The day after vacation Moore reported to Haislip that
Hornbuckle wanted to see her . Hornbuckle told Haislip
that he would give her her "seniority back from '64."
Moore denied that she had asked Haislip why she wanted
a union but remembered the conversation about seniority 27
"The invitation of Hornbuckle to employees to bring their grievances to
him indicates a concern that the Union ' s organizational drive might
succeed because of employee dissatisfaction . By such invitation Hornbuckle
unlawfully undertook a counteroffensive, offering direct dealings for the
purpose of weaning away employees from Union adherence . Cf. R. W.
Inc, d/b/a K-Mart Foods, 170 NLRB No. 67.
"The Trial Examiner has set out above excerpts from the Respondent's
communications to its employees . These excerpts have not been examined
in isolation , but in the context of the communications in their entirety.
Thus examined , the excerpts which are coercive in themselves take on an
even greater aggravated aspect.
""An employer interferes with the right of self-organization when he
emphasizes to his employees that there is no necessity for a collective
bargaining agent." N.L.R.B. v. Bailey Co.. 180 F.2d 278, 279 (C A. 6).
"Moore 's denial is discredited . As noted by the court in Hendrix Mfg
Co., Inc. v. N.L.R.B.. 321 F.2d 100, 104 (C.A. 5).
When, as done here , an employer sets out to campaign against a union,
one of the risks is that out of zeal , ignorance , or otherwise, foremen,
supervisors, and similar representatives in championing the anti-union
cause will overstep the mark.
and that she had gone to Hornbuckle and "[told] him that
Bonnie had spoke to [her] about wanting her seniority
back."
The ostensible object of Moore's question put to
Haislip was to elicit information which would be helpful
for the administration of the Employer' s antiunion
campaign. The information was so used and the employee
was granted a benefit which interfered with her rights
guaranteed under Section 7 of the Act. Likewise, the
question put to Haislip interfered with her rights
guaranteed under Section 7 of the Act and constituted
unlawful interference with the election. 24
Sixth: As did other supervisors, Supervisor Muriel
Dixon talked to employees working under her individually
several times during the election campaign. Shortly after
employees returned from vacation Dixon engaged in
conversation with Jimmye Lee White about the Union.
White was reluctant to discuss the Union but Dixon
responded that "she was advised by the management to
tell [her] about it." Dixon asked White whether she knew
that "a union [was ] trying to get in the plant." White
'answered,"Yes." Dixon also asked her whether she had;
"attended [union] meetings." When White answered
"Yes," Dixon commented that "there were two sides to
every story, the union's and the company's."
Modean Hutson credibly testified that while riding in a
car with Dixon, Dixon said to her, "[i]f you don't have
any strong feelings, or if your feelings are not too strong
for the union, I would like for you - I would like to ask
you to vote no for me, because I can 't vote."
The Trial Examiner finds that Dixon's interrogation of
employee White was unlawful. The clear purpose of these
questions was to assist the Employer in its antiunion
campaign . White's reluctance indicated an apprehension of
reprisal. Moreover, the Respondent has shown no proof
that such questioning was pursuant to the Employer's
legitimate business interests. Cf. Winchester Spinning
Corporation v. N.L.R.B., 402 F.2d 299 (C.A. 4).
Supervisor Dixon's request to employee Hutson to vote
"No" for her interfered with rights guaranteed employees
by Section 7 of the Act and was in violation of Section
8(a)(1) of the Act.
Seventh: Among the employees contacted by President
Herzog was a member of the Union' s organizing
committee , Bessie Carrigan, a Negro. A conversation
between Herzog and Carrigan took place in the shipping
department on company time. Among other things
Herzog commented that he knew that her name was on
"the telegram " for the "union committee" and that the
"union can cause trouble."" He called attention to the
fact that he noticed that most of the "colored girls"
names were on the union telegram and asked, "Did they
promise you all any civil rights?"36 He received a negative
reply. He further told her that if the Union prevailed, she
would not be able to "go to the office and to [her]
"The Trial Examiner has made no 8(axl) finding in respect to Moore's
coercive interrogation in that, although Moore places the conversations
with the employee after July 3, 1967, the last date within the 6-month
limitation period, proof is not positive that the Haislip 's interrogation was
not on June 28 or 29, 1967.
"Herzog testified that he told Carrigan or at least told some employees
that "the union caused plenty of problems and troubles for the company in
running its plant , running its operation , and this was one of the reasons we
didn 't want a union "
"Although Herzog denied he had asked Carrigan the question, he said
that he had told Carrigan "if the civil rights issue had been brought up in
the campaign , it did not belong there ." Herzog 's denial is discredited
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor with any of [her] problems" but would have to
go through the union stewards 27 He inquired whether
there was anything that she disliked She answered, that
there was too much favoritism in the plant ' Whereupon
Herzog asked, ` Do you think that the union can solve
that " She responded, I have my ideas about it He
replied, The union can cause trouble " Shc asked, ' Who
will the union hurt, the employees or the company7"
Herzog answered, "The company,' and added that the
Union was `a pack of headaches " 38 Herzog also told her
that if the Union caused trouble she could be held
responsible for it ' 29
Herzog talked for about 55 minutes with employee
Tipton "about 12 feet away from the machines, by a
storage bin,' about a month before the election Among
other things Herzog asked her if she `was for the Union "
Although he said that he was not supposed to ask such a
question, she answered that she expected to vote for the
Union He told her she should be 100 percent sure on
something like this ' in that she was involving people in
things that they might not want to be involved in "
Among other things Herzog mentioned the strike in the
New Jersey plant and commented that the people voted
the union in, the company would not sign a contract They
went on strike The Company obtained a court order to
get their machinery out, and the `people wanted to come
back as a non-union plant, but couldn't Herzog added
that he wanted these people to come back but they
couldn't because they had voted in the Union He
observed that `the union could call a strike and the people
not have anything to do about it," that the employees
"could be out and lose a lot of work because of a strike
and that "he didn't have to sign a contract 11
"Herzog testified One of the points that I tried to make was the fact
that when you have a union this cuts down on communication between
management and the employees to a certain extent and that any grievances
that they had usually will have to go through a grievance committee
rather than being taken up directly by the employee and the management
"Herzog said he remembered employee Carrigan s complaining about
favoritism in the plant He said that he responded to that by saying Well
do you think the union can do anything about that ' He denied that he
had indicated to her that the Union was a pack of headaches Herzog s
denial is not credited
"On this subject Herzog testified that he told Carrigan that because of
her membership on the organizing committee she had an added
responsibility more so than other people in the plant who were not on the
organizing committee because it was obviously her intention to influence
people in the plant to vote for the union therefore [he] told her that [he]
felt she had this added responsibility making sure of the issues getting
answers to all of her questions and being satisfied that those answers
that they were correct as far as could be determined Herzog testified that
he told members of the committee among other things that they would be
responsible for whatever happened in the plant Herzog testified I told
them they had a greater responsibility toward learning the facts and getting
their questions answered and making sure that the answers they got were
satisfactory that they evidently had an intention to influence people in the
plant toward the union and that therefore this greater responsibility
existed In his affidavit Herzog deposed I explained to these employees
because they had signed the list that they would now be responsible for
whatever happened in the plant regarding the union campaign
"Such remark may not be disassociated with Herzog s comment in his
speech of August 22 1967 to the effect that wages could be frozen during
negotiations
"Herzog agreed that there was a discussion about job switching and said
that he explained that if we were not allowed to job switch there were
people who would only have a partial days work or a partial weeks
work Hornbuckle expressed the belief to employees in his speech of
August 22 1967 that unions liked a nonswitch policy because it meant
that they could collect more dues from more people Some people would
Herzog also told Tipton that if the Union were voted in
where [employees] work eight hours now, [they] would
be working at least four hours' and if they `didn t have
work at [their] machines [they] would have to be sent
home, because [they] couldn't job switch ""
Herzog further commented that the Union took [the
employees] money and couldn't give [them] anything "
Employee Jimmye Lee White was accosted by Herzog
about the middle of July in the perma-press department
Herzog asked her whether the Union had "promised [her]
anything as far as civil rights was concerned " She
answered, I cannot answer you " He further commented
that "if the union got into the plant that there would
always be a strike and the only thing that the union was
interested in was our dues " He pointed out to her that
`the union isn't giving you anything, the company is the
one that is going to have to give it to you and this
company isn't giving anything so that there will
automatically be a strike " This point was aruged between
Herzog and White and, according to White, Herzog kept
"hollering strike, strike, strike, strike, like he was trying
to drill it into [her] brain that the minute the union got in
there the company would have to go on strike, that [the
employees] wouldn't have anything to say about it that the
union would just say strike, because [they] didn't get the
things they wanted for [them] " Herzog repeated that all
the union was interested in was [the employees] money
The only thing they were after was dues " White reminded
him that through the Union they would get higher wages,
a paid vacation, holidays, off with pay, and a lower
insurance plan " He responded that ' everything you
get is coming from this company, and this company is not
going to give anything, so it would automatically be a
strike The union would take the people out on strike ' 12
Employee Bobbie Butler was approached by Herzog at
her machine and was escorted to a place where a private
conversation could be conducted 31 Herzog told her that he
wanted to talk to her about the Union and that since her
name was on the telegram that he thought it was very
important that he talk to [her], since [she] was on the
organizing committee " Herzog told her that ' if the union
got in it would be nothing but trouble, and that all they
were wanting was [the employees'] dues, the union dues "
Herzog asked Butler what the Union dues would be and
she told him that they were $3 75 a month He said
` Well, if you multiply that by approximately 150 people
working here that comes to around $6,000 You
know, that's a lot of money" Butler asked him `if he
didn't think [the employees] had trouble there as it was
Herzog answered, " we would work them out
Herzog also told her "that if the union got in that [the
employees] wouldn't be allowed to job switch, that they
didn't work that way that they wanted him to hire more
workers so they could collect those dues " At the
conclusion of the conversation Herzog said "Well, Bobbie,
I don t know how resourceful you are, but I hope for your
be working and others would be laid off at different times but the union
would collect from all the people all the time
"Herzog denied that he said there would be an automatic strike if the
Union got in and that he kept repeating the words strike strike strike
Herzog s denial is discredited
"By singling out employees for interviews away from their work stations
and urging them to reject the Union the Respondent created and utilized a
setting in which fear of employer reprisal if the employees choose the
Union was the likely product
HOWARD MANUFACTURING CO., INC.
sake you are very resourceful.""
During the election campaign Herzog also approached
employee Bonnie Haislip and after taking her to an
isolated spot told her that he noticed that her name was
on the telegram that was sent to the Company and that
"he noticed that most of the names on there were colored
people." He asked "if [the colored people] were promised
any civil rights benefits"; she told him "no." Reference
was made to job switching. Herzog said that the "union
wouldn't let you switch jobs" and if "they didn't have
work, they would be sent home, and if they couldn't job
switch they would have to find somewhere else . . . to
move [the plant]." He explained that all the Union wanted
was "your dues, and something about strikes." He asked
her if she "had to work" and she told him "no.""
Deronda Brown was also contacted by Herzog who told
her that when she signed the telegram she "took on the
responsibility not only for [herself], but for the entire
plant." 16
The Trial Examiner finds, apropos of the environment
created by the Respondent' s antiunion campaign, that the
Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section
7 of the Act and thereby violated Section 8(a)(1) of the
Act in the following particulars, to wit:
1. Herzog impressed upon employee Carrigan the
futility of selecting the Union by stating, in the context
used, that "the union can cause trouble and was a pack of
headaches."
2. Herzog unlawfully interrogated employee Carrigan
by asking her, "Did they promise you any civil rights?""
"Herzog agreed that he had had a conversation with Bobbie Butler
sometime after the vacation period . He said he didn ' t remember the
statements about union trouble and he could not remember specifically
whether he spoke to Butler about dues . However, he said that he had
"mentioned to people that this was big business for the union , that it
meant a lot of money for them , and that they would have a vigorous
campaign because of that, and [he ] proceeded to outline approximately
what it would mean in that respect . [He] didn ' t know the exact amount,
but [he] knew that probably dues would be somewhere between $3 or $4 a
person With roughly 150 people in the plant, that would amount to a
sizable sum of money for the union treasury." He said that he might have
said that " the union was only interested in employees ' dues" Herzog said
he had brought up the question of job switching to "quite a few people,
and [he] pointed this out to them , that switching from job to job was
important for production , it was important for balancing , and if we weren't
allowed to do this, we would have to send people home, with either a
partial day's work , or a partial week 's work ... The union was obviously
objecting to this, and [he] felt it was a point that should be brought to
their attention , and sometimes somebody asked [him ] why the union
objected to this point, and [he] told them - why the union objected to job
switching , as such , and [he] told them that the only reason [he] could think
of was the fact that if [the employer wasn ' t] allowed to switch people from
job to job and they were sent home with a partial day's work , or a partial
week ' s work , [the employer ] would have to hire more people to do these
particular operations that were being done by job switching, and this would
provide more dues paying union members."
"Herzog recalled a conversation with Bonnie Haislip and that he had
told her what he told the others on the organizing committee , that he "felt
they had an added responsibility , because they were on the organizing
committee , of getting the facts and the issues straight , getting the
information . If they were going to impart any information , they should be
sure of the veracity as such , and if she had any questions she should be
sure to get the answers , and she should ask herself plenty of questions
about it." He denied that he had told her that if the Company could not
switch jobs, it would move the plant. Herzog 's denials are discredited.
"Herzog testified that he probably made the statement to her about the
"added responsibility."
"Herzog 's interest in civil rights matters manifested an attempt to
procure information which would A ssist the Respondent in combating the
233
3. Herzog, suggesting that a substantial benefit would
be curtailed, coerced employees by stating to employee
Carrigan that if the Union prevailed, she would not be
able "to go to the office and to your supervisor with any
of your problems" but "would have to go through your
stewards "18
4. Herzog unlawfully interrogated employee Carrigan
as to whether there was anything she disliked.
5. Herzog unlawfully threatened employee Carrigan
with reprisal by telling her that, if the Union caused
trouble, she could be held responsible.
6. Herzog unlawfully threatened employees with
reprisal by telling members of the organizing committee
that they "would be responsible for whatever happened in
the plant."
7 Herzog unlawfully interrogated employee Tipton, in
the context used, as to whether she "was for the union."
8. Herzog restrained employees in their rights
guaranteed by Section 7 of the Act by his statement to
employee Tipton that if the Union were voted in,
employees would be sent home if they didn't have work on
their machines and that employees "couldn't job switch.""
9. Herzog impressed employee Tipton with the futility
of selecting the Union by stating to her that "the union
took [the employees'] money and couldn't give [them]
anything."
10. Herzog unlawfully interrogated employee White as
to whether the Union had "promised [her] anything as far
as civil rights [are] concerned."
11. Herzog impressed employee White with the futility
of selecting the Union by his statement to her that "this
company isn't giving anything so that there will
automatically be a strike."
12. Herzog restrained employees in their rights
guaranteed by Section 7 of the Act by his statement to
employee Butler that "if the union got in that [the
employees] wouldn't be allowed to job switch, that they
didn't work that way; that they wanted him to hire more
workers so they could collect those dues."
13. Herzog restrained employees in their rights
guaranteed by Section 7 of the Act by stating to employee
Butler , a member of the. organizing committee, "Well,
Bobbie, I don't know how resourceful you are, but I hope
for your sake you are very resourceful."
14. Herzog unlawfully interrogated employee Haislip as
to whether the "[colored people] were promised any civil
rights benefits."
15. Herzog restrained employees in their rights
guaranteed by Section 7 of the Act by his statement to
employee Haislip that the "union wouldn't let [them]
switch jobs" and that if "they didn't have work, they
would be sent home, and if they couldn't job switch they
would have to find somewhere else . . . to move [the
plant]."
Union 's organizational campaign by fathoming the reason for almost all of
the black employees associating themselves with the union committee.
Mentioning that 28 Negros out of 31 or 32 were on the union committee,
Herzog testified that "the thing that hit [him] about it was that almost
every Negro employed in the plant was a member of the organizing
committee "
"See Graber Manufacturing Co, Inc, 158 NLRB 244, 246; Standard
Electric Co, Inc., 162 NLRB 1045
"In Wall Colmonoy Corporation , 173 NLRB No. 8, the Board held that
it constituted interference with an election where an employer told an
employee "that if the Union came in , classifications would be maintained
and the employees would not be allowed to shift from one job to another,
and that if there was insufficient work a layoff might result "
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16. Herzog restrained employees in the exercise of
rights guaranteed by Section 7 of the Act by stating to
employee Brown that she "took on the responsibility not
only for [herself], but for the entire plant" when she
signed the telegram listing the Union organizing
committee.
Each of the foregoing findings have not been considered
in isolation but have been weighed upon the basis of the
Respondent's entire course of conduct and evolved from
the record as a whole.
Eighth: On June 20, 1967, two representatives of the
Union passed out handbills at the premises of the
Respondent. On that day Manager Hornbuckle stood
about 5 or 6 feet from Union Representative Jordan, who
was passing out the handbills, for a period of about 10
minutes, in a position where he could observe the
employees who were receiving handbills from
Representative Jordan.
On June 21, 1967, after handbilling, Representative
Jordan met several factory workers of the Employer in the
vicinity of the legion hut where employees sometimes held
meetings . While she was standing there talking to these
employees, Supervisor Walter Evans, a cutting room
foreman, drove by in his automobile four times looking in
the direction of the conversational ists. 11
During the week of August 14, 1967, Union
Representatives Ruth Kincy and Agnes Jordan handbilled
the Respondent's plant on two occasions. At the same
time they were handbilling, Supervisor Henry Tanner and
Manager Charles Hornbuckle also were handbilling at the
same location. Tanner handbilled adjacent to Kincy, and
Hornbuckle to Jordan. Tanner remarked to employees
that he had some "literature for you today, we want you
to read." While Hornbuckle passed out handbills, he said,
"this is the one to read. This is the truth." He called
many of the employees by name. One of the employees
threw down the union handbills and said, "I want the one
that's got the truth on it."
The Trial Examiner is in agreement with the conclusion
drawn by the Regional Director that the conduct above
described interfered with the election. "As the Employer
mailed several letters and leaflets to the plant employees,
made numerous captive audience speeches the week of the
election , the Employer 's explanation of this handbilling is
rejected. It had effective methods of reaching the
employees with its campaign messages inside the plant,
and freely availed itself of those methods with no apparent
apprehension that the Petitioner would demand `equal
time.' Accordingly, it is found that the Employer's
supervisors, in conducting its handbilling off its property,
but next to Union Representatives engaged in the same
activity, undertaking to ascertain the identity of employees
who accepted the Union's literature , and were also
endeavoring to deter by their presence, employees from
accepting such literature.
"However, even if it is concluded that the employer's
handbilling was not conducted with the actual purpose of
engaging in surveillance of the Union's handbilling, I find
that the surveillance did in fact occur by virtue of the
supervisors' close proximity to this Union activity. It is
the Employer 's conduct which interferes with employees'
rights rather than his motive ." See Wright & McGill
Company, et at.. d/b/a Shays Point Fish Hook Company,
102 NLRB 1035.
This testimony is uncontradicted.
The Trial Examiner further finds that the conduct
above detailed interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section
7 of the Act and was in violation of Section 8(a)(1) of the
Act."
"An impression of surveillance might well instill in the
employee a fear of reprisal from the employer. Such
conduct is violative of Section 8(a)(1) as it could inhibit
the right of employees to pursue their union activities
untrammeled by the fear of possible employer economic
coercion or other forms of retaliation." N.L.R.B. v.
Ralph Printing and Lithographing Company, 379 F.2d
687, 691 (C.A. 8). See also N.L.R.B. v. Community
Motor Bus Co.. Inc., 335 F.2d 120, 122 (C.A. 4).°2
Ninth: The parties stipulated that the following unit
was appropriate for the purposes of collective bargaining:
All employees employed by the Respondent at its
Nashville, Arkansas, plant, including all production and
maintenance employees, excluding all office clerical
employees, guards and supervisors as defined in the
Act.
For the purpose of determining the eligibility of
employees for inclusion in the appropriate unit, three
payroll sheets were submitted for the payroll periods June
9 through 22, 1967, June 23 through July 6, 1967, and
July 7 through 20, 1967. As to these payrolls the parties
stipulated that Henry Tanner, whose name appears on
each payroll, should be excluded from the appropriate unit
as a supervisor. Additionally, the parties stipulated that
Janice Chambers, whose name appears on each payroll,
should be included; that Lucille Jones, whose name
appears on none of the payrolls, should be included; that
Mary Ann Ray, whose name appears in the June 9
through 22, 1967 and the July 7 through 20, 1967,
payrolls, should be included; that Ozella Reese, whose
name appears on the June 23 through July 6, 1967 and
July 7 through 20, 1967, payrolls, should be included; and
that Marjorie Smith, whose name appears on each
payroll, should be included. In addition to the
above-mentioned exclusion and inclusions, it was
stipulated that all employees appearing on each of the
payrolls should be included as eligible for the computation
of the majority status of the Union with the exception of
those classified as supervisor.
On the June 9 through 22, 1967, payroll appear the
names of 159 employees, 8 of whom are supervisors
including Tanner. Thus a total of 151 eligible employees
appear on such payroll. To this number is added
employees Lucille Jones and Ozella Reese whose names
do not appear on this payroll but were included by
stipulation of the parties. The total eligible employees
hence during the payroll period June 9 through 23, 1967,
are 153 employees. Eighty-six employees, " whose names
aThe Trial Examiner 's findings of 8(axl) violations do not apply to
incidents which occurred prior to July 3, 1967.
"In Hendrix Manufacturing Company . Inc. v. N L R B. 321 F.2d 100,
104 (C.A. 5), fn. 7 , it was said:
Surveillance becomes illegal because it indicates an employer's
opposition to unionization , and the furtive nature of the snooping tends
to demonstrate spectacularly the state of the employer 's anxiety. From
this the law reasons that when the employer either engages in
surveillance or takes steps leading his employees to think it is going on,
they are under the threat of economic coercion, retaliation, etc.
"The names of Roma A. Loftin , Edith Loney, and Martha E. Kidd,
whose cards bear the dates of May 16, 1967, August 17, 1967, and May 9,
1967, respectively, do not appear on the payrolls for June 9 through 22,
1967, and June 23 through July 7, 1967.
HOWARD MANUFACTURING CO., INC. 235
appear on this payroll, had signed unambiguous union
designation cards" by June 12, 1967, the demand date. Of
these cards the Respondent challenges the validity of 8
cards" for the purpose of establishing the majority status
of the Union.
Respondent contends that the cards of Modean Hutson,
Earline Tipton, Bobbie Butler, and Bonnie Haislip are
"invalid for proving the majority status because the union
organizers or their agents misrepresented the cards'
purpose to the employees to be related to obtaining of a
representation election."
Modean Hutson. Modean Hutson testified that she read
the union designation card before she signed it. On
cross-examination Hutson testified, "I was told it was an
application for membership . . . that there would be no
dues or anything like that . . . unless it was voted the
union." When asked whether she was told that the
purpose of the card was "to get this union election at the
plant," she answered, "No. The only thing I recall was
she said the more that signed them, the surer they were of
how many votes they would get in an election."
Earline Tipton. Earline Tipton received her designation
card from Union Organizer Jordan at her home where she
signed it and returned it to Jordan. Tipton had also signed
the telegram designating the Union's organizing
committee. Tipton testified that prior to the time she
signed the card Jordan "discussed it to see if [she] was
interested in it at all, to see if [she] did want the union to
represent [her]." To a questionnaire submitted to Tipton
by the Board's Regional Office she answered, "We were
told it would not commit us, it would not necessarily have
any affect on the way we would vote, but that the card
was to show if we might be interested in the union." She
"The card read:
APPLICATION FOR MEMBERSHIP
in the
Amalgamated Clothing Workers of America AFL-CIO
209-1/2 W. SECOND FRankl 'm 46750 LITTLE ROCK, ARK
I, the undersigned , hereby apply for membership in the Amalgamated
Clothing Workers of America , and do hereby appoint and authorize the
officers thereof, to represent and negotiate for me in all matters
pertaining to wages , hours and other conditions of employment.
Name (Please sign):
Address:
Telephone Number
Company:
Date.
Department : Operation.
"The Respondent contends that the cards of employees,
Della Mae King Judy Rodgers Nancy Richards
Pira Lee Scott Mary Crofton Ira Jean Thomas
Mary Mims Eugenia Cassady Diane Tollett
Lucie Wilson Earline Stuart Sharlotte Young
Essie Dean Staggers Avis Graves Aline Hughes
Laverne Johnson Cox Marie Lee White Florida McGhee
Zether Deloney Kay Tollett Lorene Grundy
should not be considered in that proof is lacking that the Union had these
cards in its possession on the critical demand date. This contention fails for
the reason that the cards of these employees , with the exception of the
cards of Laverne Johnson Cox and Sharlotte Young , bear the "NLRB
26th Region-Memphis" stamp dated June 16, 1967 . The Respondent's
response to the Union 's demand was likewise dated June 16, 1967 . Thus it
is apparent that the Union , which submitted the cards together with its
petition to the Board on June 16, 1967, possessed the cards on the critical
date . Laverne Johnson Cox's card was dated June 29 , 1967, and Sharlotte
Young 's card was dated July 10, 1967 . Both cards bear Regional Office
stamps dated January 9, 1968 . These two cards are not included in the 86
cards above mentioned.
further testified that she was told, "We didn't have to vote
if there was a vote. We were signing the paper or the card
for the purpose of seeing how many people was interested
in having the union represent them." She testified that she
was further told that "there would be an election if we
could get at least 50 percent of the people to sign up the
application blanks." She testified that she could not
remember whether she heard the latter statements before
or after she signed her card.
Bobbie Butler. Bobbie Butler's name appeared on the
telegram designating the Union's organizing committee.
She was given her union card at her home where she
signed it and returned it to a union organizer. Butler
testified, "I don't know what she said, really. I just knew
that I wanted to sign the card, and I did sign it."
Bonnie Haislip. Bonnie Haislip's name also appeared
on the telegram designating the Union's organizing
committee. Haislip read the card before she signed it at
her home. Haislip was told by the union organizer that
the card "wasn 't for an election." In answering the
Board's Regional Office's questionnaire she stated, "I was
told the card was for application for membership in the
union and the union was for better working conditions and
higher wages. . . . If it won."
Measured by the Board's rules as set forth in Levi
Strauss & Co., 172 NLRB No. 57, and McEwen
Manufacturing Company, and Washington Industries,
Inc., 172 NLRB No. 99, the Trial Examiner finds the
foregoing cards to be valid for the purpose of determining
the union's majority status. Moreover, it is highly unlikely
that Tipton, Butler, and Haislip should have served on the
Union' s organization committee and not have designated
the Union as their bargaining agent.
The Respondent further objects to the validity of Bessie
Carrigan's card which was signed by another at her
direction. Carrigan testified that she had read the card
before she had authorized the signing of it. Carrigan's
name also appeared on the telegram designating the
Union' s organizing committee. Carrigan testified of the
card, . . the statement was made that I understood
about the card where if we wanted the union to represent
us, if we get in enough cards." In view of Carrigan's
membership on the organizing committee, the Trial
Examiner has no doubts that the procedure followed by
Carrigan was sufficient to perfect a valid designation of
the Union as her bargaining representative.
The Respondent also objects to the validity of the card
of Elrette Coulter on the ground that it was improperly
authenticated. Employee Mary Crofton testified that she
had given a card to Elrette Coulter which Coulter
returned to her with Coulter 's signature on it. Coulter's
W-4 Form was submitted for verification of her signature.
It was agreed that the W-4 Form was supplied from the
Company's records. The Trial Examiner has compared the
signature on the W-4 Form with the signature appearing
on the designation card offered into evidence, which was
purported to be Coulter's card. The Trial Examiner is of
the opinion that the same person wrote the signature
appearing on the card and the W-4 Form. In reaching this
conclusion the Trial Examiner relies upon the testimony
of Crofton that Coulter handed her the card signed, the
likeness of the signatures , and the lack of any credible
proof that Coulter did not sign the card. In respect to the
comparison of signatures , the Trial Examiner notes that in
both signatures the written capital letter "E" is
transcribed with a peculiarity which is not often observed
in the written letter capital "E." A rather unique loop
appears.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner reserved ruling on the admission of
Coulter's designation card, General Counsel Exhibit 3(H);
it is hereby admitted. The Trial Examiner finds that
Coulter's card is valid for the purpose of designating the
Union's majority status.
The Respondent objects to the card of Kay Tollett
because she testified that "a union organizer
misiepresented the effect of the card when she was asked
to sign by telling her that the cards did not obligate the
employee in any way."
Kay Tollett testified that she read her designation card
before she signed it and mailed the card to the Union She
testified that before she signed the card a union
representative came to see her and among other things
told her that the card "didn't obligate" her "in any way";
"she said they were interested in finding out how many
were interested." Tollett remembered nothing said about
an election. Tollett later signed the card.
The Trial Examiner does not believe that, even though
Tollett had signed the card under the circumstances
described, the card would have been invalid for
designating the Union as Tollett' s bargaining agent. If the
Trial Examiner were to hold the card invalid it would
mean that a vote cast by an employee for a union, which
may be cast without obligation in any way to the Union,
would be likewise invalid. Thus, it would seem that a vote
cast without obligation in any way to the Union or a
designation signed on the same terms may validly
designate the Union as the employee's bargaining agent.
In fact the Act protects the employee's right to vote in
favor of the union and yet refrain from becoming a
member of the union.
Finally, the Respondent contends that employee Stella
Hile's card is invalid in that Organizer Jordan "attempted
to authenticate its execution but admitted that she did not
see Hile sign the card and did not remember if Hile or
someone else signed the card."
Organizer Jordan testified that Hile handed the card to
her signed as it appeared as an exhibit. Such testimony is
sufficient to establish the validity of the card under the
rule of Levi Strauss Co, supra, and McEwen Mfg. Co.,
supra
Thus on the demand date, June 12, 1967, the Union
had been designated by 86 employees as their bargaining
agent for the purposes of collective bargaining . A majority
would have been 77.
The Trial Examiner finds that on June 12, 1967, the
Union had been designated for the purposes of collective
bargaining by the majority of the Respondent's employees
in the unit appropriate for such purposes and unless
otherwise excused, the obligations of Section 8(a)(5) of the
Act became fixed.
On the June 23 through July 6, 1967, payroll appear
the names of 160 employees, 8 of whom are supervisors
including Tanner. Thus, a total of 152 eligible employees
appears on such payroll. To this number are added
employees Lucille Jones and Mary Ann Ray whose names
do not appear on the payroll but were included by
stipulation of the parties. The total eligible employees
hence during the payroll period June 23 through July 6,
1967, are 154 employees. Ninety-two employees, whose
names appear among the 154 employees, had signed
unambiguous union designation cards by July 3, 1967, the
date first within the Section 10(b) period.4' Of the 154
"At the hearing the Respondent moved to dismiss the Sec . 8(a)(5)
allegations in the complaint on the ground that the "Unions bad faith
refusal to bargain charge was filed on January 3 , 1968 (GC Exh. 1(d))
cards in addition to the 8 cards challenged above; the
Respondent challenges the validity of the cards of Linda
Henderson and Patsy Wesson. Union Representative
Jordan testified that she saw these cards signed by the
signers at the union meeting of June 22, 1967. The
signatures of Patsy Wesson and Linda Henderson appear
on the attendance sheet of such meeting. The Trial
Examiner credits Jordan's testimony and finds the cards
to be valid
Thus on July 3, 1967, the Union had been designated
by 92 employees as their bargaining agent for the
purposes of collective bargaining . A majority would have
been 78.
The Trial Examiner finds that on June 12, 1967, and
thereafter, 47 including July 3, 1967, the Union had been
designated for purposes of collective bargaining by a
majority of the Respondent's employees in the unit
appropriate for such purposes and unless otherwise
excused, the Respondent is under the extant requirement
to recognize and bargain with the Union in accordance
with Section 8(a)(5) of the Act.
Tenth- The Respondent adopted these words, "because
we doubt, in good faith," as the means of conveying its
reason to the Union for declining to recognize the Union.
By these words the Respondent attributed to itself both
"doubt" and "good faith." Doubt is defined as
"uncertainty of the mind ."48 In N L.R.B. v. The Richman
Brothers Company, 387 F.2d 809 (C.A. 7), the court
opined that industrial stability "requires that collective
bargaining begin once a proper foundation is laid by the
union ." Continued the court: "When all genuine doubt of
the union 's majority status in an appropriate unit has been
erased, the employer's duty to bargain collectively
becomes fixed." The court held that the employer "could
have no genuine, reasonable doubt of the union 's majority
status" when the employer became "aware" of the union's
majority status.49 Under such circumstances, the court
further opined that it was unnecessary to determine
whether "respondent's Sec. 8(a)(1) and (3) violations were
alone sufficient evidence of bad faith." Thus the issue of
good faith becomes relevant only if there is doubt or
"uncertainty of mind." Where doubt as to the Union's
majority status does not exist or under the circumstances
cannot exist in the Employer' s mind , that is, if there can
be no genuine, reasonable doubt, the Employer's duty to
bargain collectively becomes fixed and his refusal to
bargain is unlawful.30
which was in excess of six months from the critical date this violation must
have as a matter of law occurred when Respondent received and answered
the Union 's only noncontinuing offer of recognition on or about June 16,
1967." The Trial Examiner overruled the motion . In respect to this ruling
the Trial Examiner has reviewed the entire credible record and adheres to
the ruling.
"There is no credible evidence that any employee withdrew his union
designation.
"Black 's Law Dictionary, 4th ed.
"Each employee had affirmed his support for the union upon being
questioned by the employer.
"In N.L R B v Philamon Laboratories, Inc., 298 F 2d 176, 179 (C A
2), the court said
The act imposes a duty to bargain in good faith upon request
whenever a labor organization has been designated by a majority of
employees in an appropriate bargaining unit The employer must
recognize and bargain with such an organization whether or not it has
been certified by the Labor Board . United Mine Workers of America v
Arkansas Oak Flooring Co. 351 U.S. 62 . . (1956), N.L R B. v.
Sunrise Lumber & Trim Corp, 241 F 2d 620 (2 Cir, 1957), cert. denied
355 U.S. 818 (1957 ). To be sure , an employer laboring under a good
HOWARD MANUFACTURING CO., INC. 237
In the instant case the Employer rejected all methods of
erasing doubt as to the majority status of the Union
except through "the election processes of the National
Labor Relations Board."61 It declined the Union's offer to
prove its status through an impartial card check. While
the Employer, in its response to the Union, rejected the
proffered card check because it would not show "the
circumstances under which employees allegedly signed
cards," it would not show "what inducements were made
employees" and it would not show what "representation,
misrepresentations or threats" had been made to
employees, the Employer neither came forward with any
evidence nor did it make claim that it possessed any
evidence which would prove that any of the cards had
been invalidly procurred. Nor was such evidence produced
by the Employer at the hearing in this matter. Moreover,
the Employer made no attempt through permissible
procedures to ascertain whether the employees had signed
valid cards. Thus the Employer's objection to the card
check must be deemed to have been specious.
The Employer's point of view expressed in its rejection
letter anticipated its subsequent course of conduct, and its
adventure into bad faith, for it later advised its employees
that "if you have signed cards - or telegrams or lists
don't let that worry you - they are not binding and,
because you have signed something , does not mean that
you have to vote for them." The Employer's conviction
that union designations were "not binding" (no suggestion
having been made as to their invalidity) creates the strong
inference that the Employer lacked a sincere conviction
that the Union did not represent a majority of the
Employer's employees. It would appear that without
weighing the probabilities of majority status at all, the
Employer closed its mind to designation cards in any form
as proof of the uncoerced desires of its employees. The
Employer's position was not that the Union may have
lacked a majority of valid cards but that cards were
immaterial as proof of majority status. In other words the
Employer's good-faith doubt sprang from the conviction
that it was entitled to test the Union's majority status by
an election and not from a sincere conviction that the
Union did not represent a majority of its employees." The
Respondent's refusal to bargain did not relate to the, lack
of union majority but, it seems clear, stemmed from its
resistance to the law which does not limit an employer's
laith doubt as to a union ' s majority status need not extend recognition
Nevertheless , in the absence of such a doubt , the employer has no vested
right to an election . N L.R B Y. Trimfit of California, 211 F.2d 206 (9
Cir., 1954).
In N L R B v. Elliott-Williams Co , Inc , 345 F 2d 460, 464 (C. A. 7),
the court stated:
The duty to bargain is not dependent on a Board election and
certification . An employer may refuse an unequivocal demand for
recognition and bargaining only on the basis of a good faith doubt of the
genuineness of the union 's claims, and the union does not withdraw or
waive its demand by seeking an election when the employer makes it
clear that it will not recognize the union.
" In Bryant Chucking Grinder Co. v. N.L.R B. 389 F 2d 565, 568 (C.A.
2), the court , where the employer rejected a card check, cited, as lack of
support for an employer's alleged good -faith doubt as to the Union's
majority status, the announcement of its "very definite policy of refusing
any evidence of representational rights other than a Board certification."
"Herzog advised employees in his August 21 speech.
In the union 's scheme of things the signed cards probably mean a lot,
but as far as the election is concerned the card doesn ' t mean anything
any more - because anything you may have signed - anything you
may have said - any money you may have paid has nothing whatsoever
to do with the way you vote.
duty to bargain to a demonstration of the majority status
of a union only by a representation election. The
Employer's erroneous view of the law negates reliance
upon good faith as a defense to a charge of a refusal to
bargain. Old King Cole, Inc., v. N.L.R.B., 260 F.2d 530,
531 (C.A. 6) "It is well settled that prohibited conduct,
that is, practices lawfully proscribed, cannot be justified
on good faith misunderstanding of what the applicable law
is or how it is to be applied." N.L.R.B. v. Bardahl Oil
Company, 399 F.2d 365 (C.A. 8).
A good-faith doubt as to a Union's majority status
stems from a sincere conviction that the Union does not
represent a majority of an employer's employees. Alleged
good-faith doubt lacks sincerity and credence if it is
accompanied by a rejection of the principles of collective
bargaining or if it is put forward as an excuse to gain time
in which to dissipate the Union's strength and stifle
potential union growth. Good faith seized upon for such
purpose is evidence of bad faith.
The court has said in N.L.R.B. v. Economy Food
Center, Inc . 333 F.2d 468, 472 (C.A. 7): "The existance
of good-faith doubt, in light of all the circumstances,
raises mainly a question of credibility ""
Thus, the credibility of Herzog, the admitted source of
the Respondent's alleged good-faith doubt, is germane.
The Trial Examiner is of the opinion that Herzog was not
a credible witness in respect to matters which were at
issue in this proceeding. Herzog's approach to the instant
case was another step to be taken in barring the Union
from the Respondent's plant. Both Herzog's demeanor
and his discernible cognizance of the exigencies facing the
Respondent convince the Trial Examiner that he testified
partially for the Respondent and colored and conformed
his testimony in order to obtain the greatest advantage for
the Respondent."
Herzog planted his good-faith doubt upon (1) his prior
experience that the Union's majority demands were not
substantiated by election returns and (2) his lack of
knowledge of any union organizational activity.
Herzog's sincerity in respect to his grounds for
good-faith doubt are suspect. First, Herzog, as
experienced in this field, must have known that union
elections are many times lost, although the Union may
hold a majority of signed designations, because of the
counter-campaign conducted by the Employer, as is
illustrated in the instant case Indeed if the Employer
applied the teachings of its other union campaigns to the
instant campaign, it is reasonable to conclude that the
employees voted sometimes in contradiction to their
designations, for Herzog, in the instant campaign,
impressed employees, repeatedly, with the idea that they
had a "right to vote `No' and forget about the card [they]
signed ." It would seem that unless the effectiveness of the
Employer's counter-campaigns is totally discounted,
"Cited with approval . The Colsan Corp. v. N L R B. 347 F.2d 128,
137-138 (C.A.8)
"In drawing the credibility resolutions herein the Trial Examiner is not
unmindful of the Supreme Court's observation in N L R.B v Walton
Manufacturing Company, 369 U S. 404, 408:
For the demeanor of a witness
. may satisfy the tribunal, not only that the witness ' testimony is
not true, but that the truth is the opposite of his story; for the denial
of one , who has a motive to deny, may be uttered with such
hesitation , discomfort, arrogance or defiance, as to give assurance that
he is fabricating, and that , if he is, there is no alternative but to
assume the truth of what he denies. Dyer v MacDougall , 201 F.2d
265, 269.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience as a source for Herzog's good-faith doubt lacks
credibility.
As to the second ground , to credit Herzog ' s belief
would disallow Herzog's experience in the field, for he
must be deemed to have known that many union
campaigns are commenced in secrecy in order to stymie
potential employer reprisal and counter measures. But
here the Respondent had been advised that out of a
complement of about 150 employees , 28 out of 31 or 32 of
the black employees, and 22 out of about 120 white
employees, had registered their membership on the
Union ' s organizing committee by signing their names to a
telegram. With almost 100 percent of the black employees
and almost 20 percent of the white employees (almost 35
percent of all employees) on the Union's organizing
committee , it seems reasonable to conclude that Herzog
must have had an idea that other employees who were not
on the committee had also signed cards (as was the fact),
all of which is significant in considering whether the
Employer had a good-faith doubt.
It is further significant that Herzog's reply letter did
not cite reason for his good-faith doubt, although the
letter was composed by an experienced author with careful
concern, as evidenced by the letter's phrasings drawn
assiduously within the letter of the law. Thus the reasons,
omitted from the letter but later advanced in the hearing
take on the character of afterthoughts rather than
oversight."
A finding of lack of good-faith doubt and the presence
of bad faith is clinched by the Respondent's subsequent
conduct. The Respondent immediately embarked upon an
intensive antiunion campaign which embraced many
individual solicitations, letters, handbills, and captive
audience speeches. Such a concentrated effort to cause
union defection is at odds with the idea that the
Respondent believed that the union movement was
unsubstantial . Moreover , the Respondent's campaign was
keyed to persuading employees to foresake the Union.
"You are perfectly free to vote `No' - no matter how
many cards of other things you've signed.... because you
have signed something, does not mean that you have to
vote for them. . . . you have a right to vote `No' and
forget about the card you signed . . . . as far as the
election is concerned the card doesn't mean anything any
more.... I see no reason why any of these people [card
signers] can 't change their feeling back to the company."
Herzog , commenting upon an employee who had changed
his mind, said, "I'm real glad you changed your mind."
Thus it is clear that the Respondent utilized the time
following its refusal to recognize the Union to induce
employees to forego union affection and repudiate their
designation of the Union as their bargaining agent. To
obtain such end the Respondent, as is set forth above,
engaged in unfair labor practices embracing among other
things the denigrations of the Union, projections of
strikes, the stressing of the futility of union choice, the
prying into the employees' feelings toward the Union,"
""Good- faith doubt would have dictated immediate response stating
candidly the Respondent 's position " N L.R B. v. The Howe Scale Co..
311 F.2d 502, 505 (C.A. 7).
""[S]ystematic interrogation of employees about union activities during
the sensitive initial stages of an organizing campaign and for no justifiable
purpose ... is a type of activity which serves to impress upon employees
their employer's hostility to union organization , and thus tends to restrain
them in the exercise of the rights guaranteed by Section 7 of the Act."
Koch Engineering Company, Inc, 155 NLRB 1272, 1273
threats of plant removal or closure ," assertions that no
contract would be negotiated , grants of benefits,
interference with the free distribution of union handbills,
and strong suggestion that employees deal without the
intervention of the Union ." These unfair labor practices
were not matters to be treated lightly . They were not
minor or borderline violations which had only a minimal
effect upon the Union ' s majority . They were substantial
and were of a kind which must necessarily have had as
their objective the destruction of the Union ' s majority.
The Respondent 's conduct refutes the contention that it in
good faith intended to participate in an election in an
atmosphere free of coercion and clearly evidences an
intent on the Respondent ' s part to delay recognition for
the purpose of dissipating or undermining the Union's
majority status.
"The case law squarely supports the proposition that
when the refusal to bargain emanates from a desire to
gain time to dissipate the majority status of the Union,
the employer ' s refusal clearly violates Sec . 8(a)(5)."
N.L.R.B. v. Comfort, Inc., 365 F.2d 867, 876 (C.A. 8).
The employer' s unilateral grant of retroactive seniority
and its offer through Manager Hornbuckle that it was not
"too late" for employees to deal directly with the
employer is convincing proof that the employer rejected
the principles of collective bargaining.
In the circumstances of this case the following language
"On the subject of whether the plant would close if the Union prevailed,
Herzog testified that employees were told "one has nothing to do with the
other, or we can' t answer that question , or that question is not relevant to
the situation... It could possibly close at anytime .... There is no way
of knowing was usually the answer that was given ." In his speech of
August 21 , 1967, Herzog told employees:
All the talk that no matter what may happen we cannot close our
plant and the talk the union has put out - that [it's] against the law for
a company to close - is not true. A company has the right for good
business reasons , and in good faith to close a plant entirely or in part at
any time.
It's just the same as if we were a farmer, or a grocery store, or a
gasoline station. Ask any of them if they can close . Ask any of the
people who worked in companies that closed right here in Arkansas
But this is nothing to fool with.
In N.L.R B v. Finesilver Mfg Co.. 400 F .2d 644 (C.A. 5), the court
said "As for the statement that a company can close down completely for
any reason at all, we need only look to the Supreme Court decision which
established that proposition for confirmation of the rule that an employer
cannot interfere with organization activities by threatening to close the
plant. [Citations .] Considering the statement in the context of the
antiunion hostility , we believe it constituted an unlawful threat to close the
plant in the event of a union victory."
The Board held in I.T.T. Semi-Conductors , Inc., 165 NLRB No. 98,
that the threat to close a plant if the Union should be designated
bargaining agent is by itself "sufficient to establish that the Respondent
had as its purpose the rejection of the collective-bargaining principle or the
desire to gain time within which to undermine the Union and dissipate its
majority."
"Manager Hornbuckle told the employees in his August 22 speech:
If there are still other improvements or adjustments in working
conditions that you think should be given or made - you as an
individual or any group of your co -workers are free to discuss such
changes with me and be assured they will be given consideration and
attention by me.
Because if any of you are voting for a union because of something we
could work out together or if [you are ] voting for a union because of
something you haven ' t talked to me about, then there is no need for all
this because thank goodness , it still isn 't too late.
The Board opined in Quaker Alloy Casting Company . 135 NLRB 805,
806, "its [the employer 's] directions and suggestions to employees that they
bring their grievances directly to Respondent ' s officials, constituted
violations of Section 8(a)( I)."
HOWARD MANUFACTURING CO., INC.
used by the Board in R. W. Inc., d/b/a K-Mart Foods,
170 NLRB No, 67, is singularly apposite: "As we view
the situation, Respondent, concerned with the possibility
that the Union' s organizing drive might succeed because
of the high level of employee dissatisfaction undertook the
counter offensive described above for the purpose of
weaning employees away from union adherence. Where,
as here, a union has established its majority status and a
Respondent , disclosing a disposition to evade its
obligation to bargain, has engaged in unfair labor
practices which were aimed at destroying that majority
and has deprived the union of a fair opportunity to prove
its representative status in an election , an order to
bargain, upon request, effectuates the policies of the Act
and is plainly appropriate. Accordingly, we shall order
Respondent to bargain, upon request, with the Union in
the unit herein found appropriate." R. W. Inc., d/b/a
K-Mart Foods, 170 NLRB No. 67 . See also Bauman
Chevrolet, Inc., 173 NLRB No. 78; John P. Krystyniak,
Red & White Super Markets, 172 NLRB No. 210.
Since "[c]onduct violative of Section 8(a)(l) is a fortiori
conduct which interferes with the exercise of a free and
untrammeled choice in an election" (Dal-Tex Optical
Company, Inc., 137 NLRB 1782, 1789), the
representation election which was conducted on August
27, 1967, must be set aside and held for naught.
The Employer's misconduct detailed above destroyed
the atmosphere in which the Respondent's employees
could register a free choice for a bargaining representative
and was calculated to induce employees to forego union
adherence and cast their ballots against the Union. Thus it
is patent that the Respondent's failure to accord
recognition to the Union was not inspired by a good-faith
doubt but was advanced in bad faith.
The Trial Examiner is persuaded that the Respondent
had completely rejected the collective-bargaining principle
and that it refused to recognize the Union in order to
utilize additional time in which to profit by its unfair
labor practices and to undermine the Union, further
dissipate its majority and deter it from gaining additional
strength . It is "idle to speak of good faith in an
atmosphere of unlawfulness." Priced-Less Discount Foods,
Inc., d/b/a Payless, 157 NLRB 1143, 1147. . the
Board may properly decline to consider good faith as a
defense to a section 8(a)(5) charge when the employer has
exercised manifest bad faith in its other responses to the
same attempt at unionization ." N.L.R.B. v. Primrose
Super Market of Salem , Inc., 353 F.2d 675, 676 (C.A. I).
In view of the Respondent's unfair labor practices as
found above, and its refusal to recognize and bargain with
the Union motivated not by good-faith doubt of the
Union's majority but by a rejection of the
collective- bargaining principle and by a desire to gain time
in which to further destroy the Union's majority status,
the Respondent violated Section 8(a)(5) and (1) of the
Act. Webb Tractor and Equipment Company, 167 NLRB
No. 46; Hammond & Irving, Incorporated, 154 NLRB
1071; Fabricators, Incorporated, 168 NLRB No. 21.69
"The General Counsel urges that "in the circumstances of this case in
order not to permit the Respondent to benefit from its unlawful conduct
and because a fair election has been rendered impossible , the facts of this
case clearly indicate that a bargaining order under Sec. 8 (axl) of the Act
is indeed appropriate ." The Trial Examiner finds merit in the General
Counsel 's contention.
Were the Trial Examiner to have found that because the Union 's request
to bargain was made prior to the 10 (b) period a 8 (a)(5) finding was barred,
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
239
The activities of the Respondent set forth in section II,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE RECOMMENDED REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act the Trial Examiner recommends
that it cease and desist therefrom and upon request
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate unit
and, if an understanding is reached, embody such
understanding in a signed agreement.
As noted above the Trial Examiner received no brief
from the Union. Such circumstance raises doubts as to
whether the Union continues interest in this matter and
will avail itself of the bargaining order herein
recommended. Moreover, it is not contemplated in the
Act that the government shall spin its wheels in
accommodating the policies of the Act. Thus the Trial
Examiner recommends that the bargaining order herein
recommended be suspended and the Respondent released
from the obligations thereof 90 days after the date of the
posting of the notice herein recommended, unless the
Union within such period of time has presented proof
satisfactory to the Regional Director, Region 26, that the
Union has been designated as the collective-bargaining
representative by at least 30 percent of the employees
employed in the unit herein found appropriate on the date
the Notice recommended herein is posted.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By the commission of unfair labor practices the
We would , nevertheless, in order to remedy the unfair labor practices herein
found , recommend a 8(aX5 ) order. Even where a request to bargain has
not been made and it is found that the Union represents a majority of the
employees in an appropriate unit, as here , a bargaining order may be
appropriate to remedy Section 8(axl) violations See N.L.R.B v. Joe
Caldarera, et al. . d/b/a Falstaff Distributing Company, 209 F.2d 265, 268
(C.A. 8). See also Heck's Inc., 172 NLRB No. 255
The Union possessed a majority status and the Respondent engaged in
unlawful conduct which prevented a fair election free of coercion. The
Respondent thus evidenced an intent to delay recognition for the purpose
of dissipating and undermining the Union' s majority status and it
employed its unfair labor practices for such purpose . Thus a bargaining
order is necessary as a proper remedy to preserve the status quo ante, and
to prevent Respondent from benefiting from its own unlawful conduct in
liolation of Sec. 8(aXt) of the Act. See Oleson 's Foods No. 4, Inc., 167
NLRB No. 69; Priced-Less Discount Foods, Inc., d/bla Payless, supra.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent unlawfully interfered with the representation
election conducted on August 25, 1967.
5. All employees employed by Howard Manufacturing
Company, Inc., at its Nashville, Arkansas, plant,
including all production and maintenance employees,
excluding all office and clerical employees , guards and
supervisors as defined in the Act constitute an appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
6. By refusing on and since July 3, 1967, and thereafter,
to bargain with the Union as the exclusive bargaining
agent of the employees in the appropriate unit, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(1) and (5) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
APPENDIX A
HERE IS YOUR PAYCHECK
The union doesn ' t have their hands
on it yet ! Be sure they never do -
VOTE NO!
STOP! LOOK! LISTEN!
This is your last paycheck before the election
Take a good look at it there are no deductions for
union dues , union fines or union assessments
Keep it that way don ' t let the union gamble with
your money with your future
VOTE NO!
APPENDIX B
Sure Son , it's a good business . It's Big Business!
You can figure it out for yourself. You tap each guy
and gal for ? a month for dues . This doesn't count
initiation fees , fines, and other assessments. The dues
alone bring in thousands and thousands and thousands
of dollars a year . And the best part of it is the union
doesn ' t pay any taxes . The guy who pays the dues pays
Uncle Sam.
We leave some in the local treasury to make it look
good and to take care of the guys fronting for us but
we don ' t account to them for our expenses . You see,
we're called a non -profit making organization so Mr
Whiskers doesn ' t check our books too closely.
How do you separate them from their money? First,
get them to hate the Boss . No matter how much good
he tries to do, cutting him, rip him , lie about him, call
him names . Remember , if they like the boss they don't
like you.
Then all you got to do is promise more than they're
getting - and keep on promising . Promise anything!
You don't have to deliver - let the company worry
about that!
If the company won't deliver on your promise, take
'em out on strike! The workers (I love 'em ) will soon
be so broke they'll go back to work for whatever the
company will give - and you still got them hooked for
dues.
Yes Indeedy , Son, it sure is a fine, patriotic,
honorable business! Good money, too!!
PUT AND TAKE
APPENDIX C
ACW BANK
24 Hr Collections
No Interest
No Balance
No Earnings
No Withdrawals
We arrange your payments for you!! (If you can't
make regular visits ... we come to you!)
HOWARD
Employees Take Wages Home!!
Not To Union Headquarters!!
[Only the text of the handbills has been reproduced as
Appendixes A, B, and C.]