Ideal Baking Co. of Tennessee, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 546 (N.L.R.B. 1963)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, regardless of the Union's actual majority status, the evidence upon which
Respondent relied plainly furnished reasonable grounds for doubting the Union's
majority; and concurrently with giving notice of termination of the contract, it initi-
ated a representation proceeding in which the issue could be determined by the Board.
I therefore conclude and find that the Respondent was entitled to assert its doubt
of majority in refusing to furnish the information requested by the Union on Novem-
ber 12, and in refusing to meet and bargain for a new contract as requested on
December 18. Because of those conclusions I do not reach the argument of the
parties concerning the proper type of remedial order to be entered assuming that
unfair labor practices were found which did not contribute to the Union's loss of
majority. Cf. Midwestern Instruments, Inc., 133 NLRB 1132; Mission Manufac-
turing Company, 128 NLRB 275. However, it is to be noted that the Union's loss
of its following occurred before the conduct with which Respondent is charged.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) of the
Act.
2 The Union is a labor organization within the meaning of Section 2 ( 5) of the
Act.
3. By informing an employee that a layoff would be necessary if the electricians
persisted in their efforts to obtain a wage increase , Respondent engaged in interfer-
ence, restraint , and coercion within the meaning of Section 8 (a) (1) .
4. Except as stated in conclusion of law No. 3, supra, Respondent has not en-
gaged in unfair labor practices as alleged in the complaint.
RECOMMENDATION
As I find that the single isolated violation of Section 8(a)(1) was too minor in
character to warrant the issuance of a remedial order,? I recommend that the com-
plaint be dismissed in its entirety.
7 Cf. Middletown Manufacturing Company, Inc, 141 NLRB 234.
Ideal Baking Company of Tennessee , Inc. and American Bakery
and Confectionery Workers International Union , AFL-CIO
Ideal Baking Company of Tennessee , Inc. and American Bakery
and Confectionery Workers International Union, AFL-CIO.
Cases Nos. 26-CA-1167 and 26-RC-1663. June 28, 1963
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On April 20, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had not engaged in certain unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed. He recommended, however, as more fully set
forth in the attached Intermediate Report, that the representation
election held on October 18, 1961,' in Case No. 26-RC-1663, be set
aside and a new election held. Thereafter, the General Counsel,
American Bakery and Confectionery Workers International Union,
1 Unless otherwise indicated, all events described herein occurred in 1961.
143 NLRB No. 14.
IDEAL BAKING COMPANY OF TENNESSEE, INC. 547
AFL-CIO, herein called the Union, and the Respondent, filed excep-
tions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent herewith.
After a hearing on a representation petition filed by the Union, the
Regional Director issued a Direction of Election on September 25,
1961. Thereafter, the election was held among the Respondent's em-
ployees at its Murfreesboro, Tennessee, plant, on October 18, 1961.
The Union lost the election by a vote of 29 to 28. The issues now to
be decided in this proceeding are whether or not certain preelection
conduct of the Respondent was violative of Section 8(a) (1) of the
Act, and whether or not this same conduct exceeded the bounds of
permissible campaign propaganda so as to warrant setting aside the
election. For the reasons hereinafter set forth, we find that Re-
spondent's conduct did violate Section 8(a) (1) of the Act, and that it
did exceed the bounds of permissible campaign propaganda.
In its campaign to defeat the Union, the Respondent emphasized
that if the Union won the election and made economic demands which
the Respondent would not meet, the Union's sole course would be
to call a strike, in which event the Respondent could permanently re-
place the strikers. While the Respondent did not state specifically
that it would not bargain with the Union should the Union win the
election, an analysis of Respondent's entire antiunion campaign re-
veals an implicit warning that in dealing with the Union the Respond-
ent would so conduct the negotiations that a strike would result. Thus,
there was but one theme : the inevitability of a strike if the employees
selected the Union as their bargaining representative, and the dire
consequences of such a strike, namely, ensuing violence and the loss
of jobs by the strikers.' We shall illustrate.
On October 5 2 the Respondent, in a letter addressed to its employees
and their families, appealed to the employees to vote "No" in the
2 , Contrary to the interpretation by our dissenting colleagues , it is clear that the
Respondent 's campaign in this respect was not in response to union literature . That the
opposite is the case is apparent from the portions of the Union 's statements quoted in
the dissenting opinion at footnote 10, which quotations reveal on their face that the
Union's comments were directed to counteracting the Respondent ' s thesis that selection
of the Union would necessarily result in a strike . The Union 's September 22 leaflet was
undoubtedly in response to a company communication of September 20.
3 Prior to September 25, the Respondent had mailed to its employees and their families
three pieces of literature generally in the same vein as those described above. However,
as the Decision and Direction of Election herein issued on September 25, and the election
was held on October 18, and as the distribution of these letters was not specifically
alleged to be violative of Section 8(a) (1) of the Act, we will consider only those letteitF
and materials distributed after September 25. F. W. Woolworth Company , 109 NLRB
1446; of. The Ideal Electric and Manufacturing Company, 134 NLRB 1275.
717-672-64-vol. 143-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming election and warned of the Union's propensity to exact ini-
tiation fees, dues, and assessments. Attached to this letter was a
large red and white poster asserting, "Union promises won't fill your
grocery basket, but union strikes, picket lines, dues, fees, assessments
will sure keep it EMPTY." The poster also warned, "Protect your
security VOTE NO UNION."
Again, on October 7, in another letter to its employees and their
families, the Respondent stated that the Union can only promise
employment benefits but that actually all benefits have come, and will
continue to come, from the Company. The Respondent thereafter
indicated that if the Company refused to fulfill the promises of the
Union, the only thing the Union could do would be "to make YOU
go out on strike-that is, YOU go without work, YOU go without
pay, and YOU might even lose your job altogether." In such event,
according to the Respondent, the employees would not get paid, would
not get Tennessee unemployment compensation, and could lose their
jobs.
In addition to the foregoing letter, an accompanying bulletin cap-
tioned "IT CAN HAPPEN TO YOU" further illustrated what could
happen at the Respondent's plant should the Union win the forthcom-
ing election. Thus, the bulletin related that Murfreesboro Pure Milk
Company, a local concern, had operated for a number of years with no
strikes, no picket line, and no violence, but "Then in August 1960 some
of the employees of the dairy made the mistake of voting for a big-
promising union. In less than 3 months after the election the union
pulled a STRIKE !" Subsequently, "There were many threats-
then came the damage to cars and property-then came the blast of a
shotgun into the home of a worker!" Thereafter, the Respondent
relates, the picketing continued for several months, but the milk com-
pany continued to operate, hired new employees, and "EVERY
STRIKER LOST HIS JOB BY BEING PERMANENTLY RE-
PLACED ! No contract `vas ever signed, no union promise was ful-
filled-those who let themselves be led by the union gained nothing
and lost everything."
On October 11, the Respondent sent still another communication to
its employees and their families continuing to stress the theme that a
strike was inevitable and the employees could lose their jobs should
the Union win the election. Thus, the Respondent stated that if the
Union won the election, the Company would not automatically have
to sign a union contract, and that should the Union call a strike,
"The law is that the company can hire new employees to replace
economic strikers. This means that there may be no jobs for the
strikers after the strike is over." The communication concluded with
the following : "THE UNION DID NOT GIVE YOU YOUR JOB.
THE UNION HAS NEVER PAID YOUR WAGES AND NEVER
IDEAL BAKING COMPANY OF TENNESSEE, INC. 549
WILL." In addition, the Respondent also enclosed a large red and
white poster with large letters proclaiming "Good News-Everybody
is saying the employees don't want the Union ! Let's All Vote To
Protect Our Future!" It then asked the employees to vote "NO."
Finally, on October 14, as a climax to its mailing campaign directed
at its employees and their families, the Respondent, by letter, warned,
"UNION and STRIKES go together like fLre and smoke. When you
vote in this Labor Board election, we feel that the main question you
will be deciding is the question of whether we will have SECURE
JOBS or PICKET LINES for your future." The letter continued,
"... you may wake up too late and find the union has led you into a
big strike and a lot of trouble and has talked you right out of your
job." The letter concluded with this warning, "REMEMBER-this
Labor Board election is your last chance to prevent trouble by this
union. No matter what you have said or done in the past, you can
still VOTE and VOTE NO UNION IN THIS ELECTION !" The
Respondent attached to this letter a red on white poster depicting
some strikers throwing down their picket signs and abandoning their
strike. They are confronted with a "No Vacancies" sign on the plant
wall and they exclaim, "ZING-it's too late !" Finally, the poster
exclaims, "Stop this-VOTE NO !"
In addition to mailing the above-described material to the homes of
its employees, Respondent pursued a like antiunion campaign within
the plant. Here, again, the Respondent placed heavy stress both on
the dangers of a strike if the employees selected the Union as their
bargaining representative and its right to replace all strikers per-
manently. Thus, on October 13 and 15, Plant Manager Priester read
identical speeches to the employees at work in the plant. In his
speech, Priester replied, in part, to some of the Union's preelection
campaign material, and again stressed the matter of employee job
security and how much their job security would be jeopardized by a
Union-fomented strike. In this regard, Priester stated :
Let me remind you not to be satisfied with a lot of fast talk-
promises that cannot be fulfilled. The only thing that the union
can definitely promise and produce is a strike ... loss of work,
loss of pay-loss of job.
At another point, he warned :
I say do as 57,000,000 other workers in the U.S.A. have done.
Do not let these union bosses get their hands into your pockets.
Do not let them get control of your job. Do not let them pull
you out on strike as they have done to millions of workers year
after year. Remember there are 3 NON UNION workers for
every union worker in America. [Emphasis supplied.]
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continuing, Priester stated :
Let me make this clear-A STRIKE WILL NOT affect OUR
profits-because this bakery will continue to operate-everyday,
everyday-everyday-The Same As M'Boro [Murfreesboro]
Pure Milk did. The strikers were replaced-have not been re-
hired and I understand that some of those people are still out
of jobs nearly one year later. That wild talker [union organizer]
was talking Big Pay and Job Security to those people.
Along the same vein, he continued :
Let me tell you something about the Anniston situation .. .
This same union came in there and fast talked those employees
into signing up. After a strike Mr. Lloyd signed a contract then
soon afterward he locked the place up and every employee was
out of a job.
He concluded his speech with this warning :
In closing let me remind you-this is your fight-the only way
we will win is by the Company and you sticking together. These
union bakeries that have Mr. Merle Smith's Union would like
to see us hurt. They would like to see us closed by a strike. Just
remember-you and I are the ones that will suffer most because
of Union strikes and trouble. VOTE NO !
In addition to the foregoing remarks to the employees, about 3 weeks
prior to the election, a large mirror was placed near the timeclock
used by Respondent's employees. A legend was placed above the
mirror. It read, "Think. You are looking at the picture of an
employee." On October 4, Respondent added an additional slogan
to the foregoing legend. It warned, "Whose job can be destroyed
by union strikes. Vote No." This slogan remained posted until
October 6 .1
It is clear that by means of the foregoing letters and other printed
materials sent to the employees and their families at their homes,
and by the speeches and slogans at their place of work, Respondent
created the impression of the inevitability of a strike if the employees
selected the Union as their bargaining agent, and warned of the dire
"There were five other slogans posted between September 25 and the date of the elec-
tion These slogans were as follows:
Slogan 2-"Who has never been paid benefits by the union and never will. Vote
o.
Slogan 3-"Whose job, pay and benefits result from team work with Ideal Bakery.
Vote No."
Slogan 4-"Who is too intelligent to be fooled by wild promises and slick union
sales 'talk. Vote No."
Slogan 5-"Who works in the plant that has made more progress in the past 18
months than it ever made in twice the time before . Vote No."
Slogan 6-"Whose personal progress only can be assured by the progress of Ideal.
Vote No."
IDEAL BAKING COMPANY OF TENNESSEE, INC. 551
consequences of such strike, both as to job tenure and ensuing violence.
But, if by chance this message still had not penetrated the conscious-
ness of its employees, Respondent made one final effort.
At a Company-sponsored dinner held for employees and their fam-
ilies the night before the election,5 Plant Manager Priester introduced
R. P. Cooper, principal owner of the plant. Cooper spoke for 3 to 5
minutes reviewing the progress the bakery had enjoyed during the
previous 18 months. He alluded to the fact that the employees had
received three wage increases during that same period without union
representation despite the fact that the bakery was continuing to
operate at a loss. While not explicitly promising, Cooper plainly
implied that additional future wage increases would be given. He
also referred to his bakery at Anniston, Alabama, as being the only
one of his bakeries in which the employees were represented by a
union, but stated that there the plant had been organized when he
bought it. He then added that at the time he bought the Anniston
bakery, the wages were substandard even though the employees had
been represented by a union, and he claimed that the improvements
there were attributable to good management rather than to the union.
Cooper concluded his brief talk by reminding the employees that
they were free to vote as they wished but he hoped they were "with us."
After Cooper's speech, Priester notified those assembled that they
were about to view a motion picture in which they would be interested
because "some shots of it were about people in nearby Davidson
County." Thereupon, the film entitled "A Question of Law and
Order" was shown.6
Briefly, the film shows various scenes of mass picketing and attend-
ing violence, including physical beating of various persons attempt-
ing to enter a plant being picketed, stoning and overturning of cars,
and other damage. At one point, the scene shows a person lying,
apparently unconscious, in a street. The film closes with the narra-
tor's plea for law enforcement in cases involving labor violence, and
with additional scenes of violence, presumably in the course of labor
disputes. Plant Manager Priester then dismissed the assemblage
with the comment that they had seen the film, and that he hoped
nothing like that would ever happen in Murfreesboro. The election
was held the following day.
As noted at the outset, and as illustrated above, Respondent's en-
tire preelection campaign contained but one message to the employees,
namely, the inevitability of a strike, possible violence, and resultant
5A separate dinner was held for the Negro employees on October 16. The General
Counsel amended the complaint so as to strike the allegations pertaining to this October 16
gathering. It appears, however, that the two social gatherings were substantially identical
6 while we obviously join our dissenting colleagues in deprecating lawlessness, we
nonetheless cannot countenance the misuse of information covering either lawful or un-
lawful conduct.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job loss should the employees select the Union as their bargaining
agent. Moreover, it does not appear to us, as found by the Trial Ex-
aminer, that the Respondent was merely informing its employees
about the legal consequences of economic strikes. Indeed, as illus-
trated above, Plant Manager Priester seldom distinguished economic
strikes from other types of strikes in his mail campaign to the em-
ployees, and he completely ignored such distinction in the above-
described slogan posted in the plant, and in his several speeches to
the assembled employees when he said:
The only thing that the union can definitely promise and pro-
duce is a strike, loss of work, loss of pay, loss of job.
Let me make this clear-A STRIKE WILL NOT AFFECT
OUR profits-because this bakery will continue to operate-
everyday, everyday-everyday-The same as M'BORO [Mur-
freesboro] PURE MILK did. The strikers were replaced-have
not been rehired and I understand that some of those people are
still out of jobs nearly one year later.
Indeed, a searching review of this record and careful scrutiny of
the Respondent's entire preelection campaign does not reveal one in-
timation to its employees and their families that the selection of a
collective-bargaining representative need not result in a strike, vio-
lence, trouble, or loss of jobs, but could result in a collective-bargaining
agreement.
This unremitting effort on the part of the Respondent to impress
upon the employees the dangers inherent in their selection of the
Union as their bargaining agent, particularly the danger of job loss,
followed up by the baleful representation of the prospect of violence,
physical injury, and property damage as the ordinary result of voting
for the Union in the election, was not an attempt to influence the em-
ployees by reason, but was an appeal to fear. Indeed, Respondent's
entire preelection campaign was intimidatory in nature, and intended
to convey the threat of job loss and physical violence should be the
Union win the election. Accordingly, we conclude that Respondent's
entire preelection, antiunion campaign, when considered as a whole,'
was intended to interfere with, restrain, and coerce its employees in
the exercise of their rights guaranteed by Section 7, and was, accord-
ingly, violative of Section 8(a) (1) of the Act.
The conduct which we have found violative of Section 8 (a) (1)
also has interfered with the exercise of a free and untrammeled choice
7 Our dissenting colleagues complain at one point that we are discussing statements in
isolation rather than considering them in context, and later that we are considering con-
text rather than isolated statements . In any event , the whole can, in some circumstances,
be at least different from if not greater than its parts . For example , this Respondent, in
its bakery , utilizes basic ingredients which, by combining them in different ways, may
produce a variety of baked goods , and even a slight deviation from the prescribed manner
of mixing those Ingredients may result in an unacceptable product. So it is with words
and speech.
IDEAL BAKING COMPANY OF TENNESSEE, INC. 553
in the election involved here. See Dal-Tex Optical Company, Inc.,
137 NLRB 1782. Accordingly, we find that the Respondent's con-
duct deprived the employees of their right to express a free choice
in the election. We shall, therefore, set aside the election of October
18, 1961.
But assuming, arguendo, that Respondent's above-described conduct
is not violative of Section 8(a) (1) of the Act, we would nevertheless
set the representation election aside. Clearly, Respondent's entire
preelection campaign generated an atmosphere of fear of physical
violence, trouble, and economic loss which completely polluted the free
atmosphere which is indispensable to a valid election.
REMEDY
Having found that the Respondent engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Ideal Baking
Company of Tennessee, Inc., Murfreesboro, Tennessee, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Threatening employees with adverse consequences, including
job loss, in the event they select the Union as their collective-
bargaining agent, or, in any like or similar manner, interfering with,
restraining, or coercing employees in the exercise of their right to
self-organization, to form, join, or assist the Union herein or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or 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) Post at its plant in Murfreesboro, Tennessee, copies of the at-
tached notice marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the Twenty-sixth Region,
shall, after being duly • signed by the Respondent, be posted by the
Respondent immediately upon receipt thereof, and be maintained by
8 In 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."
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it for 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the election in Case No. 26-RC-1663,
held October 18, 1961, be, and it hereby is, set aside, and that Case
No. 26-RC-1663 be, and it hereby is, remanded to the Regional Direc-
tor for the Twenty-sixth Region for the purpose of conducting a new
election at such time as he deems that circumstances permit the free
choice of a bargaining representative.'
MEMBERS RODGERS and LEEDOM, dissenting :
Our colleagues are finding that the Respondent's preelection cam-
paign, when taken as a whole, amounted to a threat of job insecurity
in violation of Section 8 (a) (1). We would find, as did the Trial
Examiner, that the Respondent's campaign statements and propa-
ganda are protected by Section 8 (c) of the Act.
An examination of the record in its entirety shows that the Re-
spondent sought to accomplish three legitimate objectives in its state-
ments and communications to employees: (1) to clarify and explain
the respective legal rights and positions of the Respondent and its
employees vis-a-vis the Union; (2) to answer the Union's campaign
propaganda; 10 and (3) to indicate the possible disadvantages of
union organization.
9 A new election shall be conducted among employees in the unit found appropriate in
the Decision and Direction of Election in this case issued September 25, 1961, who are
employed during the payroll period immediately preceding the date of issuance of the
new notice of election
In the event the Respondent fails or refuses to comply with the terms of the Order in
Case No. 26-'CA-1167, the Regional Director is also authorized to conduct the new elec-
tion directed herein upon the written request of the Union. Associated Grocers of Port
Arthur, Inc, 134 NLRB 468
10 Our colleagues have failed to consider adequately the critical fact that much of the
Respondent's preelection discussion 'of strikes was for the purpose of answering asser-
tions put forth by the Union during its campaign . We shall illustrate.
In late August or early September 1961, the Union mailed to the homes of the Re-
spondent's employees copies of its publication , ABC News, dated August 1961. This edi-
tion made reference to at least five situations wherein the Union was involved in strikes
or near-strike situations with various employers . It thus appears that the Union Injected
the matter of labor disputes and strikes into its organizational effort at an early date.
On or about September 22, the Union also distributed to all employees by mail a cover-
ing leaflet and booklet entitled, "LOOK OUT BELOW." The following excerpts relating
to strike action appear in this booklet:
Furthermore , he [the employer ] has a great fear that you might lose your in-
dependence . . . become a slave to some labor "boss" who can order you out on
strike at any moment , even against your will !
Perhaps you 'adn't realized it, as you and your fellow workers have been meeting
and talking about the union , that the minute you became a union member you'll change
into a strike-happy irresponsible and violent individual But the loveletters will edu-
IDEAL BAKING COMPANY OF TENNESSEE, INC. 555
By means of a fragmentary analysis of the Respondent's preelection
communications to its employees, our colleagues have found Respond-
ent's statements to be tantamount to an unlawful threat of job loss
resulting from possible strikes. In doing so, they arbitrarily select
certain portions from Respondent's campaign material and fail to
consider the entire context of the same material, and the preelection
activities of both parties in their entirety. For example, our col-
leagues characterize the Respondent's letter dated October 11 as "con-
tinuing to stress the theme that a strike was inevitable and the em-
ployees could lose their jobs should the Union win the election."
However, an inspection of the entire text of the letter shows that the
"strike-loss of jobs" subject was only a minor topic in the letter. For
the letter informed the employees that: (1) they did not have to join
the Union to continue their employment; (2) even if the employees
had signed a union card, attended meetings, and paid union dues, they
could still vote against the Union ; (3) in the event of a strike, the
employees would not receive any wages and would also be ineligible
for unemployment compensation; and (4) it was of the utmost im-
portance for everyone to vote in the election even if they were not
union partisans. The letter also explained the mechanics of the bal-
loting. A balanced reading of this letter as well as the Respondent's
other preelection communications convinces us that the Respondent
was merely exercising its protected right to answer the Union's propa-
ganda and to inform the employees that unionization might entail
disadvantages as well as advantages."
As for the motion picture shown to the employees, which our col-
leagues also find to be an objectionable component of the Respond-
ent's preelection campaign, we fail to share their view that its presen-
tation in any way served to threaten the employees or otherwise
polluted the atmosphere surrounding the election.12
cate you on that score. They'll point out this tendency to strikes and violence that
you hadn't noticed in your fellow workers and friends before.
The letters , of course , will forget to inform you that there are come [ sic] 125,000
union contracts governing labor-management relations and that 97% of them are
signed after peaceful negotiation They'll forget to mention that more workers miss
work because of colds than because of strikes, and that strikes have to be authorized
by the workers themselves before they can be conducted.
In early October, the Union distributed a propaganda piece titled , "Yes the boss is
worried . . but NOT ABOUT YOU." Wherein the following excerpt appears.
Right now the only reason they are fighting your attempts to organize is-not be-
cause YOU might suffer because of a strike (altho that too would cut into their
profits), but simply because a gain in benefits for you would cut into their profits . . .
and that they will have to deal with you as an American citizen-worker and not as
a slave with whom they can deal as Lord and Master to their own selfish advantage.
Considering the tenor of this union propaganda , the Respondent 's efforts to apprise the
employees of its view of strikes and labor disputes appear to us to have been reasonable
in the circumstances
" See Arch Beverage Corporation , 140 NLRB 1385; Decorated Products , Inc., 140
NLRB 13'83
'2 See our dissents in Carl T Mason Co., Inc, 142 NLRB 480; Plochman and
Harrison-Cherry Lane Foods . Inc, 140 NLRB 130 The film herein , "A Question of Law
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our colleagues have failed to find that either the Respondent's
letters, slogans, speeches, or motion picture, when considered sep-
arately, is independently violative of Section 8(a) (1). Instead, they
find that the total or combined effect of Respondent's various acts con-
stitutes unlawful conduct. We cannot perceive the logic of our col-
leagues' position. If each separate part of the Respondent's conduct
is not unlawful, what renders the entire campaign unlawful? Put
another way, we do not believe that herein the whole can be greater
than the sum of its parts.
It is clear that the Respondent had a right to oppose the union
organization of its employees." In so doing, the Respondent could
properly respond to the Union's propaganda and thus inform its em-
ployees concerning the disadvantages of union representation. In
our view, the Respondent exercised that right in a lawful manner well
within the bounds of the "free speech" guaranty of the first
amendment.14
For the foregoing reasons, we would find that the Respondent's
statements and propaganda here in issue do not violate Section 8(a)
(1) of the Act. Further, we would also find that the Respondent
did not engage in impermissible conduct so as to warrant setting the
election aside.
and Order," consists of a series of newsreel clips which incontrovertibly depict actual
instances of violence involved in labor disputes . Unlike the motion picture in the above-
cited cases, it is not a scripted and acted production In addition , the theme of the
movie is to deprecate this form of lawlessness, an objective which all decent citizens
should applaud
13 See Thomas v. Collins, 323 U S. 516, 532.
14 See Member Rodgers' dissent Yn Oak Manufacturing Company . 141 NLRB 1323
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 threaten our employees with adverse consequences,
including job loss, in the event they select the American Bakery
and Confectionery Workers International Union, AFL-CIO, or
any other union as their collective-bargaining agent.
WE WILL NOT in any like or similar manner interfere with, re-
strain, or coerce employees in the exercise of their right to self-
organization, to join or assist the above-named 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 and other mutual aid
or protection or to refrain from any and all such activities.
IDEAL BAKING COMPANY OF TENNESSEE, INC. 557
All our employees are free to become or remain members of the
above-named or any other labor organization, or to refrain from such
membership.
IDEAL BAKING COMPANY OF TENNESSEE, INC.,
Employer.
Dated-- -------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered , defaced, or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office, 714 Falls Building , 22 North Front Street , Memphis , Tennes-
see, 38103 , Telephone No. Jackson 7-5451, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT, RECOMMENDED ORDER, AND
RECOMMENDATIONS WITH RESPECT TO OBJECTIONS
STATEMENT OF THE CASE
These proceedings arise out of the efforts of the Union (American Bakery and
Confectionery Workers International Union, AFL-CIO) to organize the employees
of Respondent's bakery at Murfreesboro, Tennessee. In the representation case,
after a hearing on a petition by the Union, the Regional Director on September 25,
1961, directed an election which was held October 18, 1961, and which the Union
lost by a vote of 29 to 28. Thereupon the Union filed objections alleging that cer-
tain conduct of the Respondent had prevented the holding of a fair election. All
but one of these objections (that relating to alleged interrogation of employees)
was overruled on December 8, 1961, by the Regional Director, who recommended
a hearing as to the alleged interrogation. The Union filed exceptions to the report
of the Regional Director, and the Board on January 10, 1962, directed that the
scope of the proposed hearing be expanded to include certain other objections
to the election, namely those alleging that the Employer threatened employees that
if the Union won the election a strike would result and the employees would lose
their jobs, and that the Employer disseminated oral, written, and graphic propa-
ganda prejudicial to a free election, including the posting of an intimidatory notice
at the timeclock, and the showing of a film "prepared for the purpose of inflaming
the passions and arousing the prejudices of the employees."
Meanwhile, the Union filed an unfair labor practice charge on October 26, 1961,
alleging violations of Section 8(a) (1) of the Act, and on December 8, 1961, a com-
plaint issued alleging that the Respondent by interrogating its employees concern-
ing union membership and activities and by granting certain recreational benefits
had violated Section 8(a)(1) of the Act. On January 12, 1962, the Regional Di-
rector issued an order consolidating the representation and unfair labor practice
cases.
On January 31, 1962, after the Board directed a hearing on the objections, the
General Counsel issued an amended complaint omitting reference to the recrea-
tional benefits but adding allegations that Respondent in violation of Section 8(a)
(1) posted an intimidatory notice at its timeclock , showed its employees motion
picture films of strike violence, stating that they could expect similar violence
if they voted for the Union, and told the employees that if the Union won the elec-
tion a strike could result and the employees could lose their jobs.'
Respondent moved to dismiss the new allegations in the amended complaint on
the ground that the conduct complained of was not violative of the Act. The
motion was taken under advisement and is disposed of herein . Respondent also
moved for a bill of particulars which was in part supplied by General Counsel, and
1 Technically the amended complaint omitted the allegation that the interrogation (para-
graph 7 of the original complaint) violated the Act, but this was apparently a mere over-
sight as all parties treated the case as if the allegations of that paragraph were referred
to in the paragraph alleging violations
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which was in other respects denied. Respondent also filed an answer to the com-
plaint and an answer to the amended complaint, denying the alleged misconduct.
At the hearing the complaint was further amended, over Respondent's objection,
to allege further threats, and at the conclusion of the General Counsel's case it was
again amended to omit certain allegations as to which no proof was adduced.
The consolidated proceeding was heard before Trial Examiner Frederick U.
Reel at Murfreesboro, Tennessee, on February 13 and 14, 1962, with all parties
represented, and thereafter on April 2, 1962, all parties filed briefs which have been
duly considered.
Upon the entire record 2 and my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that Respondent, a Florida corporation, op-
erates a bakery at Murfreesboro, Tennessee, where it annually receives goods valued
in excess of $50,000 directly from points outside Tennessee and ships products
valued in excess of $50,000 directly to points outside that State. The pleadings
establish and I find that Respondent is engaged in commerce within the meaning
of the Act, and that the Union is a labor organization within the meaning of
the Act.
II. THE CONDUCT PRECEDING THE ELECTION
A. Alleged individual interrogation and threats
According to employee Carlos Scantland , on two occasions preceding the elec-
tion Plant Superintendent I. D Keen interrogated him concerning the forthcoming
balloting. On the first of these occasions , 2 weeks before the election, Keen asked
him how he had decided and added that he had to decide one way or the other. On
the second occasion , 4 or 5 days before the election , Keen repeated his query, and
Scantland replied that he was satisfied with the way things were. Keen flatly denied
that the conversations to which Scantland testified ever occurred Several com-
pany supervisors, including Plant Manager Joe Priester, testified that Priester had
specifically instructed the supervisors not to interrogate the employees as to their
union views . Although the credibility issue as between Scantland and Keen is ex-
tremely close, I credit the testimony of Keen, and find that the alleged interroga-
tion did not occur.
According to former employee William Cantrell, when his supervisor, Earl West,
invited Cantrell to a dinner given by the Employer on the eve of the election,
Cantrell demurred, whereupon West told him that employees who did not attend
would thereby signify their support of the Union and would be first in line for
layoff. West's version of the conversation was that Cantrell on receiving the invita-
tion inquired whether a meal would be served, and on being answered in the affirma-
tive, stated that he would attend. Based on my observation of the witnesses, I
credit West's version of the event.
According to employee Donald Washer, Distribution Supervisor John Estes came
to Washer's house on a Saturday 2 weeks before the election and told Washer that
the Company could not and would not pay union wages, that if the Union won
the election a strike would probably result, and the employees would be replaced.
Washer also testified that some days later Estes asked Washer to give him any
written material Washer had received from the Union, that Washer had none at
the time, and that Estes asked him to keep Estes' reaiiest "between us." Estes
denied the remarks and the request for literature attributed to him by Washer,
except that he admitted telling Washer that if the Union struck over wage demands,
the men could be replaced. Based on my observation of the witnesses, I credit
Estes.
The record contains some evidence of statements made by management representa-
tives to employees at their homes in late August or early September 1961, before
the direction of election, informing the employees that they could be replaced if
they went on strike. These statements are not embraced within the allegations of
the complaint, and in view of their timing cannot be considered in determining
whether to set the election aside. F. W. Woolworth Company, 109 NLRB 1446; cf.
Ideal Electric and Manufacturing Company, 134 NLRB 1275, and inapplicable to
cases then pending.
2 Respondent's moition, filed with its brief, to correct the record Is hereby granted and
the record is corrected accordingly. The record is further corrected to change the word
"substantial" at page 395, lines 15-16, to "Insubstantial"
IDEAL BAKING COMPANY OF TENNESSEE, INC. 559
B. Alleged interference, restraint, or coercion of the employees as a group
1. The slogans at the timeclock
Respondent has long had the practice of posting exhortatory slogans next to the
timeclock. During the 3 weeks preceding the election, these slogans dealt with the
Union's efforts to organize. In addition, beginning about 3 weeks before the elec-
tion and continuing through the time of the hearing, Respondent placed a large
mirror next to the timeclock and above it placed a sign reading "Think. You are
looking at the picture of an employee." The slogans referred to above were placed,
one at a time, beneath this legend. They were changed approximately every 3
days, and six of them dealt with the forthcoming election. Of these six, only one
was alleged to violate the Act. This slogan, which was posted from October 4
to 6, read: "Whose job can be destroyed by union strikes. Vote No."
Under the circumstances of this case, I find that the posting of this slogan for
3 days some 2 weeks before the election was not an unfair labor practice and did
not create an atmosphere which prevented the holding of a fair election. Re-
spondent for many weeks prior to the posting of this slogan, and for the 2 weeks
subsequent thereto, placed its major campaign efforts in emphasizing to the em-
ployees that if the Union won the election and made economic demands which the
Respondent would not meet, the Union's sole recourse would be to call a strike
in which event the strikers could be replaced. Union campaign literature, while
disclaiming any desire on the Union's part to call a strike, had stated that on occasion
strikes were necessary to achieve desired ends? Under these circumstances the
slogan in question should have been properly understood by the employees, and
its appearance for only 3 days, 2 weeks before the election, did not create an at-
mosphere of confusion or intimidation at the time of the balloting. I further find
that in all the circumstances the poster and slogan did not constitute interference,
restraint, or coercion violative of Section 8(a) (1).
2. The speeches of October 13 and 15
The election was held on Wednesday, October 18. On the preceding Friday and
twice on the preceding Sunday Plant Manager Priester read the identical speech
to the employees at work in the plant. A copy of Priester's speech was introduced
as an exhibit, and is reproduced as an appendix to this report. In my view the
contents of this address were well within the area of "views, argument, or opinion,"
so that its delivery did not constitute an unfair labor practice. Although Priester
did say, "There are more raises to come," this remark in context was an expression
of general business optimism ("You and I are going to earn further increases")
rather than a "promise of benefit." I further find that the speech consisted of
permissible campaign propaganda, and furnishes no basis for setting aside the elec-
tion.4 See F. W. Woolworth Company, 111 NLRB 766, 767-768.
3. The October 17 dinner, speeches, and film
As stated above, the election was held October 18. A few days prior thereto the
Company invited its employees and their wives to be the guests of the Company
at a dinner 5 to be held the evening of October 17 at a nearby community center.6
Attendance was voluntary, but the Company asked the employees to advise it in
advance whether they planned to attend, so that the Company could ascertain
approximately what quantity of food and drink would be consumed. Virtually all
8 The Company's campaign literature is the subject of objections to the election but is
not alleged to constitute an unfair labor practice The content of this literature was
comparable to that of Priester's speech, discussed below, which is reproduced as an
appendix to this report. Its main theme was that if the Union called an economic strike,
the Company could permanently replace the strikers As campaign propaganda, it stayed
within permissible limits. Mar-Jac Poultry Company, 123 NLRB 1571, 1574.
a Priester testified and I find that he made no statements at the October 13 and 15
meetings other than those contained in his written text
5 There is no allegation that giving the employees a dinner the night before the election
of itself violated Section 8 (a) (1).
6 Adtually there were two dinners, one on October 16 for colored employees and the
other on October 17 for white employees. The allegations of the complaint as to viola-
tions on October 16 were eliminated by amendment offered by the General Counsel, who
produced no evidence as to events at that meeting. It later developed that the content
of the two meetings was substantially identical.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees attended; a few did not. The hours of the bakery were adjusted
that day to make it easier for employees to attend the party. With one minor excep-
tion employees were not paid for time spent at the party, even though in a few
cases it coincided with time they would otherwise have been at work. The sole
exception appears to have been Cantrell, whose compensation was based on a guar-
antee of 60 hours a week, and whose 60 hours in that week included part of the time
he spent at the party.?
The employees and their wives arrived at the party at from 7:30 to 8 p m., and
left about 10:30 p in. During the interval they enjoyed alcoholic beverages (the
serving of which is prohibited in the county), were served dinner, beard remarks
by Plant Manager Priester and Company President Cooper, and saw a moving pic-
ture film.
a. Cooper's speech
Priester opened the after-dinner ceremonies by introducing Cooper, a Tallahassee,
Florida, resident, who operated bakeries in several States, and who was making his
first visit to Murfreesboro since recovering from a heart attack he had sustained
the preceding March. Cooper proceeded to review the progress of the bakery since
he had bought it 18 months before, reminding the employees that he had kept the
promise he had made immediately after he purchased the plant to give them three
wage increases in the first 18 months. He stated that although the plant was still
operating at a loss, he was satisfied with its progress and was optimistic about its
future. He plainly implied, although he did not explicitly promise, that future wage
increases would be given. Referring to his bakery at Anniston, Alabama (which
had been mentioned in the Union's campaign literature), Cooper stated that the
Anniston plant was the only one of his bakeries in which the employees were rep-
resented by a union, and in that instance the plant had been organized when he
bought it. He added that at the time he bought the Anniston plant, the wages there
were substandard even though the employees had been represented by a union, and
claimed that the improvements there were attributable to good management rather
than to the Umon. Cooper concluded his brief, 3- to 5-minute remarks by reminding
the employees that they were free to vote as they wished but he hoped they were
"with us."
General Counsel's complaint as amplified by particulars he furnished does not
allege that Cooper's remarks violated the Act. Although the Union urges that his
speech is grounds for setting aside the election, I find nothing in it that exceeded
the bounds of legitimate propaganda. His observations as to the future of the plant,
although plainly implying that the employees would share in the anticipated financial
improvement, were far too general to be condemned as a "promise of benefit," or
as an improper attempt to influence the balloting. Cooper's remarks were made
within 24 hours of the election, but were delivered outside the plant at a meeting
at which attendance was technically voluntary and for which the employees were
not paid.8
b. Priester's remarks and the film
After Cooper's remarks, Priester told the assembled employees that they were
about to see a film in which he was sure they would be interested because parts of
it involved people in the adjacent county of Davidson. The room was then dark-
ened, and the employees saw and heard the film "A Question of Law and Order,"
which is in evidence as General Counsel's Exhibit No. 3.
Briefly summarized, the film is devoted to the subject of violence in labor dis-
putes. A narrator makes editorial comment while showing various scenes of strike
violence and of testimony adduced before the Senate Select Committee on Improper
Activities in the Labor or Management Field, 85th Congress, 1st session.
In the course of the film, the narrator succinctly summarizes the history of labor
relations in the United States with special reference to the enactment of the National
Labor Relations Act and subsequent amendments thereto. After reading the statu-
tory guarantee of the right to strike (Section 13), the narrator remarks that this
language may have led people to overlook that not only strikers, but management,
employees, and the public have rights in strike situations. The film shows various
scenes of violence, which the narrator states attended organizational strikes, includ-
ing physical beating of various persons by groups of others, overturning of cars
4 A supervisory employee performed Cantrell's duties while the latter was at the party
'As noted above, Cantrell was technically paid for part of the time he was there (his
work shift started at 10 p.m in Nashville and he was several hours late reporting) but for
pradtical purposes he was a salaried employee.
IDEAL BAKING COMPANY OF TENNESSEE, INC. 561
and other damage, threats, and the like. The narrator then observes that violence
is not limited to organizational strikes, and the scene shifts to the Senate committee
where Committee Counsel (now Attorney General) Kennedy examines witnesses
who describe intimidation of themselves and their families at the hands of organized
labor.
The film then turns to the subject of picketing. The narrator observes that labor
has the right to publicize its position in a labor dispute but further observes that a
union has no right to prevent people who want to work from doing so. The film
then shows scenes of mass picketing and attendant violence, stoning and overturning
of cars, beating of persons who attempt to enter a plant which is being picketed,
and other similar episodes. At one point the camera focuses on a person lying,
apparently unconscious, in a street. The narrator then observes that we have laws
against violence, but that those laws are not vigorously enforced in labor controversies
The film shows further scenes of the Senate committee, in the course of which Mr.
Kennedy interrogated an official of Davidson County, Tennessee, as to the failure to
maintain order in Nashville during the course of certain activities of the Teamsters
Union.9 The film closes with the narrator's plea for law enforcement in cases involv-
ing labor violence, and with more scenes of violence, presumably in the course of
labor disputes.
Priester dismissed the assemblage when the film ended, commenting only that
they all had to work tomorrow, that they had seen the film, and that he hoped
nothing like that (a reference to the violence depicted in the film) ever happened
in Murfreesboro.
c. Conclusions with respect to the film
The record admits of little doubt that the Company's chief purpose in giving the
party the night before the election was to show the film to the employees and their
wives. The invitation to the party expressly mentioned the film, although it also
stated that the Company wished to discuss "some final important thoughts concern-
ing the union election" and that Mr. Cooper would make "some timely remarks."
But Cooper's remarks, which were the only comments made regarding the election
except for Priester's line at the end of the film, were extremely brief and added
little to what the employees had already heard from other company spokesmen.
Indeed Cooper himself testified that he only decided "at the last minute" to come
to Murfreesboro on that occasion, and he spoke for only 3 minutes or thereabouts
It may also be noted that the Company was apparently quite determined that the
wives of the employees view the film, for there is no reason to believe that the
Company could not more easily have shown the film to the employees at the plant.
Also, it must be noted that the Company either had the film in advance and with-
held it, or at the least arranged to obtain and show it, on the eve of the election,
for the party invitations referred to it, and Sales Manager Lunsford knew of it the
preceding Friday. In short, the Company deliberately showed the film when its
impact would be freshest at the time of balloting and when the Union would have
no opportunity to rebut it.
In describing the film in the foregoing section of this report, I have attempted
to summarize it accurately and dispassionately. No mere paper recital-at least
none of which this author is capable-can fairly reproduce the impact of the film
itself. The scenes of mob violence, of brutality, and of serious danger to life and
limb as well as the wanton destruction of property depicted on the screen have an
impact on the viewer far in excess of that which is conveyed by a mere recital of
the content of the film.
It is, of course, no basis for objection to propaganda that it is effective. Nor is
there anything inherently unlawful in the employer's attempt to enlist the aid of the
employees' wives in persuading the employees to reject the Union. But election-eve
propaganda which is intimidatory rather than persuasive, and which is palpably
misleading in its presentation of facts, oversteps the bounds which the Board permits
in election campaigns.
The film in this case, in my judgment, went far beyond permissible campaign
propaganda. Its import, succinctly stated, is that serious violence regularly attends
labor disputes and is a normal concomitant of union activity. Nothing in the film
or the accompanying narrative suggests that violence is the exception rather than
the rule in such matters. The contrary implication is plainly given and is plainly
intended. The Company in presenting the film did nothing to dispel this misim-
pression. On the contrary the Company fostered it by Priester's closing remark that
9 See the hearings before the committee, pages 7313-7334, December 10, 1957
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would not want to see such events in Murfreesboro . The plain implication was
that voting in the Union would lead to violence such as was depicted in the film.
Nothing in the film or in the Company 's presentation of it identified the Union in
this case as a party to any of the violence depicted . By the same taken , however,
nothing was said to disassociate this Union from the conduct depicted in the film.
As the film was shown as part of a campaign against this particular Union, in the
absence of any disclaimer by the Company the employees could be expected to infer
that at least parts of the film had to do with the labor organization which was the
subject of their and the Company 's immediate interest.
Finally, the fact that the Union had no opportunity prior to the election to counter
the misleading impact of the film is a further reason for finding that the film prevented
the holding of a fair election . Basically, however , the vice in the film is that propa-
ganda of that nature has an impact which cannot be countered by mere verbal or
written reply. In my view the showing of such a film to employees during the course
of an antiunion campaign exceeds the bounds of permissible propaganda , 1° and its
impermissibility is only heightened in this case by the timing of the film , the attempt
to intimidate the wives of the employees , and the failure to disclaim that the Union
in this case was involved in the film sequences . In essence , it is my view that in-
flammatory appeals to fear and not to reason have no place in these elections, and
particularly not on the very eve thereof . Certainly the Employer 's election eve
propaganda here "lowered the standards to the point where it may be said that the
uninhibited desires of the employees cannot be determined from the election."
N.L.R.B. v. Houston Chronicle Publishing Co , 49 LRRM 2782, 2786, 300 F. 2d
273 (C.A. 5). The case is manifestly distinguishable from Westinghouse Electric
Corp., 118 NLRB 364, where the film shown concerned events at a plant of the
Company involved in the case."
Having reached the conclusion that by showing the film Respondent prevented the
holding of a free election , I must logically conclude that-laying aside for one
moment the impact of Section 8(c)-Respondent has interfered with the employees'
exercise of their Section 7 right to select a bargaining representative . This would
be a violation of Section 8(a)(1) unless Section 8 (c) precludes consideration of
the showing of the film as evidence of an unfair labor practice.
Section 8(c) permits the expression and dissemination of views, argument, or
opinion, whether in written , printed, graphic , or visual form, provided the expression
contains neither threat of reprisal nor force or promise of benefit . The plain
meaning of this section is that the threat in question must emanate from the speaker
or from participants on his side of the matter; it is not a threat of force, within the
meaning of that section , for an employer to attribute to a union which he opposes
a proclivity to violence . The violence depicted in the film was not directly attrib-
utable to employers , but on the contrary was attributable to unions or to their
supporters or to employees opposing unions. If, therefore , the film constituted
"views, argument , or opinion" its showing fell within the ambit of conduct permitted
by Section 8 (c).
The narration acompanying the film unquestionably constituted "views, argument,
or opinion," and the Company in effect adopted it as its own. It could be argued
that the scenes of violence depicted in the film constituted an attempt to intimidate
rather than to persuade , and should not be embraced within the area of "views, argu-
ment or opinion ." But the statute expressly permits the use of "graphic " and "visual"
means of expressing or disseminating "views, argument , or opinion ," and hence
apparently contemplates resort to methods other than pure speech . Although as
heretofore stated the film and narrative were grossly misleading insofar as they
implied that violence was a normal byproduct of unionization , the protection of
Section 8 (c) is not limited to accurate expressions.
10 Compare the settled principle that evidence , otherwise admissible, may be excluded
if it would create "an undue prejudice in excess of its legitimate probative weight."
Wigmore, Evidence, § 1904.
11 In my judgment the film in this case taints the atmosphere of the election far more
than such a film as "And Women Must Weep" which the Regional Director in Pioch+nan
and Harrison-Cherry Lane Foods, Inc (13-RC-7989), 140 NLRB 130, held to be per-
missible propaganda, following remand from the Board That film is openly and ad-
mittedly done from a script with professional actors ; it deals with just a single episode ;
and it portrays "good" unionists as well as "bead " In this case the film purports to re-
flect a universal situation and has the impact of a "documentary." Priester's closing re-
mark that they "would certainly hate to see anything like that happen here" had far
more impact on the employees and their wives following this film than if it had referred
to the isolated episode in "And Women Must Weep."
IDEAL BAKING COMPANY OF TENNESSEE, INC. 563
Accordingly, although I recommend setting aside the election because of the film,
I find that the Respondent did not violate Section 8(a) (1) by showing the film in
question. Cf. Metropolitan Life Insurance Company, 90 NLRB 935, 938-939,
General Shoe Corporation, 77 NLRB 124, 127.
CONCLUSIONS OF LAW
1. Respondent is 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. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the basis of the entire record in this case , it is recommended that the complaint in
Case No. 26-CA- 1167 be dismissed. It is further recommended that the election
in Case No . 26-RC-1663 be set aside , and that a new election be conducted at such
time as the Regional Director for the Twenty-sixth Region deems that circumstances
permit the holding of a fair election to determine the employees ' free choice of a
bargaining representative.
APPENDIX
SPEECH DELIVERED BY PRIESTER TO ASSEMBLED EMPLOYEES ON
OCTOBER 13 AND 15, 1961 1
I want to talk with you today about this very serious union matter-the literature
and letters that have been mailed to you . As I told you before I will keep you in-
formed of the true and correct facts concerning this matter.
First let me emphasize this again . No matter if you signed a union card-no
matter if you have attended a union meeting-no matter if you have listened to the
fast talk and wild promises of the union salestalker-No matter what you may
have done-you are not obligated to this union-YOUR VOTE in the No box at
the bottom right hand of the ballot is the only thing that will keep this union out.
YOU WILL VOTE IN ABSOLUTE FREEDOM!
As I told every one of you before, I went to a NLR Board hearing in Nashville
on August 21. The Union Salesmen immediately claimed that the Company was
delaying the election .2 That's nothing but a lie. The only difference of opiniol
that we had with the union was that we felt everyone in plant possible should have
the right to vote-We believe in the right to vote, but the union wanted to keep some
of you people from voting and it was the union -NOT THE COMPANY who refused
to agree to let these people vote.
Let me read a couple of things: ( 1) [lst sentence of footnote] : 3
The LABOR BOARD agreed 100% with what the Company said . The union
was trying to keep these people from voting and it was the union that threw a monkey
wrench in the works by trying to keep these people from voting. Let me tell you
another thing about this election . We are providing a place right here in the plant-
also at Nashv. also at Cookv .4 and also at Manchester for the voting to be held.
We are not required to do this and we could refuse but we are going out of our
way to help the labor board hold this election because we believe in your right to
vote. We are also going to build a voting booth for you to vote in. Again we are
not required to do this. While we do all we can to help the labor board the union is
doing nothing to help . In fact the labor board wanted us to bring in the 2 people
i This speech was introduced as Respondent's Exhibit No. 10, which is Priester's hand-
written copy It is reproduced here precisely as It appears In the original exhibit insofar
as Italics, capitalization, abbreviations, spelling, etc., are concerned, except that mate-
rial which was crossed out or otherwise obliterated is not shown. In the margin
Priester had written notations which are not reproduced In the following text but are
noted and explained in footnotes at the appropriate point. Other explanatory footnotes
have also been appended by the Trial Examiner ; the original text contains no footnotes
2A marginal note at this point indicates that Priester held up a union leaflet (Re-
spondent's Exhibit No 7) captioned "The Old Stall."
3 Priester's marginal note here Is "Dec. of LABOR BOARD." He presumably read
from the Regional Director's Decision and Direction of Election.
4 The references are to Nashville and Cookeville.
717-672-64-vol. 143-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eligible to vote from Nashv.-the 1 from Cookv . and the 1 from Manchester so
all of you could vote together here-and we were willing to do that but the union
_bjected so now the labor board man has to drive all over the map so our people
in Manchester, Cookv. and Nashv. can vote.
There have been other pieces of junk that the salestalker mailed to your homes.
The 1st letters were signed by a Merle C. Smith The last 3 were not signed.
A favorite trick of unions is to let one fast talking organizer come in and make
wild promises to you and then when it comes time to produce-He disappears and
another union representative comes in-one who professes to know nothing about
the promises-and therefore does nothing about them. BEWARE OF THIS. The
above happened to the Holsum Bakery employees in Montg. Ala .5 Holsum em-
ployees voted a union in. The big promising union organizer was transferred-
a new one was sent in. The Holsum Co. offered .050 per hr. increase. The union
boss forced the employees to strike. These employees were on strike for 5 weeks-
from early Dec. until mid Jan.-this of course was right at Christmas time. The
employees went back to work for 50 per hr. increase-exactly what the Co. had
offered 5 weeks earlier. Who can afford to loose 5 pay checks-at Christmas time
or any time for that matter. I know that I cannot and I don't believe you can either.
Don't be satisfied with a lot of sweet talk says the union salestalker.6 Let me
remind you not to be satisfied with a lot of fast talk-Promises that cannot be
fulfilled. The only thing that the union can definitely promise and produce is a
strike [pause] loss of work, loss of pay-loss of job. The union does not hire and
they do not fire. This union fast talker has told some of you that if you do not
vote the union in now you will be fired. That is a silly statement and sounds like
it came from a silly fool. NO ONE WILL LOOSE [sic] THEIR JOB. The only
person worried about his job is the union salestalker. He has lost a number of elec-
tions lately therefore his job is in jeopardy That is why he is making wild promises
and foolish statements. DO NOT LISTEN TO THIS NONSENSE. Let me
repeat-The union did not hire any of you and the union cannot fire you and can-
not get you fired.
This bird keeps talking about job security-job security. Please listen to this
(1) Read about Peerless.?
(2) He said something about the Anniston Bread Dept.8
Let me read it "Did [reads] Anniston Bd. Dept.
Did this same union fasttalker protest the move in Anniston?
Did he do anything for those workers? NOl! NO. He did not. The truth is a Co.
has to compete with a competitive market and the only security that any of us have
is to beat the competition. Right here in this area Sunbeam has made tremendous
gains and they are NON-UNION. The union members of other bakeries nor the
organizers did not stop their progress . This should prove to you that the unions
cannot offer security, so why pay your good hard earned money for something you
are not going to get from them.
JOB SECURITY-Again I say that you are going to have those things by work-
ing with a good Company. This smooth talking organizer isn't going to give you a
penny. He is here to make money off of you.
Further down the article he makes the statement that I was fired or forced to
resign from Col. Baking Co. because I mistreated the salesmen. I feel sure that
very few of you would believe a ridiculouse lie like that but just in case I had Mr.
Serdes (President of Colonial Baking Co.) write me a letter stating why I left.
(Read letter.) 9
That letter confirms the fact that after 17 years I resigned of my own free will
because Mr. Ron Cooper had made me a better offer and I had a better opportunity
for advancement. In fact Mr Cooper and I had been talking for 4 months about
my coming to work for Ideal Bakery before I finally decided to leave Colonial.
At bottom of leaflet he says do as 15,000,000 other workers have done.
I say do as 57,000,000 other workers in the U.S.A. have done. Do not let these
union bosses get their hands into your pockets . Do not let them get control of
6 Presumably Montgomery, Alabama.
6 Marginal note reads "Bit of Candy " At this point Priester held up the union leaflet
so captioned (Respondent's Exhibit No. 8).
4 This reference is unexplained
8 The marginal note indicates that Priester held up a union leaflet captioned "Please,
I'm worried" (Respondent's Exhibit No. 10B) and read the following excerpt: "Did they
stay awake nights worrying when they closed the bread department at Anniston "
"The letter Priester read is not in evidence
A
IDEAL BAKING COMPANY OF TENNESSEE, INC. 565
your job. Do not let them pull you out on strike as they have done to millions of
workers year after year. Remember there are 3 NON UNION workers for every
union worker in America.
Theme of this leaflet 10 is-they have done nothing for you in 18 months. I
think you should give some serious thought to that mis-statement. The first thing
this Co. did was save the jobs of every one of you who has a job here now. The
2nd thing we have done is buy new equipment and pour thousands and thousands of
dollars into this plant so that your job and mine would be secure by making us
competitive with the other bakeries in the area. Also I would like to mention
the many, many favorable comments on the improvement of our product that I
have heard in recent months. I want to thank every one of you and congratulate
every one of you because you are the ones that make the very fine loaf of Ideal
Bread-therefore make these statements that people make to us correct. I feel
sure that each of you have heard many fine compliments on the product.
The Co. has not made one penny here. We still show a loss of thousands of
dollars-yet despite that Mr. Cooper has insisted that we move ahead by giving
you pay for more of your insurance benefits and giving you 3 wage increases in
18 months.
Every employee that left the Co. when the cake shop was closed received from
1 to 5 weeks severance pay plus vacation pay for this year (which was at that time
not yet earned). The union does not look after union people like this. We have
rehired every cake shop employee that kept coming back looking for work.
Further down-Right now the only reason [reads] profits)."
This sounds like to me the organizer would welcome a strike. Let me make this
clear [pause] A STRIKE WILL NOT affect OUR profits-because this bakery
will continue to operate-everyday, everyday-everyday-The Same As M'Boro 12
Pure Milk did. The strikers were replaced-have not been rehired and I under-
stand that some of those people are still out of jobs nearly one year later. That
wild talker was talking Big Pay and Job Security to those people.
Let me tell you something about the Anniston situation. Previous to 1950
Mr. Lloyd was operating a bakery in Anniston, Ala. and doing pretty good for
himself and his employees. This same union came in there and fast talked those
employees into signing up. After a strike Mr. Lloyd signed a contract then soon
afterward he locked the place up and every employee was out of a job. Big
Money-Big Talk-You Remember the old saying "Misery loves company" I be-
lieve these Anniston people are being paid by the union to come up here and try to
get you hooked. They are not coming up here because they have an interest in
your welfare and well being. The union goon on top of paying them has probably
promised them that since they have had a union longer he will try to force the
company to put more of the production back in Anniston-thereby putting some of
you out of work. Money dues, assessments, fines, etc.-that's what those union
people are after.
Here is something that is encouraging to us-Every day more and more employees
(more of you all) are coming to us with literature (show some-) 13 and we have
plenty more-But best of all we have had numerous ones to come in and say
that they signed a card but now see their mistake (because they have now heard
the true and correct side) and that they will certainly vote NO Union next Wed.
One more thing that is important enough for me to answer. They say that we
gave you some raises because we were forced to by law. That is not true. You
know as well as I do the general increase that was given in May of 1960 was not
required by law and it was not required by any union contract. The raise we gave
in Nov. of 1960 was not required by law and no union made us do it either. The
raise which we just gave you was only required for those making less than $1.15
per hour and we were required to raise only to $1.15. In other words we could
have raised a few people to 1.15 and gave nothing to anyone else. But we did
not do that because we do not have to be forced by law or by anybody else to
10A marginal note indicates that here Priester held up a union leaflet headed "They're
Sorry Now" (Respondent's Exhibit No. 10A).
11 A marginal note indicates that Priester held up the "Please I'm Worried" leaflet (foot-
note 8, supra) which read in part: "Right now the only reason they are fighting your
attempts to organize is-not because you might suffer because of a strike (although that
too would cut into their profits) but simply because a gain in benefits for you would cut
into their profits ' The use of the "close parenthesis" sign in Priester's draft suggests
he read only to the first "profits."
12 Murfreesboro.
13 The record does not indicate what Priester showed.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase wages or benefits the 3 raises that you have gotten plus the increase in
insurance benefits is part of the Company 's long range plan. There are more
raises to come, but you know and I know that money cannot be picked out of the
air and union organizers can not give it to you either . We are going to make Ideal
Bakery one of the leaders in this area . We are going to make it a profitable busi-
ness. And working together-you and I are going to earn further increases in pay
and benefits and build real job security.
In closing let me remind you-this is your fight-the only way we will win is
by the Company and you sticking together . These union bakeries that have Mr.
Merle Smiths Union would like to see us hurt. They would like to see us closed
by a strike . Just remember-you and I are the ones that will suffer most because
of Union strikes and trouble. VOTE NO!
I thank you.
Taylor Baking Company and Local 42, American Bakery and
Confectionery Workers International Union, AFL-CIO, Peti-
tioner. Case No. 10-RC-5503. June 28, 1963
DECISION ON REVIEW AND DIRECTION OF ELECTION
On March 25, 1963, the Regional Director for the Tenth Region,
issued his Decision and Order dismissing the petition in this pro-
ceeding on the ground that the record failed to establish that the
Employer's operations meet any of the Board's jurisdictional stand-
ards. Thereafter, pursuant to Section 102.67 of the Board's Rules
and Regulations, Series 8, as amended, the Petitioner filed a timely
request for review, and a statement in support thereof, in which it
contended, inter alia, that the Employer's operations do meet the
Board's indirect outflow standard, and requesting that the hearing
be reopened to receive additional evidence on jurisdiction.
On April 10, 1963, the Board, by telegraphic Order, remanded the
proceeding to the Regional Director for purposes of reopening the
hearing for further investigation of the Employer's operations. A
further hearing was held on May 1, 1963, before Scott P. Watson,
hearing officer. On May 16, 1963, the Regional Director issued an
order transferring the case to the Board.
The Board 1 has considered the entire record in this case and makes
the following findings :
1. The Employer is engaged at Atlanta, Georgia, in the production
and sale of bakery rolls. During 1962 is purchased from outside the
State of Georgia materials valued at approximately $20,000. Its gross
sales, all of which were made within the State, amounted to approxi-
mately $105,000. Of this amount, products valued in excess of
$50,000 were disposed of, in the manner set forth below, through
retail grocery stores, each of which has annual gross sales exceeding
$500,000.
i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers In connection with this case to a three -member panel
[ Chairman McCulloch and Members Leedom and Brown].
143 NLRB No. 53.