Jervis Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1966

159 N.L.R.B. 262 (N.L.R.B. 1966)

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record and bearing in mind particularly (1) the sharing
of control of certain aspects of the working conditions of the licensee's
employees as provided in the license agreement and the rules and
regulations; (2) the evidence of actual control of wage rates as
detailed above; and (3) the provision in the rules and regulations
prohibiting the continuance of labor disputes involving the licensees-
we find that K-Mart is a joint employer of the employees in each
of the licensed departments.8
We find, in accordance with the stipulation of the parties,° and our
findings above, that the following employees of K-Mart and its
licensees constitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act:
All regular full-time and part-time employees, including employees
of K-Mart and those of its licensees, employed at K-Mart's San
Fernando, California, store, including selling, nonselling, and office
clerical employees, but excluding professional employees and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]"
8 Esgro Anaheim, Inc., 150 NLRB 401, and cases cited supra, footnote 6, relied upon by
R-Mart and the licensees , are, in our opinion, inapposite.
8 The parties stipulated that a single -store unit was appropriate and that the inclusions
and exclusions listed in the petition herein were also correct.
iu An election eligibility list, containing the names and addresses of all the eligible
voters, must , be filed by the Joint Employers with the Regional Director for Region 31
within 7 days after the date of this Decision and Direction of Election . The Regional
Director shall make the list available to all parties to the election. No extension of time
to file this list shall be granted by the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be grounds for setting aside the
election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
Jervis Corporation , Bolivar Division and John David Craft
Jervis Corporation and International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America,
UAW, AFL-CIO
Jervis Corporation and International Union , United Automobile,
Aerospace & Agricultural Implement Workers of America,
UAW, AFL-CIO, Petitioner. Cases 26-CA-2019, 2065, and 26-
RC-2317. June 13,1966
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On December 20, 1965, Trial Examiner Herman Tocker issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
159 NLRB No. 8.
JERVIS CORPORATION 263
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner' s Deci-
sion. He further found that certain conduct of the Respondent had
interfered with an election held on March 17 and 18, 1965, and
recommended that it be set aside and a second election held. There-
after, the General Counsel and the Respondent filed exceptions to
the Trial Examiner's Decision and supporting briefs, and the Union
filed cross-exceptions to the Trial Examiner's Decision.
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 [Chairman McCulloch and Members Brown and Zagoria].
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, briefs, and-the entire record
in these cases, and hereby adopts the findings,' conclusions, and rec-
ommendations 2 of the Trial Examiner with,the following additions,
modifications, and exceptions. . , ,
1. The Trial Examiner concluded, and we agree, that the Respond-
ent violated Section 8(a) (1) of the Act by unlawfully interrogating
and threatening employees, by promising benefits, and by creating the
impression' of surveillance of union, activities. In adopting' this con-
clusion of the Trial Examiner, we do not necessarily endorse all of
his extensive commentary, and, observations,,but rely :specifically on
the following conduct : , , • • . ' ' „ . 1.
(a) As to interrogation, Supervisors Derryberry, Searles, Sledge,
and Farrell, from December 1964 to March 1965, questioned a num-
ber of employees, not only about their union, affiliation' or allegiance,
but also about their knowledge of '.the union "affiliation of other
employees: , .
(b) As to threats, the Respondent warned the employees that there
would be a -reduction in jobs and a•,possibility that- it 'would move its
operations from Tennessee to Mississippi if the Union won the elec-
tion. ' This was conveyed, by the Respondent's president,in a speech
i No specific exceptions were filed to any of the Trial Examiner's findings relating,to the
Union's objections to the election . We adopt pro forma his findings that there was no
merit in the Union's objections as to the campaigning by supervisors during the preelec-
tion period , the antiunion parades throughout the plant Immediately preceding the elec-
tion, the wearing of antiunion electioneering signs in and around the voting area during
the election , the location of the voting area in the plant which enabled unauthorized per-
sons to observe those voting, and the display in the plant of antiunion banners and signs.
However, we do not adopt the Trial Examiner 's disposition of objections which are in-
consistent with our findings that the conduct In question was violative of the Act
2 We find no merit in contentions by'the"Respondent and the General Counsel that var-
ious credibility findings of the Trial Examiner are erroneous as-the clear preponderance of
all the relevant evidence does not demonstrate that the credibility findings are Incorrect.
Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3).
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
put on phonograph records which were distributed to all the employ-
ees, played over the local radio station twice a day on the day of the
election and the two preceding days, and broadcast on the plant's
loudspeaker system. In addition, Supervisor Farrell cautioned
employees that, if union activity continued, "All of us would be look-
ing for a job," and stated that the Respondent would not bargain
with the Union even if it won the election.3 Supervisor Baker, in
distributing to a group of employees "Vote No" signs, told employee
Burgess, whose union affiliation was known, "You could be made to
change your mind."
(c) As to promises of benefit, Supervisors Derryberry and Sledge
separately advised employee Littlejohn, an active recruiter for the
Union, that his future would be bright if he abstained from union
activity, Derryberry specifically predicting that he would be pro-
moted to foreman in a year.
(d) As to creating the impression of surveillance of union activi-
ties, Supervisor Searles, in trying to elicit from employee Catherine
Mae Ross information about the activities of other employees, warned
her, "We've got ways of knowing. We know everybody that's signed
cards."
2. We find merit in the General Counsel's exceptions to the follow-
ing determinations made by the Trail Examiner :
(a) The Trial Examiner found that Supervisor Cranes told
employee Kiestler, in response to a question concerning the closing
of the plant if the Union won the election, ". . . if we lose our con-
tracts, there would be no other alternative but to move." The Trial
Examiner concluded, however, that this statement was not "a threat
to move but a speculation on the possibility that, if the company lost
its contracts, it would move." In light of the threats to move in the
event of a union victory, made by the president and various super-
visors of the Respondent, we find that this reply of Cranes, which
interjected for the first time the question of losing contracts, was a
similar threat and, therefore, a further violation of Section 8(a) (1)
of the Act.
(b) As the Trial Examiner found, employee Whitten testified that
he overheard Supervisor Baker tell an employee that the Respondent
would move if the Union came in, that "We left Memphis, didn't
we, to keep from being organized and we'll leave Bolivar." Although
the Trial Examiner does not discredit this or other testimony by
Whitten, he stated that he disregarded it on the grounds that the
employee to whom the statement was made was unidentified, and
8 Although the Trial Examiner found Farrell's last statement to be an unlawful threat,
he failed , apparently inadvertently , to include this in his ultimate findings of violations
of the Act.
JERVIS CORPORATION 265
that "Whitten did not participate in this conversation and there is
no way to assess or weigh the conditions under which or the context
in which the alleged remark, if made, was made." The identity of
employee Tranum, to whom the remark was made, is in fact clearly
established in the record, in part through questioning by the Trial
Examiner. Since testimony concerning the remark was uno'bj ected
to, is clearly admissible, and is undenied, it cannot be disregarded.
In view of the fact that an employee overheard the remark, that the
meaning and intent of the remark is clear, and that it is the same
type of remark that various supervisors were making to employees,
we find that it constituted a further threat violative of Section 8
(a) (1) of the Act.
(c) The Trial Examiner found that the Respondent, in a speech
delivered in the plant on February 15, 1965, copies of which were
thereafter mailed to each employee, announced its intention to build
a new cafeteria and to institute a job evaluation program on
March 1, 1965 which would result in a number of wage increases.
The Trial Examiner concluded that these announcements could not
have influenced employees because they were "only casual observa-
tions of continuing progress being made and confirmation of informa-
tion already in the possession of the employees," and, therefore, that
they did not constitute unlawful promises of benefit. The General
Counsel contends that any information employees may have had
about such plans was the product only of vague rumors; that the
Respondent's official release of such information, accompanied by
antiunion statements, was made at the height of the Union's organi-
zational campaign; and that the Respondent failed to explain why
the first official announcement of these plans occurred at the time it
did. Accordingly, the General Counsel urges that the Respondent's
announcement constituted an unlawful promise of benefit.
The Trial Examiner found that the Respondent first considered
the construction of a new cafeteria in January 1964, just 4 months
after the opening of the plant here involved. The Respondent
asserted that it was exploring the possibilities of such construction
at least 8 months before it was annuonced, but we note that the
announcement, made at the height of the Union's campaign, was
also made prior to the letting of bids and even before the financing
was arranged. Moreover, the announcement was made in a context
of threats, conveyed in speeches and supervisors' remarks to employ-
ees, that the progress the new plant was making, and the resulting
employee benefits which the Respondent was planning, might be
forfeited in the event of a union victory. It is apparent, from the
foregoing and the entire record, that the announcement was made in
a way and at a time designed to discourage employees from suppor'
ing the Union.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, the announcement of the job evaluation scheme was
made under the same circumstances. It provided that not every
employee was guaranteed a wage increase under the plan, but that
each employee was to be interviewed, and one of the three criteria to
be used in determining his appropriate pay rate would be the employ-
ees "attitude." The evidence shows that the classification of the
various jobs was completed in October 1964, but was not followed
by an announcement of the plan or its projected implementation
date until February 15, 1965. The Respondent claims that this delay
was due to a trial application of the plan in the die casting depart-
ment in December 1964, but the employees involved were not told
that they were a pilot group. In fact, the Respondent did not claim
that it had even considered the results of this "experiment" prior to
deciding to implement the program. We are convinced, upon the
entire record, that this plan, like the construction of a new cafeteria,
was precipitately announced during the critical preelection period in
an effort to persuade the employees to vote against the Union, and
was couched in terms that would convey the idea that support of
the Union could jeopardize the possible increase in wages. We find,
therefore, that the announcement both of the cafeteria construction
and of the job evaluation scheme was timed and worded in such a
manner as to be violative of Section 8(a) (1) of the Act.
3. We find merit in the Respondent's exception to the Trial Exam-
iner's inclusion of Cox as one of the supervisors found to have made
threats, as the Trial Examiner had discredited the testimony of
employee Foster with respect to the alleged threats made by Cox,
and there was no other testimony in this regard.
4. In view of the numerous and repeated violations of the National
Labor Relations Act found herein, we find merit in the General
Counsel's exception to the Trial Examiner's recommendation of a
narrow remedial order, and shall, therefore, modify the Trial Exam-
iner's Order accordingly.
[The Board adopted the Trial Examiner's Recommended Order with
the following modifications :
[1. Delete paragraph 1(e) of the Trial Examiner's Recommended
Order and add the following paragraphs :
[" (e) Threatening employees that it will not bargain with the
Union in the event the Union wins the election."
[" (f) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self-organization,
to form, join, or assist International Union, United Automobile,
Aerospace R Agricultural Implement Workers of America, UAW,
AFL-CIO, or any other labor organization, to bargain collectively
JERVIS CORPORATION 267
through representatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities." - '
[2. Delete the fifth paragraph of the Appendix to the Trial Ex-
aminer's Decision and add the following paragraphs :
[WE WILL NOT threaten employees that we will not bargain
with the Union in the event it wins the election.
[WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist International Union, United
Automobile, Aerospace & Agricultural Implement Workers of
America, UAW, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.]
IT IS FURTHER ORDERED that the election held on March 17 and 18,
1965, among the Respondent's employees at its Bolivar , Tennessee,
plant, be, and it hereby is, set aside, and that Case 26-RC-2317 be
severed and remanded to the Regional Director for Region 26 for the
purpose of conducting a new election in the appropriate unit at such
time as he deems that circumstances permit the free choice of a
bargaining representative.
[Text of Direction of Second Election omitted from publication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding came before the Trial Examiner Herman Tocker after service
by the General Counsel, on May 14, 1965, of a consolidated complaint following
charges filed by International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW, AFL-CIO (hereafter referred to as the
Union ), and John David Craft. The Respondent served its answer on May 18,
1965. The consolidated complaint alleged numerous violations of Sections 8(a)
and 2 ( 6) and (7) of the Labor Management Relations Act, 1947, as amended.
The alleged violations involved various acts of interrogation , threats, reprisal,
surveillance , and granting of or promises of benefits, all allegedly for the purpose
of interfering with organizing activities engaged in by Respondent 's employees and
to persuade them not to select the Union as their collective -bargaining representa-
tive. The Respondent , in its answer , admitted various formal allegations of the
complaint , the supervisory status of persons named therein , the announcement and
implementation of a job evaluation plan and the happening of an event (the dis-
tribution of a phonograph record ) but, to the extent that any violations of law
had been alleged , such violations were denied.
Prior to the service of the consolidated complaint , the Union , on March 24,
1965, had filed objections to conduct of the Respondent which allegedly affected
the result of an election held on March 17 and 18, 1965, for the purpose of
determining whether it would be selected as bargaining agent for Respondent's
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. The Regional Director, on June 15, 1965, issued a decision set-
ting aside the election and directing that a second election be held. The
Respondent, by its attorneys, on June 23, 1965, filed exceptions to the decision and
direction by the Regional Director.
The hearing on the consolidated complaint, which had been ordered to be held
on July 7, 1965, was duly convened on that day. In the meantime, the National
Labor Relations Board had granted the Respondent's request for review of the
Regional Director's decision, order, and direction of a second election and had
ordered that a hearing on 26 of the objections made by the Union be held. It
directed that the representation case be consolidated with the complaint cases and
that all cases so consolidated be heard together. Promptly on receipt of the
Board's order the Regional Director issued his order providing for such consolida-
tion. The Board's order was in telegraphic form and was received first by all
trial counsel and me on July 7, 1965, when the hearing on the consolidated
complaint cases was convened. I, by consent of counsel representing Respondent
and the Union but over the objection of the General Counsel, directed that the
hearing on the objections to the election be heard on an adjourned date. The
hearing on the complaint phase went forward July 7, 1965, continued on July 8
and 9, and would have been concluded on that day had the Board not granted
another appeal by Respondent for an opportunity to present the testimony of a
witness who, it was claimed, had been unable to be present at the July 7, 8, and 9
sessions. The adjourned date for the hearing on the representation phase of the
cases thus consolidated was set for August 11, 1965. By reason of the Board's
action directing that Respondent's additional witness be heard, additional testimony
on the complaint phase was taken at the August 11, 1965, session and, after an
additional session on August 12, the hearing in all the cases so consolidated was
concluded on August 13, 1965.
The General Counsel, by oral argument, summed up his position on the com-
plaint portion of the case on July 9, 1965, and, following the closing of the taking
of testimony, counsel for the Union and counsel for the Respondent submitted
briefs. The briefs submitted and the General Counsel's oral argument have been
read with care.
The Pleadings
The substance of the complaint and answer have been set forth generally in the
preceding portion called, "Statement of the Case." It is unnecessary at this point
to particularize the allegations in greater detail. These will become apparent in
my discussion of the evidence. As will appear, many of the allegations set forth
in the complaint are intertwined with and are cited by the Union in support of its
objections to the election. In addition, the main thrust of the objections to the
election is directed at the fears allegedly engendered among the employees by
publicity, radio broadcasts, and actions of civic leaders and prominent persons in
the community, all of which are claimed to have made it impossible for the
employees to make a free, considered, and independent decision as to whether or
not they wanted to be represented by the Union as their bargaining agent, plus
acts, demonstrations, and conditions existing in and around the polling place where
the election was held, plus the timing and manner of an announcement by Respond-
ent of its institution of a job evaluation plan and its intention to build a new
employees' cafeteria and, finally, the alleged implied threats and promises con-
tained in speeches made by Respondent's president and its executive vice-president.
The details of these objections also will become apparent in the discussion below.
The Issues
Again in substance , the issues are as stated in both the "Statement of the Case"
and the section entitled "The Pleadings ." In capsule form they are : ( 1) Did the
Respondent engage in such surveillance, interrogation , threats, promises , reprisals
and . . . granting of benefits as would constitute an interference with the rights
guaranteed to employees in Section 7 of the Act-" to self-organization , to form,
join, or assist labor organizations , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection ," and (2 ) were those
actions of the Respondent and the other conditions to which I have referred in my
summary of the objections of a nature which would require an order setting aside
the election and directing a second election.
JERVIS CORPORATION 269
Basic Legal and Policy Considerations Controlling the Determination
as to Whether an Election Should Be Set Aside
Because, as this proceeding developed, the overriding consideration has become
whether or not the election should be set aside and a second election ordered, I
deem it appropriate here to set forth some references to basic principles or policy.
(1) Section 8(a)(1) violations:
We [the Board] find no logic or sound reason for this disparity of treatment
depending on the nature of the proceeding in which the issue is raised before
the Board. Conduct violative of Section 8(a)(1) is, a fortiori, conduct which
interferes with the exercise of a free and untrammeled choice in an election.
This is so because the test of conduct which may interfere with the "laboratory
conditions" for an election is considerably more restrictive than the test of
conduct which amounts to interference, restraint, or coercion which violates
Section 8(a)(1). (Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786,
1787.) See also Leas & McVitty Incorporated, 155 NLRB 389.
(2) Campaign tactics and actions of the employer and the Union or Unions
involved:
We [the Board] believe that an election should be set aside only where
there has been a misrepresentation or other similar campaign trickery, which
involves a substantial departure from the truth, at a time which prevents the
other party or parties from making an effective reply, so that the misrepre-
sentation , whether deliberate or not, may reasonably be expected to have a
significant impact on the election. However, the mere fact that a message
is inartistically or vaguely worded and subject to different interpretations will
not suffice to establish such misrepresentation as would lead us to set the
election aside. Such ambiguities, like extravagant promises, derogatory state-
ments about the other party, and minor distortions of some facts, frequently
occur in communication between persons. But even where a misrepresentation
is shown to have been substantial, the Board may still refuse to set aside the
election if it finds upon consideration of all the circumstances that the state-
ment would not be likely to have had a real impact on the election. For
example, the misrepresentation might have occurred in connection with an
unimportant matter so that it could only have had a de minimus effect.- Or,
it could have been so extreme as to put the employees on notice of its lack
of truth under the particular circumstances so that they could not reasonably
have relied on the assertion. Or, the Board may find that the employees pos-
sessed independent knowledge with which to evaluate the statements.
(Hollywood Ceramics Company, Inc., 140 NLRB 221, 224.)
(3) Newspaper and radio or television broadcasting and activities undertaken by
influential or leading persons, officials, and groups in the area where a factory or
business is located:
In a recent speech, "A Freshman Looks At The NLRB" (Twelfth annual Insti-
tute on Labor Law, The Southwestern Legal Foundation, Dallas, Texas, October 28,
1965) Board Member Sam Zagoria made the following remarks:
There is another difficult problem for the Board-how to assure a free
choice by employees in a representation election despite strong community
feelings.. . .
The Board is expected to make this choice possible... .
There are communities . . . in which local officials, with an economic stake
in keeping the union out, shed any pretense of neutrality, detachment or objec-
tivity. Taxpayers' dollars are tied up in the factory buildings erected to attract
industry; tax exemption has been granted in some cases. From the organizer's
viewpoint it is easy to understand his feeling that `the whole town is ganging
up', and if it is, do the employees really have a free choice? How much
disavowing of community partisanship is an employer expected to make?
How much of such assistance can he accept with impunity? And apart from
his responsibility, what can the Board do to insure a laboratory-clean election
in such situations? Whether any particular community conduct makes such a
free choice impossible will, of course, depend on the circumstances of each
case, and perhaps on the extent of the activities.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An early case in which the Board was confronted with mass community action
opposed to organization of an employer, is P.D. Gwaltney, Jr., and Company, Inc.,
74 NLRB 371. There it was charged that a Board election had been "conducted in
the midst of a campaign of terror, intimidation and coercion, which prevented the
Employer's employees from freely exercising their voting privilege." Two local
newspapers actively opposed the Union. A leader in the community, who described
himself as an unofficial advisor to colored and white working people, advised
against the Union. A committee of local citizens, opposed to the Union, took it
upon itself to circulate and advertise numerous written exhortations and state-
ments opposing the Union and it organized a mass meeting at which emotional
antiunion speeches were made. There were injected into the campaign dire pre-
dictions of clashes between Klu Klux Klan and supporters of the Union plus var-
ious intimidations and threats by local citizens. After reviewing in much greater
detail than related here the events and happenings prior to the election, the Board
said, at 379:
This is not an unfair labor practice proceeding , but an investigation to ascer-
tain employees' desires concerning their choice of a bargaining representative.
Therefore, in appraising the facts and determining the Board's duty in the
premises, more is involved than the mere determination of whether or not the
Employer was itself responsible for the anti-union conduct which immediately
preceded the election . As already indicated , there is no convincing evidence
that would support a finding that the [objectionable acts of members of the
community] were the (acts of this Employer, within the meaning of the statute.
But that does not dispose of the case which relates to the validity of a Board
election, any more than would the fact that a hurricane or other Act of God
could not be attributed to an Employer necessarily lead to the conclusion that
an election conducted in the atmosphere created by such a natural phenom-
enon must be upheld as a true expression of the employees' desires. The
issue before us here is whether, under all the circumstances , this election was
held in an atmosphere conducive to the sort of free, unintimidated choice of
representatives which the Act contemplates. We find that it was not.
A much more recent case in which the Board was concerned with activities of
outsiders, which included, among other things, radio broadcasts, visits by union
opponents to homes of employees , advertisements in newspapers , and antiunion
activity on the part of the mayor of the city, is Utica-Herbrand Tool Division of
Kelsey-Hayes Company, 145 NLRB 1717. There the Board said at 1719:
The massive campaign conducted by third parties in the community re-echoed
and embellished [the employer 's statement to the effect that a strike was
inevitable and that economic development would be stifled if there was collec-
tive bargaining]. We note further the coercive elements present in the home
visits of local police officers and the mayor of the city, and in the distribution
of antiunion propaganda at all banks in the community . Such pressures,
although not emanating from the Employer, exerted a coercive effort upon the
employees ' free choice and , in conjunction with other conduct discussed above,
form a basis for setting aside the election.
In making the statement just quoted the hoard reaffirmed the position it had
taken in Gwaltney above and referred also to The Falmouth Company, 114 NLRB
896, and James Lees and Sons Company, 130 NLRB 290. In Falmouth there had
been activities of individual citizens , activities of a businessmen 's committee, a
local newspaper 's editorial opposed to one of the unions involved and a four-
column antiunion newspaper article published in the Louisville and Courier-Journal,
with a Falmouth dateline, which repeated rumors that the plant would close if the
AFL won the election. The Board held that there was no need to make a deter-
mination whether the employer participated in or activated these extraneous influ-
ences. It is said at 901:
[W]e find it unnecessary to, and do not, determine whether the
Employer and the businessmen acted in concert to defeat the Petitioner ... .
Such determination is not material. The important fact is that conditions
existed which prevented a free election. In accordance with our findings
herein, we shall set aside the election and direct that a new election be held.
In James Lees and Sons Company (above) the Board said:
[W]e agree with the Regional Director that the numerous statements
and conduct by various responsible groups and individuals in the community
JERVIS CORPORATION 271
reasonably conveyed the view to employees that in the event of union-
ization the Employer would shut down its plant and other employers would
not locate in the community. Accordingly we find that such conduct created
a general atmosphere of fear and confusion which precluded the holding of a
free election. We shall, therefore, set the election aside and order a new
election.
The foregoing are only general principles or statements. There are numerous
Board decisions which distinguish or justify a departure from them. The timing
of events and the opportunity for discussion, refutation and explanation all have a
bearing on whether the free choice to which employees are entitled has been
impaired. Another time element is that found in Peerless Plywood Company, 107
NLRB 427. There the Board established the rule that neither employer nor unions
would be permitted to make election speeches on company time to massed assem-
blies of employees within twenty-four hours before the scheduled time for conduct-
ing an election and that violation would justify setting aside the election. Still
another time factor which has to do with Section 8(a)(1) violations and their per
se effect on the integrity of an election, is that announced in Ideal Electrical and
Manufacturing Company, 134 NLRB 1275, 1278:
... [T]he date of filing of the petition [for election] rather than the issu-
ance of decision and direction [as had been the rule under F. W. Woolworth
Co;, 109 NLRB 1446] or of notice of hearing, should be the cutoff time-in
considering alleged objectionable conduct in contested cases . . . . [W]e
believe that conduct thereafter which tends to prevent a free election should
appropriately be considered as a postelection objection.
The lessons to be learned from all the foregoing are that although Section
8(a)(1) violations approach a per se status for setting aside an election and that
policy statements and principles are powerful guide lines, each case must be
decided on its own facts. This leads us to consideration of the facts in this case.
In the resolution of all issues with respect to which credibility of oral testimony
became a factor I have considered the demeanor and conduct of the witnesses, their
candor or lack of it, their objectivity, bias or prejudice, their understanding of the
matters concerning which they testified, whether their testimony has been contra-
dicted or sufficiently impeached, whether parts of testimony should be accepted
when other parts are rejected, consistency, plausibility and probability, and the
effect which leading questions might have had on the answers elicited thereby. I
have given careful consideration also to oral argument presented by the General
Counsel on the record and to the briefs submitted by counsel for the Respondent
and the Union.
Now, on the basis of the entire record, I hereby make the following:
FINDINGS OF -FACT
1. THE BUSINESS OF RESPONDENT AND JURISDICTION,
Jervis Corporation (Respondent) is now, and at all times material herein has
been, a corporation organized and existing under the laws of the State of New York
and it is engaged in the manufacture of automobile accessories in a plant located
at Bolivar, Tennessee.
The Respondent having admitted the volume and interestate nature of its busi-
ness as alleged in the complaint and also that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, I so-find.
U. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aerospace & Agricultural Implement
Workers of America , UAW, AFL-CIO (the Union ), is now, and at all times mate-
rial herein has been, a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED VIOLATIONS OF SECTION 8 (a) (1) OF THE ACT
This portion of the proceeding is sought to be established by the testimony of a
large number of witnesses, by references to an extract from a phonograph record
of a speech by Respondent's president, and by another speech by Respondent's
executive vice president.
272 DECISIONS OF NATIONAI LABOR RELATIONS BOARD
For a better understanding of my references to the oral testimony, I note briefly
here that the president's speech had referred to the fact that Respondent formerly
had had a plant in Memphis, Tennessee, which it closed a year after it had been
organized by the Union and that the executive vice president, in his speech, referred
to plans to build a modern cafeteria and made formal announcement of the insti-
tution and implementation of a job evaluation plan coupled with an employee
rating plan which would govern the job content and the wages paid for all opera-
tions in the plant. The phonograph record of the president's speech was distrib-
uted to all employees on March 9, 1965, less than two weeks before the election.
The executive vice president's speech was delivered on February 15, 1965, about
three days after Respondent had mailed to its employees a letter and booklet refer-
ring to and describing the job evaluation plan and just one month after the petition
for the election had been filed.
For better understanding of the oral testimony, I set forth a chronology. The
Bolivar plant was opened in July 1963. There seems to be general agreement that
some organizational activities started not very long after-that. C. E. Strickland, an
International representative of the Union, was assigned to Bolivar in April 1964.
The first organization meeting was held April 26. The first handbills were distrib-
uted May 29. The Union filed its petition for an election on January 15, 1965.
The Regional Director, on February 17, 1965, directed that the election be held.
The election was held on March 17 and 18, 1965. - -
A. Interrogation and surveillance
Norman Littlejohn, a former employee of Respondent, testified that in February
1965, Supervisor Derryberry asked him how many union cards had been signed.
Derryberry was not called to testify.
Another employee, Catherine Mae Ross, testified that Supervisor Robert Searles
had spoken to her six or eight times at 2-week intervals about the Union. She
says that he asked her why the girls were for the Union, that he said he knew 90
percent were for it and that he said, "We've got ways of knowing. We know every-
body that's signed cards." Although Miss Ross testified on direct that the remarks
quoted had been made in about January 1965, it developed that she had stated pre-
viously, in an affidavit for the Board, that her conversations with Searles started in
August 1965. Since her testimony is to the effect that they were at two-week inter-
vals, her reference in her affidavit to August as a starting date does not derogate
from her fixing of the specific questions as having been from conversations in
January 1965. Searles was not called to testify.
She testified also that entrance to her home was obtained under a pretext, in
early February 1965, by a man later described by her as being the personnel direc-
tor from Respondent's plant in Michigan. She said that he had asked her whether
she was in favor of the Union and that he had made observations suggesting that
the plant would be moved if the Union prevailed in the election. (In view of the
finding I shall make with respect to this fantastic recital, I shall not repeat below, in
the "Threats" and "Reprisal" sections, the reference to plant moving.) She testified
also to Respondent's Personnel Manager Vann Pettigrew's periodic and systematic
interviews of employees as to their feelings about the Company, their jobs and
whether they had any complaints or suggestions.
William H. Cooper, another employee, testified that Mac Farrell, a supervisor,
had asked him sometime in December how he thought the Union was going to
come out in the election. Farrell was not called to testify.
Joe Foster was a most unsatisfactory and incoherent witness and for that reason
I shall not go into the details of his testimony.
Farris Kiestler, another employee, told of a conversation with Floyd Sledge, a
supervisor, in the middle or latter part of February 1965. Sledge, Kiestler says,
either asked him in the form of an accusation whether he was for the Union or, by
the accusation, ascertained that he was. He says also that a week rafter this conver-
sation, Sledge accused him of talking Union on company time. Sledge was not
called to testify.
Another employee, John Thomas Johnson, testified to a conversation in mid-
January 1965 with Mac Farrell. He says that Farrell asked him how he felt about
the Union, whether he thought the Union would come into the plant and about
the number of employees who had signed cards for the Union. As noted before,
Farrell did not testify.
JERVIS CORPORATION 273
With respect to the foregoing testimony, I make the following conclusory findings:
In view of the fact that Supervisors Derryberry, Searles, Sledge, and Farrell were
not called to deny or explain the alleged conduct attributed to them and the further
fact that the testimony is not clearly unbelievable, since it stands uncontradicted on
the record the Respondent thereby interrogated employees as to their Union activ-
ities and engaged in surveillance of such activities not only before the filing of the
petition for the election on January 15, 1965, but also in that part of January fol-
lowing and in February as well.
I reject all the allegations and charges to the extent that they may be related to
Pettigrew's interviewing of employees at periodic intervals. I credit his testimony as
to the time elements involved in these interviews and their nature and content and
that they were conducted according to what I agree was an appropriate and pre-
established method for improving employee relations in the plant. (See also my
references to this infra.) The General Counsel's witnesses, by their testimony, show
that suggestions made by them during such interviews were given consideration and
were put into effect.
As to the strange visit alleged to have been made to Miss Ross's home, it could
be suggested that the Respondent ought to have called the two girls who had
engaged in the conversation whereby she concluded that the man who had obtained
entrance was the personnel director from Respondent's Michigan plant. I do not
regard Respondent's failure to call these girls or the Michigan personnel director as
being of any significance because I was not at all convinced or impressed by the
bizarre testimony with respect to this visit and the alleged event on the basi3 of
which she made her subsequent conclusion as to his identity. Moreover, the favor-
able impression made upon me by Respondent's high echelon officers leads me to
conclude that no such scurvy antic would have been tolerated or perpetrated. I
reject her testimony as to this visit.
B. Threats
Melrose Hamilton, an employee, testified to conversations had with Supervisor
Gene Hanks and with Supervisor Chuck O'Connor. After hearing and considering
her testimony and that by Hanks, which had to do with whether he had promised
that she would not be discharged if she quit working for the Union and whether,
some three months later, he had said if the Union came into the plant, the Com-
pany would move to Mississippi, I have concluded that Hanks should be credited
and that Miss Hamilton should be discredited. In any event, the sum and substance
of all their conversations seems to have been friendly small talk not of a threaten-
ing nature on the part of Hanks. She testified also that when she was oalled to be
informed about the job evaluation plan, Supervisor Chuck O'Connor made a remark
to the effect that there were too many good people around and that they were going
to beat the union organizer, Strickland, so bad that he would never show his face
around again. When referring to the O'Connor remarks, Miss Hamilton stated that
he had refused to answer a-question as to the Company's future intentions on the
ground that if he did there would be a case against him in Memphis (meaning the
Regional Office of the Board). I do not believe that a supervisor who was reluctant
to answer such a question would, in the next breath, go on to make any coercive
remarks or threats, assuming the remark quoted can be so regarded. Regardless of
what meaning is attributed to the remark, I reject the testimony and the inference
sought to be drawn therefrom and find that there was no threat here.
Employee Cooper testified that in about February 1965, Supervisor Charlie Jack-
son told him "You boys better watch it. You know what happened in Memphis."
This was amplified by later remarks credited to Jackson "You know they moved
from Memphis, you know, on account of the Union." Jackson was not called to
testify.
Joe Foster's testimony, as noted before, was most unsatisfactory. For that reason
I disregard the effort to prove by him an alleged remark by Foreman Cox suggest-
ing that the plant would move if the Union won the election.
I do not regard as a threat Kiestler's version of an alleged remark by Supervisor
Cranes suggesting that if the Company lost its contracts it might have no alterna-
tive but to move. I interpret this remark not as a threat to move but a speculation on
the possibility that, if the Company lost its contracts it would move. Kiestler testi-
fied also to certain remarks having been made during a Pettigrew interview relating
to the possibility of future expansion of the plant and the appointment of a local
243-084-67-vol 159-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager, both of which might not eventuate if the Company were harassed by a
union . This alleged conversation, it is claimed, was had in the latter part of Febru-
ary 1965. Having observed both Pettigrew and Kiestler on the stand, I am unwilling
to interpret Kiestler's version of this conversation, assuming that it did occur, as
being anything else but an innocent expression of opinion during the couse of a con-
versation which was part of a moral building program.
Employee Johnson testified also that Supervisor Mac Farrell had remarked to him
that if the Union won the election it would never get a contract with the Company.
It was brought out on cross that the conversation did not include any statement or
suggestion that the Company would not negotiate with the Union. Nevertheless,
language such as this may be regarded as a warning that the Company would not,
regardless of negotiations, ever make a contract with the Union. Additional testi-
mony by Johnson was that, at the time he was laid off, Supervisor Farrell told him
that if union activity continued, "All of us would be looking for a job." Such a
remark is tantamount to a threat that the plant would be shut down. Farrell was
not called to testify.
Employee Jones testified that three months before February 1965, at the time of
his discharge, he had a discussion with Supervisor Charles Jackson. He said Jack-
son told him that the plant would move again if the Union came in. He testified
also that Farrell had remarked that if the Union "got" or won the election, the Com-
pany would move to a spot in DeSoto County, Mississippi which it had acquired.
Testimony touching on the alleged threat to move was given also by Annie Edna
Burgess, but the remark attributed to O'Connor was merely a disclaimer of knowl-
edge as to whether the plant would move if the Union came in . I do not regard
this as a threat. She testified, however, that Supervisor Grady Baker, on the Mon-
day before the election, distributed "Vote No" signs and with apparent knowledge
of her position on the Union had told her, "You could be made to change your
mind." This was a threat and Baker did not testify.
Another employee, William Carl Whitten, told of a series of conversations with
Supervisor Claude Turner starting in mid-January 1965 and continuing until just a
few days before the election. The theme always was the same, that the plant would
move if the Union came in, that the Company already had a building in Mississippi,
that the people there would pay for moving the equipment, and that he hoped the
Union would be voted in because he preferred to work in Mississippi. Turner was
not called to deny these threats. I disregard Whitten's additional testimony that he
overheard a conversation between Supervisor Grady Baker and another employee,
unidentified, to the effect that the Company had left Memphis to keep from being
organized and would leave Bolivar for the same reason . Whitten did not participate
in this conversation and there is no way to assess or weigh the conditions under
which or the context in which the alleged remark, if made, was made.
Supervisors Charlie Jackson, Glenn Cox, Mac Farrell, Grady Baker, and Claude
Turner were not called to deny the remarks attributed to them. Such testimony
remains uncontradicted and is not beyond belief. I conclude, therefore, that the
Respondent did make the various threats recited and that such threats were made
both prior to and following the filing of the petition for the election, January 15,
1965. This conclusion, of course, is not based on any of the rejected testimony.
This division having to do with threats is not complete without a consideration of
a portion of the speech recorded by Respondent's president on a phonograph record
concededly distributed to all employees on or about March 9, 1965. It was broad-
cast as well over the local radio station and on the plant's loud-speaker system.
The portion of the speech on which the General Counsel relies to support the
charge that employees were threatened with loss of jobs if they selected the Union as
their bargaining representative for the most part gives what I assume is a true, fac-
tual recital of the Respondent's experiences with the charging Union in other areas
and asserts that, for economic reasons and because of inability to compete, these
plants had to be closed. The later remarks directly connected with the closing of
the Memphis plant, less than ninety miles away, and the loss of nine hundred jobs in
the Grandville, Michigan, plant where the charging Union represents the employees,
were:
We know that we had to shut the Memphis plant and we knew that we were
free to do so .... The result was that we did shut the plant as we knew we
must and as we knew we could and the people that the Union presumably rep-
resented, lost the termination pay which the Company had volunteered (but
which the Union rejected ). In our plant in Grandville, Michigan, this same
JERVIS CORPORATION 275
union has been with us for many years . It is no coincidence , as I see it, that
employment in that plant has dropped from a peak of 1200 people to approx-
imately 300 people while the UAW has been representing our employees.
It is axiomatic that the employer is a contestant for the votes of its employees and
has the absolute right to present any arguments or facts, even embellishments and
exaggerations, for the purpose of endeavoring to convince employees that their inter-
ests can best be served without a union, but such arguments must be free from "threat
of reprisal or force or promise of benefit." This limitation must be construed real-
istically and naked words may not be subjected to fine distinctions for the purpose
of obfuscating the message sought to be conveyed. The message here was clear and
its effect-even though 'the message was inconsistent and at odds with the Com-
pany's true intention, was to tell the employees (a) that if they voted the Union in,
the Bolivar plant would be closed as was the Memphis plant or (b) that in any
event there would be fewer jobs with the Union in than without the Union. So that
my questions would not appear distorted I refrain from underlining the words, "As
we knew we must and as we knew we could" and the words, "It is no coincidence,
as I see it, that employment in that ( Grandville ) plant has dropped from a peak of
1200 people to approximately 300 people while the UAW has been representing our
employees." This must have been a carefully constructed speech and the words
must have been carefully chosen. They are subject to alternative interpretations.
Employees who have an understandable concern for their jobs do not and will not
give such expressions analytical and critical thought. They do and will interpret
such words as their feelings and concerns are affected thereby. Respondent was
well aware of this human trait and sought by these carefully couched remarks (fol-
lowing as they did prior remarks about other Jervis plant closings ), to convey the
message-vote the Union in and we'll close the Bolivar plant just as we did the
Memphis plant and the other plants or take the risk of our cutting down employ-
ment at Bolivar in which event many of you are going to lose your jobs.
The employer must accept the responsibility not only for the precise words he
uttered but also for the meaning which those words would be given by the persons
to whom they are addressed. I find that by distributing the record and broadcasting
it in the manner shown the Respondent did threaten its employees with loss of jobs
if they voted to make the Union their bargaining representative and did thereby
interfere with their right to select their own collective -bargaining agent and their
right to act in concerted activities for the purpose of collective bargaining. On the
other hand , I do not regard the portion of the speech referring to the Grandville
plant, where was made the remark, "-[T]he union gets nothing that management
cannot afford to give and the union gets nothing that management will not give," as
saying that in that event there would be a strike . Brunswick Corporation, 147
NLRB 428, pointed out on pages 431 and 433 that the employer had told the
employees that if the union wanted more it would have to "call a strike!" The
quoted words from the speech were not followed by this prediction and so Bruns-
wick is not applicable. (The General Counsel made clear that he relied only on
the quotation from the record , General Counsel 2(b), and not on the entire record.)
C. Reprisal
The record discloses only one incident claimed to be a reprisal by the Company
because of an employee 's union activity.
The employee involved is Norman Littlejohn who testified on several matters. He
was an active worker for the Union , having engaged , during the period from
November 1963 to March 1965, in the distribution of handbills and the procuring of
signatures on authorization cards. His activities must have been known to the Com-
pany because they included handbilling at the plant gate. He claims that he was
unjustly disciplined because of these activities , the discipline being in the form of a
warning issued January 14, 1965 . He was an audit inspector , charged with the
responsibility of spot-checking accessories as they were pushed by his station on a
rolling skid. On the day before the warning he had audited a skid or skids carrying
mirror brackets. When those brackets had passed auditing by him it was learned
that the set screws had been inserted "upside down." His position is that he was
not required to check the screws in the brackets and that the line inspector should
have checked them but did not. A statement to this effect, endorsed by Littlejohn
on the record of the warning, establishes that the set screws actually were "upside
down ." The issue was not as to this but as to whether Littlejohn had the duty to
catch the defect . He claims he was given no instructions when assigned to the job
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but admits that he did have blueprints of the accessories audited by him and, as
testified on behalf of the Respondent and observed by me when I visited the plant
premises , samples of the various accessories were on display everywhere . I do not
credit Littlejohn 's testimony that he was not instructed in the duties of his position.
Further, if he was not required to make certain that there were no defects in the
accessories passing before him at least by spot -check auditing , there would appear to
be no reason at all for his having that job.
My initial reaction had been that , since his job was only to audit, it was conceiv-
able that he performed his job properly , but that a few of the defective mirrors
upon which he did not happen in the course of his spot -check, might have gotten
by. I am unable , however, ultimately so to conclude . In addition to accepting his
department head's testimony (Lichte ) that Littlejohn was instructed as to his duties
when he was assigned to the job, I accept also the testimony ("but it was enough to
be rejected") as establishing that there were so many defective mirrors on the skid
as to make it unlikely for an audit inspector, even if engaged only in spot-checking,
to fail to detect the defects.
Consequently , it is my finding and conclusion that the Respondent did not improp-
erly or unjustly make the record of warning to Littlejohn and that he was not so
warned with the object or purpose of interfering with his union activities. Para-
graph 19 of the complaint should be dismissed.
D. Promises of benefits
Littlejohn testified also that both Supervisors Derryberry and Sledge had made
promises of rewards which , it is claimed , interfered with his union activities . Super-
visor Derryberry is alleged to have suggested to him that if he left the Union alone
he would be a foreman in a year. This was in about the middle of January 1965.
Supervisor Sledge is quoted as telling him in March 1965, while he was handbilling,
that the future looked bright for him if he left the Union alone.
Employee Whitten said that, after the Kissinger February 15 speech , Supervisor
Gomicke called him and several other employees to his office for the purpose of
explaining the job evaluation plan under which he had obtained a 10 cent increase.
During the course of the conversation it is claimed he said that Respondent "was a
new company and, if given a chance, they would do this , that, and t 'other, you
know, if the Union didn 't come in ." With some straining , this type of testimony
might be interpreted as a promise of benefit for the purpose of influencing votes
before the election which was about to be held soon after that time. I believe, how-
ever, that it is too indefinite and uncertain upon which to make a finding of violation.
The uncontradicted remarks to Littlejohn attributed to Derryberry and Sledge, who
gave no testimony in denial thereof, clearly were of a nature which tended to inter-
fere with the efforts to assist or promote the organization of Respondent 's employees.
The construction of a new cafeteria (and the job evaluation plan to be discussed
below ) it is contended strongly, were broadside benefits aimed at all the employees
for the purpose of influencing their vote against the Union in the election In the
complaint it is alleged that the building of a new cafeteria was promised by Per-
sonnel Director Pettigrew on February 11, 1965, and by Kissinger in his speech on
February 15, 1965. I find it difficult to reconcile the strong language used in the
complaint for the purpose of setting forth this charge involving the cafeteria. The
complaint alleges that the Respondent "promised its employees certain benefits if
they refrained from becoming or remaining members of the Union or giving assist-
ance or support to it ( in that Personnel Manager ) Vann Pettigrew ( on) Feb-
ruary 11 , 1965-promised its employees that it would build a new cafeteria" and that
"Walter Kissinger (on) February 15, 1965, promised its employees that it would
build a new cafeteria ." The evidence in support of this charge hardly justifies the
conclusion . There was dragged out of employee Farris Kiestler that somehow or
other, he did not remember the words now, Pettigrew and he "got off on the Com-
pany expanding the cafeteria ," and then Kiestler summarized the conversation,
"Well we was supposed to get a new modern air -conditioned cafeteria . that the
plan had been made." But Kiestler promptly agreed that there had been rumors
about the cafeteria prior to that time and that during the interview Pettigrew had
spoken of other plans for expansion of the plant This was "in the latter part of
February" 1965. The allegation as to the alleged announcement by Kissinger is
even more tenuously proven. Here, reference is made to the Kissineer speech of Feb-
ruary 15, 1965. This was a speech , seven letter-sized pages of double spaced type-
writing, concerned mainly with a brief review of the progress of the Company since
JERVIS CORPORATION 277
the establishment of the Bolivar plant, a brief review of various improvements, all
introductory to a discussion, description, and explanation of the job evaluation
plan, which I shall discuss more fully below. In this speech among the introduc-
tory remarks about progress and improvements, there appears this single casual
sentence, "We have plans to build a modern cafeteria for you." The remark is so
casual and so wrapped up with other similar remarks that it hardly can be digni-
fied as an announcement and only a careful listener to the speech or a careful
reader would have been likely to take much, if any, notice of it.
The issue is: Was this "announcement" of the intended construction of the new
cafeteria so timed as to influence "no votes" against the Union? Although Melrose
Hamilton testified on direct that she did not know about the new cafeteria before
the Kissinger speech, she admitted on cross that it had been a matter of discussion
among employees before the speech.
Littlejohn testified that he had never heard about a new cafeteria before the Kis-
singer speech and Cooper and Whitten testified that they had no "official notice" of
the new cafeteria prior to the Kissinger speech. This type of testimony, from only
four employees in a plant of more than seven hundred is hardly sufficient to estab-
lish lack of knowledge on the part of the employees of the Company's intention to
build a new cafeteria. It is a familiar principle that the mere fact that some
people do not know about some things, or are not deceived by 'some statements or,
for that matter, were not interrogated or coerced by supervisors, is not relevant
testimony of probative value to establish the negative.
The matter of the cafeteria, I am satisfied, was one of the projects planned by
the Company and known by the employees months before the filing of the petition.
I have no reason to disregard Pettigrew's testimony that the construction of the
cafeteria first was considered by the Company in January or February 1964, and
that, by the middle of 1964 (as corroborated by an independent businessman from
Jackson, Tennessee), the Company started a search for a person qualified to run a
cafeteria. Although there is some fogginess about the date, it appears also that
the Respondent investigated construction costs before the fall of 1964 and actually
obtained an estimate from a local contractor. The fact that it might have had to
look to the county for cooperation, approval, or financing of the cafeteria does not
mitigate against the fact of its independent effort to ascertain what the construction
might cost because, whether the Company or someone else were to pay for it, pos-
sible costs had to be considered.
Pettigrew's testimony, credited as it is by me, is supported not only by other
testimony in the record but by documentary evidence as well. Before adverting to
this I should observe that it was common knowledge in the plant that there would
be a new cafeteria prior to these "announcements" and that witnesses in support
of the complaint admitted that there had been rumors to that effect.
Vice President Kissinger presented a graphic and understandable picture of the
growing pains of a newly established plant confronted with manpower difficulties,
difficulties about filling orders and meeting contract deadlines, installation of
improved machinery and equipment, and a rapidly expanding work force. The
broad range of problems and the difficulties encountered are understandable and
must be considered in connection with the manner in which company progress and
improvements was made known to the employees. Along with this must be con-
sidered as well the fact that almost from the establishment of the plant at Bolivar,
union activities came underway and within a short time thereafter an active pro-
fessional organization campaign was undertaken. If the thesis of the General Coun-
sel and of the Union were accepted, no new plant could expand or improve work-
ing conditions until after it was organized or an effort to organize was terminated
adversely. All that the Company did must be considered not in the nature of
forays or skirmishes with the Union, but according to what a company ordinarily
would do to build up a plant and get it into a competitive, profitable, and har-
monious working organization, regardless of whether this was being done during the
course of efforts to organize its employees or in the absence of such efforts.
With that background we find from Kissinger's testimony that although he was
first employed by Respondent in May 1964, he became concerned with the cafeteria
in June or July of that year He instructed the plant's then general manager to
conduct exploratory conversations with the county officials looking to the erection
of a new cafeteria. On August 5, 1964, there was a meeting of several supervisory
officers, attended by Kissinger, Pettigrew, Chuck O'Connor, and others. At this
meeting various matters involving personnel relations and plans for improving them
were discussed, including, among other things, not only the cafeteria but also the
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very visitation reports which were the results of the Pettigrew interviews discussed
elsewhere . In addition to the cafeteria , restrooms , parking facilities , air-conditioning,
and fans were discussed . The minutes of this meeting corroborate Kissinger's
testimony that he gave instructions that the matter of a new cafeteria, possibly
air conditioned and serving hot meals, was to be discussed with the county officials.
The cafeteria was only one of a number of major projects and , although impor-
tant, could not be pushed as rapidly as some of the other projects which involved
the improvement of or the installation of new production facilities . The desirability
of a cafeteria and the need for it for a plant having hundreds of employees with
only limited restaurant facilities in its geographic area, which facilities were not
easily accessible to the employees , ought to be obvious. We do not need Kissinger's
testimony about his concept of good employee relations as justifying the plans for
and the ultimate construction of a cafeteria . Taking into consideration the variety
and the complexity of the problems with which management was confronted, the
very early steps taken toward the construction of the cafeteria , the fact that before
the dates of the so-called "announcements " by Pettigrew and Kissinger , the employ-
ees were aware of the fact that there would be a new cafeteria , the jurisdictional
problems as to approval of funds for the cafeteria ( the county government vis-a-vis
the Company ) and the production problems which had to be met and overcome,
and finally the fact that at the time of the hearing in August construction of the
cafeteria was well under way, I am unable to conclude that the remarks attributed
to Pettigrew and to Kissinger were promises of benefits to the employees if they
refrained from becoming or remaining members of the Union or giving assistance
or support to it, and I find that at best the " lannouncements" were only casual
observations of continuing progress being made and confirmation of information
already in the possession of the employees.
Whatever has been said with respect to the general conditions and problems with
which Respondent was confronted in connection with the cafeteria applies with
even greater force to the job evaluation program . It is true that the Kissinger
speech explaining the job evaluation program was made on February 15, 1965, and
that this followed within a few days a communication from the Company to all its
employees to the effect that the job evaluation plan was about to be put into effect,
which communication was accompanied by a booklet explaining the operation of
the plan . It is true also that on January 15, 1965, the Union had filed its petition
for an election. It happens also that on February 17, 1965, 2 days after the
speech, the Regional Director ordered the election to be held . The question is,
were the written communications to the employees and the February 15 speech so
timed and conceived as to persuade the employees not to become or remain mem-
bers of the Union or not to give assistance or support to it . Here again we must
review the manner in which the job evaluation program was developed in the
Respondent's plant. Before coming to the details of this, I note once more that
the employees were aware long before the wiitten communication and the Kissinger
speech of the fact that a job evaluation plan was being developed . The facts show
that they could not have helped having had this awareness apart from the admis-
sions by witnesses called in support of the charges and the affirmative testimony by
witnesses called by the Respondent.
Again, needless to say, we do not require Kissinger 's testimony to tell us that in
a plant with hundreds of employees and possibly dozens or more of different
operational job functions , some job evaluation program is absolutely necessary for
the running of the business . This was one of Kissinger's first concerns and cer-
tainly he would have been derelict in his responsibilities if he did not give earnest
and prime consideration to the setting up of job classifications and job functions.
Only one month after being hired by the Company (in June 1965) he communi-
cated with a prominent consulting firm having to do with job evaluations and
plant management . Its representative visited the Bolivar plant in the middle of
August 1964 , but because of its high charges , its own time commitments and
because management of the Bolivar plant was being changed with the hiring of
McGuire, the new plant manager, that firm was not retained . Kissinger, by reason
of his prior business association , under-took arrangements with a management
association which had within it a division capable of setting up job evaluation plans.
A formal proposal from this association was made on October 19, 1964, and, within
a few days the association was authorized to start a survey for the purpose of
setting up a job evaluation program.
Now commenced an activity with respect to the job evaluation program which
was of a nature that the employees at Bolivar if they did not become aware of the
JERVIS CORPORATION 279
fact that a job evaluation program was going to be introduced at the plant would
have had to be so ignorant to defy one's imagination . One of the association's
consultants spent 6 days at the plant, October 26 , 27, 28 , 29, 30, and 31, accom-
panied by a member of the plant's "methods and time studies" division . Together
they wrote up job descriptions , conferred with foremen and superintendents, and
the jobs and job functions of from 750 to 800 employees were observed and studied,
resulting in the setting up of some seventy-seven classifications . All this was done
right in the plant and among the employees during their working hours. On
December 15, 1964 , three copies of the job rating survey, together with an explana-
tory letter , were sent to Bolivar 's manager, McGuire. On December 15, 1964, and
under separate cover at the same time, as an aid, the association 's Industrial Rela-
tions Monograph on Job Rating was sent . Less than a week after McGuire would
have received it, Kissinger had a conference with the association 's vice president in
charge of engineering services and additional data with respect to grade structure,
costs , and administration of the program were sent to him in a letter dated Decem-
ber 24, 1964. The entire job rating survey covering all the jobs and the grades
within the jobs, comprising a bound volume approximately three-fourths of an inch
in thickness , was delivered in December 1964. Automatic adoption of the recom-
mendations was not to be expected . It had to be determined , first, whether the
program would work and, second , whether the board of directors of the Respond-
ent would accept it and have it control all the operations of the Bolivar plant. To
do this it was necessary to have a pilot installation . The pilot experience was
obtained from the implementation of the program in the die cast department in
about the middle of December 1964 . The employees of that department were
called in and informed about the program and how it would work and affect them.
Some of the employees , but not all , received increases in pay by reason of it. It
did not happen suddenly in the die cast department for as Clifford, the die cast
and trim shop superintendent , testified , he had been familiar with it, knew a week
or 10 days before it became effective that studies had been made for it and in mid-
December, he had been notified that it was going to be effective. Any employees
around the plant, not in the die cast department , surely could have and presumably
did know what was happening there with respect to job evaluation once the employ-
ees there became affected by it . Obviously it was no secret and the information
about it was not being hidden from the employees to be sprung on them at some
critical date in the future.
The Company had a plant newspaper which had been distributed at monthly
intervals from time to time. This newspaper, which had disclosed in its August
issue the fact of Pettigrew 's personnel interviews and the solicitation of suggestions,
high level communications of company progress and the appointment of McGuire
as manager , did, in its December 1964, issue, make specific announcement pointing
out that , as had been within the knowledge of the employees , a job evaluation sur-
vey was being conducted . It was mailed to the employees on December 23, 1964,
and said, "All the data is now being compiled and all jobs will be rated on a fair and
equitable basis. As portions of the program are completed we will move ahead as
we have done in the die cast department."
(Incidentally in this same issue the Company announced an additional paid holi-
day and the fact that a full-time registered nurse had been employed and that an
assistant personnel manager drawn from the local population had been employed.)
Following the pilot program in the die cast department the overall program was
given additional consideration and within the 30 or 40 days following , the entire
plant became subject to it. The transmittal of the notification and the additional
explanatory speech by Kissinger were consistent with what appears to have been
the Company's established practice of keeping the employees informed as to what
was happening at the plant and it is not unreasonable to say, as the Respondent
says, that the manner in which it came to make the formal announcement of the
actual implementation was a normal step in the growth of the plant. On the
matter of timing , I am unable to find that the timing was in any way geared to
the fact that a petition for an election had been filed or the future fact that the
election was directed two days later. As a matter of fact, bearing in mind that
the job studies had been in progress for months, that the pilot installation had been
made in the die cast department in December , and that the company plant journal
had confirmed to the employees that the job evaluation program was being planned,
there is a grave question as to how long the Company could have delayed imple-
menting the program and making it effective for the entire plant without risking
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
serious employee dissatisfaction and questioning about the sincerity of its promises
with respect thereto. Moreover, if it had delayed the implementation until after
the election, it certainly might have been confronted with the charge that it was
awaiting the outcome of the election to determine whether it would put the pro-
gram into effect. Finally, the job evaluation program in all its facets did not
result in pecuniary benefits to all its employees. Numerous employees did not
receive pay increases by reason thereof.
Consequently, on the basis of all this and having taken into consideration all
the time elements involved, I am unable to conclude either that by its written noti-
fication of February 12, 1965, or by the Kissinger speech of February 15, 1965, or
by reason of the fact that certain employees might have received wage increases
pursuant to job reevaluations, the Company sought to influence its employees not
to become or remain members of the Union and not to give assistance or support
to it, or that it thereby interfered with the organization activities of its employees,
or that it sought to influence thereby their voting in the election shortly to be held.
On the contrary, I find that the Company, by engaging in the job evaluation study
and by placing it into effect at the time that it did, did so in the normal and usual
course of business and in a manner consistent with prudent and acceptable business
practices.
In summary, therefore, I am of the opinion that all charges so far as they relate
to the cafeteria and the job evaluation program should be dismissed.
The Union's Objections to the Election
The Union filed objections to the election, requesting that it be set aside, and
prefaced its objections with the statement, "Since on or about January 15, 1965,
the Company and its agents destroyed the Union's majority status by their
actions set forth as follows." This introductory statement is followed by 38
specifications which, by reason of the manner in which they are introduced assume
two postulates-(1) that the Company directly or by its agents committed the
acts set forth in the specifications, and (2) that the Union did have a majority sta-
tus which had been destroyed by the acts of the Company and its agents. At
the outset I think it advisable to make clear, first, that whatever specifications may
be sustained, the fact that they are sustained does not and should not be regarded
as a finding by me (unless expressly so stated) that the acts therein set forth
were committed by the Company or its agents, and, second, that there is any
evidence whatsoever in the entire record of this case that the Union at any
time did have a majority status which was or could have been destroyed.
Instead of lumping or grouping the specifications in the manner adopted by the
Union, I believe that it may be preferable for me to take each separately and
state my findings with respect thereto at each such interval. To the extent that
any specification has been treated in the complaint portion of this Decision, I
shall not engage in any further discussion of it but shall content myself merely
with noting that fact. In my consideration of the specifications or objections, I
assume that the Board's Order granting the Employer's petition for review requires
that I consider each de novo. For that reason I have not considered the Regional
Director's Supplemental Decision and do not by my Decision venture to engage
either in a review of his actions or reasoning or utilization of it as a basis for
any finding or conclusion with respect to the objection.
0
1. Threats of plant moving if Union was voted in
This has been covered in the complaint portion of this Decision.
2. Threats of loss of jobs to working employees who were
union supporters if they supported the Union
This has been covered in the complaint portion of this Decision.
4. Threats that plant would move if Union came in and taxes would
be raised to pay balance due and owing Hardeman County
The Company had nothing to do with this except to the extent that it reaped the
benefit thereof in its campaign against the Union. There was publicity to this
effect and this publicity will be treated at greater length below.
JERVIS CORPORATION 281
6. Threats of loss of job and plant moving through Hardeman County
newspaper, The Bolivar Bulletin
The Company had nothing to do with this and the contention will be discussed
generally below.
7. Threats of plant moving by Hardeman County officials, Bolivar city officials and
various business men through pamphlets and personal contacts with the unit
employees, both on and off company property
The Company had nothing to do with this and, to the extent that writings were
involved, the contents will be discussed below. There were personal contacts with
the unit employees to the extent that writings were handed by city officials and
various businessmen to such employees. Substantially all of this was done off the
company property and the only exception appearing in the record is the insignificant
intrusion beyond the plant gate on one or two occasions by Judge Frost during
the course of his distribution of antiunion pamphlets while shifts were changing.
This was denied by the company guard, but if it did happen, it was as I have said,
insignificant There is uncontradicted testimony that Judge Frost told certain
union officials, not employees generally, that the plant would move away if it
was organized. This was during a conference between the union officials and
Judge Frost. It appears that Judge Frost was convinced finally that even if the
Company did move, the county would be able to collect its advances for construc-
tion from the Company. There is no evidence of any direct personal contacts
with the unit employees by county or city officials or businessmen. The Company
did not authorize or sponsor any of these threats. The contents of the pamphlets
will be discussed below.
9. Threats of plant moving by the Loyal Employees Committee through
leaflets during working hours
The Company had no responsibility for and did not authorize the "LOYAL
EMPLOYEES COMMITTEE" to distribute leaflets containing threats of plant
moving, but the leaflets themselves created such confusion in the minds of employ-
ees that even one of the company witnesses testified that such leaflets had been
issued by it.
10. Threats of plant moving through a recording made by Company President
Harman, handed to working employees and mailed to laid off employees
This has been covered in the complaint portion of this Decision.
11. Threats of plant moving by playing President Harman's record to
working employees on company P.A. system
This has been covered in the complaint portion of this Decision. The record
was played on the Company's public announcement system during a lunch period
but there was no violation of the rule of Peerless Plywood Company, 107 NLRB
427.
12. Threats of plant moving by playing President Harman's record over the local
radio station, WBOL, on at least six different occasions before and during
election
This has been covered in the complaint portion of this Decision insofar as con-
tent is concerned. Peerless Plywood (above) was not violated thereby.
13. Threats of plant moving and subsequent increased taxes by Loyal Employees
Committee by handbtlling working employees with the group mentioned in
in point number seven
This specification is linked in the objections together with specification 7, and
what I have said with respect to specification 7 should be regarded as applicable
as well to this specification. Similarly, what I have said with respect to specifica-
tion 9 should he regarded as applicable.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14. Threats of plant moving by radio station WBOL commencing on or
about March 13 and continuing through the election
Radio station WBOL engaged in no such threat and, to the extent that some
spot announcements had not been identified by sponsor, it is my conclusion that
the failure to identify as ascribable only to inadvertent omission. To the extent
that there were antiunion broadcasts immediately prior to and during the election,
there is no evidence that such broadcasts were heard in or anywhere near the
polling place.
15. Threats of plant moving by Interested Citizens of Hardeman County
through radio station WBOL
The Company had nothing to do with these alleged threats and the additional
comments with respect to specification 14 are applicable as well to this specification.
17. Promises of promotion if employees denounced and voted
against the Union
This has been covered in the complaint portion of this Decision.
19. Promises of higher wages and other increased benefits if
Union lost election
This has been covered in the complaint portion of this Decision.
20. Granting wage increase to most employees on or about February 18,
1965 which commenced on or about March 1, 1965
This is wrapped into my discussion and findings above with respect to the job
evaluation plan. Not all employees were granted wage increases. The conclu-
sion I have made with respect to the job evaluation plan is applicable as well to
this specification.
21. Granted Loyal Employees Committee and other antiunion employees time off
with pay to pass out leaflets "Vote No" insignia and antiunion petitions for
signatures
There is no credible evidence of probative value in support of this specification
and my comment on specification 22 below concerning the conduct of employees
is equally applicable to this specification.
22. Supervisors and office clerical handbilled employees during working hours,
secured signatures on antiunion petitions and gave employees "Vote No"
insignias
I am not satisfied by the evidence that supervisors actually did engage in hand-
billing, but to the extent that certain of the testimony may be credited, any such
conduct on the part of supervisors should be regarded as legitimate campaigning
during the preelection period. I find specifically that no supervisor secured signa-
tures on antiunion petitions. To the extent that there was handbilling and anti-
union electioneering by employees during working hours, I find that there was no
"no-solicitation" rule and find as well that union adherents engaged freely in
similar activities during working hours.
23 Bulletin boards used to misinform and threaten employees with plant
moving, strikes, dues, fines, initiation fees, and assessments
No evidence was offered in support of this specification.
24. Interrogated employees about their union sentiments during working
hours and at other times
This has been covered in the complaint portion of this Decision.
JERVIS CORPORATION 283
27. Permitted antiunion employees to pass out to other employees ' during working
hours, literature injecting the racial and Communist issues by accusing the
Union its -leaders and others of being pro-civil rights and pro-Communists
I recall nothing from any of the evidence presented at the hearing to support
a finding that any racial or communistic issues were injected into the campaign.
28. Placed antiunion literature , signs, and slogans in the hands of voters
during working hours
The Company engaged in no such practice. To the extent that individual
employees might have engaged in that practice, there is no evidence that the Com-
pany was requested to do anything about it and there is no suggestion that union
adherents were prevented from engaging in similar practices.
29. Permitted and participated in an antiunion parade immediately prior to
election which encompassed the voting area
This was a spontaneous demonstration on the part of employees about which
theie is varying testimony with respect to size or volume and time consumed. I
find however that the antiunion parade, which actually did transpire, was inde-
pendently organized by and participated in by employees without sponsorship,
encouragement, organization, or authorization by any company official or super-
visor . 'While the good taste of the parade was most questionable , there was
nothing disorderly about it and there was nothing about it which could be
regarded as a means of intimidation or coercion . Moreover for a more outrageous
demonstration , not condemned , see Sewanee Coal Operators' Association, Inc.,
146 NLRB 1145.
32. Wore antiunion signs in and around voting area during the election
This specification is not clear as to who wore the antiunion signs. To the
extent that the introductory material or preface to all the specifications may be
regarded as alleging that company officials did , I find that no company official or
supervisor wore such signs. To the extent that any individual employee wore
any "VOTE NO" sign within the voting area I find that such conduct in and of
itself is not of a nature which has been regarded as having an improper influence
on voters exercising their franchise.
33. Permitted antiunion employees to sit around immediately adjacent
to polling place with antiunion signs during election
Some employees both antiunion and prounion did from time to time enter the
luncheon area for the purpose of eating their lunch or awaiting the beginning of
their shift . To the extent that this is sought to be made to appear as having had
a bearing on the election, I find that , in view of the long period of time during
which the campaign was waged and the further fact that both the polling area and
the luncheon area were physically a part of what was normally the overall lunch-
eon area, there could have been no effective impact and the condition was unavoid-
able. The vice , if any, that some entered there during the voting period is attrib-
utable only to the choice of the polling area. In any event, however, I repeat that
this fact alone had no impact on the freedom of choice guaranteed to employees in
a Board election.
34. Placed large antiunion ' signs and banners around polling area
There is credible evidence that there were antiunion signs and some banners
on display in various places not far from the polling area. Having inspected
personally the physical conditions prevalent there , it is my conclusion that such
signs and banners could have had no immediate and consequential effect on any
voter for the reasons that this had been , together with prounion electioneering,
their constant diet for many months before and, insofar as visibility from the
polling area may be concerned, they would have had to engage in some extra-
ordinary neck-stretching and twisting to see them from that area. Employees
going to that trouble for the purpose of reading such signs would have done so not
because they were undecided how to vote but only because of their curiosity, antip-
athy, derision , or sympathy with respect thereto.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
37. Allowed antiunion literature to be stacked up both inside and outside
polling area before and during election
I find no credible evidence of probative value to support this specification.
Before addressing myself to the literature, newspaper editorials, newspaper
articles, and the radio broadcasts, I refer briefly to the divergent views in General
Industries Electronics Company, 146 NLRB 1139. This is the case in which the
dissenter contended that where individual aspects of conduct viewed separately do
not constitute interference with an election, there is no warrant for concluding
that the whole is greater than the sum of its parts-to which the majority responded
that all such parts can be added together and where the sum total constitutes a
clear message sought to be imparted to the employees, that sum total does add to
something which may be justification for setting aside an election. I would add
to this only that each of a hundred different scratches on a person's body may
not separately result in a person's death, but if the entire one hundred happened
at one time that person might bleed to death.
I also make the express finding that the campaign was a hard-fought campaign,
that whatever charges or arguments were made against the Union were made at
times during the campaign when the Union had ample opportunity to refute or
explain them and that the Union did engage in voluminous and powerful hand-
billing and pamphleteering in response to that against it. With respect to the
Union's complaint that it did not have the opportunity to utilize the local radio
station, I find specifically that such lack of opportunity as it suffered was not con-
trived by Respondent and was due only to the Union's belated attempt to utilized the
radio and reasonable and proper restrictions by the radio station on the utilization
of spot broadcasts and commercial broadcasting. Further, this is not the forum
for determining whether the radio station engaged in unfair or improper activities
which might more properly be the concern of the Federal Communications Com-
mission I find affirmatively that the radio station, although it might have exhibited
bad judgment in allowing the antiunion interests to buy up as much of its avail-
able advertising time as it did, did not engage in any conduct chargeable to the
employer when it refused to accept the additional spots requested by the Union.
Without thereby judging the propriety of the radio station's conduct in refusing
to accept additional spot broadcasts from the Union, I find that, in allowing
15-minute intervals between spot broadcasts, the radio station in fact did not have
additional available time for sale to the Union.
With respect to conclusory findings expressed above and not dealt with directly
in the complaint portion of this Decision, it is appropriate that I make certain
observations with respect to the oral testimony given in support of and in opposi-
tion to the objections. I am satisfied from the testimony given by the owner of
radio station WBOL that this station, like all other radio stations, has program-
ing problems and that the necessities resulting therefrom rather than discrimination
against the Union created the difficulties with respect to which Messrs. Strickland
and Starling were confronted when they sought to obtain advertising time on the
Monday afternoon preceding Tuesday and Wednesday, the days of the election.
I do not believe that either the radio station or the Respondent should have any
adverse inference drawn against them because of the station's ultimate resistance
to the Union's demand that it be given equal and free time to present its argu-
ments over the station's broadcasting facilities.
Strickland and Starling, as well as several of the union employee witnesses,
admitted that union electioneering was conducted on the plant premises and on
company time.
Farris Kiestler and Catherine Mae Ross were principal and standby witnesses
on behalf of the Union. While some of their testimony has been accepted as
credible by me, both of them colored their testimony with a broad brush and
tended, in my opinion, to engage in numerous exaggerated and farfetched pres-
entations. I reject entirely Kiestler's testimony as to his conclusions with respect
to the stage of construction of the cafeteria at the time of the hearing. In any
event, as I view the entire point relating to the cafeteria, I regard the actual stage
of construction at the time of the hearing as being irrelevant.
I do not credit Glenn's testimony about the participation of supervisors in the
parade but on the contrary credit that of Clift to the effect that there were none.
Clift made a'very favorable impression on the witness stand and was straightfor-
ward and unshaken in his testimony. Sue Chumney, Carol Dial, and Don Carter
corroborated Clift's testimony. Additional testimony by Glenn as to conditions in
JERVIS CORPORATION 285
and about the voting area is not only difficult but rather impossible for me to accept
because I cannot believe that the Board agents assigned to conduct the election
could have been as negligent or as derelict in their duties as could be implied from
Glenn's testimony. I understand, of course, that pamphlets or literature, both pro-
union and antiunion, might well have been found scattered on the floor of the
voting area. This fact in and of itself, while disturbing, is easily and naturally
attributable to the fact that voters at any election do carry printed material of one
kind or another relating to the election into the polling places and carelessly dis-
card it without regard to proprieties which ought to be observed. Glenn, despite
having worked for the Company for two years, demonstrated a strange inability to
recognize persons in the parade but he was positive in his testimony that supervisors
were. He admitted to the fact that some employees normally come to work early
and spend their free time in the lunch area.
While Catherine Ross testified that Supervisor Grady Baker gave her a "VOTE
NO" sticker, her other testimony about the conditions at and around the polling
place, like that of Glenn, appears to be so exaggerated that I have concluded not
to credit her testimony in this connection about Grady Baker, even though Baker
was not called to rebut it Her own testimony to the effect that the litter on the
floor was not there when the election started demonstrates that if in fact there
was such litter, as undoubtedly theie might have been, it was the voters themselves
who carelessly dropped it during the voting. Illustrative of her willingness to
misstate the facts is her ultimate admission that she herself spoke to employees
about the Union during working time, contrary to what she had testified on direct
The testimony of Buigess (unlikely as it was on its face) to the effect that
Respondent's attorney had told a voter on the way to vote that the voter was too
nice a girl to be on the wrong side (meaning the union side) was effectively
destroyed by this voter's clear and forthright testimony to the effect that there
actually had been such a conversation but that it had been after the election.
I ani peisuaded by Pat Record's testimony that, while the parade to which the
union witnesses testified was conducted, it was a spontaneous action on the part
of the employees without sponsorship of any supervisory official and that it was
conducted during the lunch period. To the extent that, as testified by another
employee witness, the parade might have overlapped the lunch period by some
five or den minutes, experience teaches us that if in fact it did, this was a not
unnatural lag and is not ground for concluding that the Company thereby fostered
the parade on company time.
I am not at all satisfied by Plant Manager McGuire's testimony that the Com-
pany effectively disavowed the rumors that the plant would move from Bolivar if
the Union won the election. On the contrary, I believe that the speech which he
gave on March 11 with respect to this problem was an equivocal speech. It did
not make clear enough or strong enough the fact that the Company had no
intention to move. There was no definite disavowal of the rumors There was
no definite assurance that the Company would not move. A remark to the effect
that "No responsible company official has stated that this Company would move
from Bolivar" is not a denial that the Company would move. On the contrary,
it is susceptible to the interpretation that although no responsible company official
had made any such statement, the Company reserved its right to make a decision
on the matter, one way or the other at some future time.
Sue Chumney in her testimony demonstrated the confusion which must have
been engendered in the minds of many employees. She was called by the Com-
pany and she testified that literature distributed by employees or the loyal employ-
ees committee was "handed out" by the Company and that when she referred to
the loyal employees committee she meant the Company.
This brings us to a consideration of the war by liteiature. This was in the form
of handbills, newspaper advertisments, articles, and an editorial Although I have
referred to Sue Chumney's testimony indicating that employees were confused as
to whether certain antiunion literature was issued by the Company, I find nothing
in the evidence which would justify the conclusion that any of the evidence to
which I am about to refer was sponsored, paid for, or issued by the Company
excepting only that literature which I relate directly to the Company in my
discussion.
The March 4, 1965, issue of the newspaper, the Bolivar Bulletin, had two large
advertisements purporting to be an exchange of correspondence between parents
and a son, but concededly fictitious. The Chamber of Commerce was responsible
for their insertion. They covered the entire right vertical half of a page. Except
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the fact that there is speculation in the son's letter to his parents that the Jervis
plant might move farther south if the Union were voted in, these advertisements
follow the usual line of election propaganda. The same issue of the bulletin has
on its first page both an editorial and -a news article. The news article is factual
and the editorial, while obviously antiunion, is not inflammatory nor legally objec-
tionable. The March 11 issue contains an advertisement sponsored by "The Non-
Union Actuator Line," not connected to the Company, 6 inches square. It defi-
nitely suggests the possibility that employment will be lost if the Union wins the
election. It says, among other things, "On March 17 we will have a say so of
whether we still have a pay check to pay our bills or not. If we vote YES we
stand a chance of losing it-if we vote NO our bills will still be paid." The other
side of this page has three little squibs containing only informational propaganda
as to desirable working conditions at Jervis. These and a number of similar squibs,
appealing at other places in the newspaper, were paid for by the Chamber of
Commerce. Another first page of a section of the Bolivar Bulletin of March 11,
1965, contains a factual and unobjectionable statement about the election. Page 2
of that issue, in addition to containing another one of the squibs to which I have
referred, contains a quarter page advertisement in the form of a letter from a
father to a son (fictitious as were the other letters) and repeats the implication that
Jervis might move if the Union won in that its next to the last paragraph is, "If the
Union should win this election, and then if Jervis Corporation should have to
leave Bolivar, what would you do about paying debts?"
So much for the newspaper publicity , and now we come to the pamphlets or
handbills. There is a handbill entitled "To All Employees of Jervis Corporation,"
the writers of which disclaim any association with Jervis and identify themselves
as persons interested in community progress and individual welfare. It suggests
the possibility that if the Union wins the election and the Company moves, the
county would have to pay for the improvement bonds issued and the tax rate
would be increased by 75 cents for the next 20 years. It contains as well a
mathematical projection of what union dues might buy, a prediction that new
factories would not move into the area, a statement that the Union sets production
standards and rules and that students graduating from school will need jobs which
will not be available if the Union wins.
Another handbill entitled, "Attention Fellow Employees," presumably issued by
antiunion Jervis employees, definitely suggests that the Company may move if the
Union wins and reminds the employees that the Company moved from Memphis.
A Chamber of Commerce handbill, entitled "Questions to Ask," while stimula-
tive of antiunion feeling, is nothing more than reasonable propaganda . The same
is true for another pamphlet , issued by the Company, containing six "IF" remarks,
all followed by the admonition, "VOTE NO." This too is normal, unobjectionable
electioneering propaganda. Another handbill, issued by the Company, "Don't
Make a Mistake ," is unobjectionable electioneering as is a company issued sim-
ulated $60 bill, truthfully referring to the $5 a month union dues to which the
employees are urged not to subject themselves . Another handbill , in the form
of an eight box comic strip ( also said to have been issued by the Company),
carried the message that union officials and organizers have a callous disregard
for the welfare of employees and are concerned only with their own jobs and wel-
fare. There are three additional Loyal Employees Committee handbills, all not to
be condemned , one entitled, "FLASH," and a second entitled , "Dear Loyal Employ-
ees," both deriding union organizers, and a third entitled, "What Trend Is On," to
the effect that the Union was losing ground in its campaign and that elderly
people could and did find employment at Jervis. Finally, there is a last day hand-
bill entitled, "The Campaign Is Over ," urging the employees to vote "no" for
themselves and for Jervis . This is one of the pieces of literature said to have
been among the litter on the floor at the polling place on the day of the election.
Thus, in summary, except for those writings which I have characterized as
objectionable, the literature was consistent with Section 8(c) of the Act. Further,
I find that with the exception of the last day handbill (which really required no
reply and which technique equally was available to the Union) the Union had
ample opportunity to reply, rebut, evaluate, and explain (as will appear it did) any
of the propaganda against it. While the Union was unable to do the same with
respect to the radio broadcasts, its inability to do so is attributable solely to its
own failure to make timely application for radio time.
In addition to its ability to use its own great resources and professional organizers,
the Union was aided in its campaign by the Amalgamated Meat Cutters and
JERVIS CORPORATION 287
Butcher Workmen of North America which had a local representing the employees
of the International Shoe Company's Bolivar tannery.
Illustrative of its own aggressive campaign and its ability to combat the
campaigning against it are the following:
In the March 11 issue of the Bolivar Bulletin an advertisement 61/z inches by
141/2 inches was placed by the president of Memphis Labor Council and other
persons who were officials of the Amalgamated's Local at the International Shoe
Company's tannery. This had the banner headline, "ARE UNIONS NECES-
SARY." It undertook to answer specifically every argument which had been made
in the editorial mentioned above, as well as general allegations which had been
made throughout the campaign. It denied that employees who organized into
unions are gripers, lazy and shiftless, without concern for their jobs or the com-
pany which employs them. It alleged that the tannery local's officers and mem-
bers were leading citizens of the county, that when the tannery had been organized
15 years before minimum wages were 75 cents per hour as opposed to "well over
$2 per hour" being paid in March 1965, that this increased buying power had
benefited the entire county as well as the newspaper which published the editorial,
that there is a good working relationship between the union and the International
Shoe Company for the purpose of expanding and making the business more profit-
able, that unions are concerned that companies run at a profit, and that this con-
cern is evidenced by occasional voluntary wage cuts to enable companies to com-
pete, that unions have contributed to making this country an economic leader
among countries in other parts of the world , that wages at Bolivar are as little as
one-third those paid for similar work elsewhere, that threats of closure are false
and made only to defeat organization efforts, and that Hardeman County ought
to get into "the mainstream of the sixties" and get away from the "sweat shop"
era. It winds up with the exhortation to Jervis employees to vote "Yes" for the
Union.
During the week before the election, the Union issued a handbill entitled, "WHO
RUNS THE UNION? YOU DO!" This made clear that all internal activities,
projects, and affairs of the Local, as well as its relations with the International,
are controlled by the Local membership.
Another handbill issued the week before the election was entitled, "RIGHT OR
WRONG-FACTS AGAINST RUMORS." It undertook to dispel the rumors
about moving, about the Company's inability to survive with the Union, about the
Union's control of production and penalties related thereto, and about job security
with the Union. As to the rumor about plant moving, the Union quoted from the
Company's latest stockholders' report which made clear that there was little or no
possibility that the Company would close its Bolivar plant. As to the rumor about
the Company's not being able to afford a union, the Union quoted from the report
showing phenomenal increases of profits in the last two years and agreed that
everybody in Bolivar would gain if the employees were given a decent wage
increase sharing in these profits. As to the setting up of standards of production,
it pointed out that the only purpose for this was to combat dangerous and unhealthy
speedups. As to job security, it asserted that this would be protected and not
prejudiced in the event of organization. This handbill was signed "Jervis Inplant
Organizing Committee" and by the UAW's professional organizers.
Another handbill entitled , "HI, NEIGHBOR," was issued by the Tannery Work-
ers Union addressed to Jervis employees and welcomed them to join the union
fellowship by voting "Yes." It sought to dispel the "scare" rumors and recited at
great length various benefits to accrue from unionization.
Another handbill distributed just before the election entitled, "AN OPEN LET-
TER TO ALL JERVIS EMPLOYEES," was signed by the officers of UAW's local
at Union City, Tennessee. It too addressed itself to various charges which had
been made against the Union and played on the camaraderie of native Tennesseeans
and Americans. It recited various wage increases and benefits obtained by
organization and emphasized that joining the Union during the period of organiza-
tion would involve no initiation fee. It reminded the employees of what had been
a very bitter, violent, and much publicized campaign for the organization of the
employees of American Metal Products Company. It asserted that those employ-
ees now "have a good union contract , and the company is doing better than it ever
did before ." It exhorted the employees not to be taken in by lies and false
charges and to vote for the Union.
Another handbill distributed by the UAW organizers was entitled, "$5,000.00
REWARD." It sought to dispel the propaganda about dues , initiation fees, and
self-aggrandizement of International officials.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another handbill issued by the International just after the broadside implementa-
tion of the job evaluation plan was entitled , "BEWARE OF THE JOB EVALUA-
TION AND ITS 'POINTS."' It asked employees to compare the wages paid for
similar jobs in the UAW organized Grandville plant of the Company with their
own rates of pay and pointed out that the Grandville rates had been negotiated
between the company and the union and could not be changed without approval
by the employees.
The organizers, at least a week before the election, issued another handbill
entitled, "BOMBS AWAY!," blasting "sweet talk," "nice promises," "threats,"
"fear" and "rumors," all depicted as separately falling bombs. It warned the
employees to "look out for booby traps." It ridiculed the antiunion campaign and
pictured the Company as seeking to seduce the employees by benevolences during
the campaign , coupled with scare tactics.
Another handbill issued by the "Jervis Inplant Organizing Committee," over
the signatures of the International's representatives, presented a voluminous tabula-
tion of what appears to be all job rates at the Grandville plant as negotiated by
the UAW, informed the employees that the election had been ordered, exhorted
them to vote for the Union, and sought to inject into them dissatisfaction with
the wage rates being paid in Jervis' Bolivar plant.
Another handbill entitled, "DOUBLE TALK," issued late in January 1965,
referred to the election ultimately to be held and derided the Company for stall-
ing while at the same time saying it wanted an election. It alerted the employees
to expect all sorts of company rumors, propaganda, and falsehoods because the
Company was desperate to have the employees abandon their union sympathies
and vote against the Union.
In responding to the handbill which had proclaimed what union dues and
initiation fees payable in one year could purchase for the employees, the Inter-
national representatives issued a handbill entitled, "THE LIES GET BIGGER."
It pointed out that dues would amount to only $5 a month after the contract was
signed. In the same handbill, referring to the publicity that the county would
have to foot the bill for the Bolivar plant if Jervis moved, it asserted that Judge
Frost had admitted that this was wrong. Further, it cited county records by book
and page number as proof that Jervis would have to pay whether it moved or not
and that taxes would not have to be raised to pay for the factory construction.
It defined the issues as being only "more money" and "better working conditions"
and asserted that these could be obtained only with a union.
It thus appears that the campaign was hard fought and that the Union was able
to and did combat and reply to practically all the propaganda which had been
issued against it. Superficially, and disregarding for the moment the 8(a) (1)
violations during the critical period, it could be argued that this is one of those
cases which could come within the rule of Hollywood Ceramics Company, Inc.,
140 NLRB 220, supra. If there were nothing else in the case, there would be
strong reason for upholding the election.
On the other hand, considering the 8(a)(1) violations during the critical period,
the massive emotional campaign in its entirety, the community leadership. opposed
to the Union, the obvious fact that employees, like Sue Chumney, the Company's
witness, must have believed that the threats of plant removal were threats by the
Company, and the weak and equivocal disavowal by the Company of the moving
rumors, everything adds up to my ultimate conclusion that the election which was
held on March 16 and 17, 1965, was not held under conditions which assured to
the employees a free and objective exercise of their voting privilege. For that
reason I shall recommend that the election be set aside and that a second election
be held.
In coming to this conclusion and in making this recommendation I do so with-
out regard to the fact that the record does not support strongly any conclusion
that the Company itself inspired the scare tactics utilized againts the Union. On
the contrary, by its constant depiction of progress in Bolivar, it indicated that the
opposite was the truth. As the Board said in the Falmouth Company, 114 NLRB
896, 901, "Such determination (whether the employer and the businessmen acted in
concert to defeat the Union) is not material. The important fact is that conditions
existed which prevented a free election. In accordance with our findings herein,
we shall set aside the election and direct that a new election be held." I have
given serious consideration as well to the fact that, disregarding 83 challenged
ballots, only 128 votes were cast for the Union and 501 votes were cast against it.
This overwhelming expression against the Union did give me pause for reflection
JERVIS CORPORATION 289
because the suggestion well might be made that such a large number of employees
must have been fully aware of what they wanted. Yet after reading what I believe
to be most of the litigated representation cases having facts similar to the facts of
this case, I have come to the conclusion that this disparity in numbers is not so
great as to overcome the sum total of all the other factors which mitigate against
sustaining the election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in the 8(a)(1) section of this Decision,
having occurred in connection with its business operations, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Because, after having observed, with the exception of President Harman, all the
other high echelon officers of the Company and because I believe that those super-
visory employees who did make threats or coercive statements to employees prob-
ably did so as a reflection of their own views and wishes and not because of com-
pany policy, I do not believe that the unfair labor practices hereinabove found
are of a nature to justify a broad form order requiring the Respondent "to cease
and desist from infringing in any other manner upon rights guaranteed its employ-
ees by Section 7 of the Act." The Company is, however, bound by and must suffer
the consequences of the acts of its minor supervisory employees. Irving Air
Chute Co. v. N.L.R.B., 350 F.2d 176 (C.A. 2). It should be directed to cease and
desist from such 8(a)(1) conduct as specifically has been found herein.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Jervis Corporation, Bolivar Division, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, UAW (AFL-CIO), is a labor organization as defined in
Section 2(5) of the Act.
3. The unit as defined in the Regional Director's Order of February 17, 1965,
directing the first election, is a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. By interfering with, restraining, coercing and promising benefits to its employ-
ees, all as found specifically above, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I recommend that the Respondent Jervis
Corporation, Bolivar Division, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of International Union,
United Automobile, Aerospace & Agricultural Implement Workers of America,
UAW (AFL-CIO), or any other labor- organization of its employees by engaging
in any of the acts or conduct more particularly set forth in subdivisions (b), (c),
(d), and (e) of this part of this Order.
(b) Interrogating employees about their union membership, activities, or sym-
pathies in a manner constituting interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act.
(c) Threatening employees (1) that the plant would be moved or shut down
if the Union came in, (2) with loss of jobs or discharge because of their union
activities, or engaging in surveillance of their union activities
(d) Promising employees promotions for the purpose of persuading them not
to engage in acts guaranteed by Section 7 of the Act.
(e) In any like manner interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed to them in section 7 of the Act.
243-084-67-vol. 159-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which 1 find will effectuate the policies
of the Act:
(a) Post at its plant copies of the attached notice marked "Appendix." I Copies
of said notice, to be furnished by the Regional Director for Region 26, shall, after
being duly signed by the Respondent's representative, be posted by the Respondent
immediately upon receipt thereof and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the Respondent to assure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision what steps the Respondent has
taken to comply herewith.2
Except to the extent expressly found in the Decision, all other allegations in
the complaint shall be, and hereby are, dismissed.
I recommend also that unless on or before 20 days from the date of the receipt
of this Trial Examiner's Decision, the Respondent notifies the said Regional
Director, in writing, that it will comply with the above Recommendations, the
National Labor Relations Board issue an Order requiring it to take such action.
Election To Be Set Aside
It is further my recommendation that the election which was held on March 16
and 17, 1965, be set aside and that the Regional Director be instructed to issue
an Order directing that a second election by secret ballot be conducted for the
Employees in the appropriate unit as promptly as possible, subject to the Board's
Rules and Regulations.
IIn the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
2 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in and activities on behalf of Inter-
national Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, UAW, AFL-CIO, or any other labor organization of our
employees by engaging in any of the acts or conduct more particularly set
forth in paragraphs 2, 3, 4, and 5 of this notice.
WE WILL NOT interrogate employees about their union membership, activ-
ities, or sympathies in a manner constituting interference, restraint, or coer-
cion within the meaning of Section 8 (a) (1) of the Act.
WE WILL NOT threaten employees (a) that the plant will be moved or shut
down if the Union comes in, (b) with loss of jobs or discharge because of
their union activities, or engage in surveillance of their union activities.
WE WILL NOT promise employees promotions for the purpose of persuad-
ing them not to engage in acts guaranteed by Section 7 of the Act.
WE WILL NOT in any like manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed to them in Section 7 of the
Act.
JERVIS CORPORATION, BOLIVAR DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
PEPPERELL MANUFACTURING COMPANY 291
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.
Pepperell Manufacturing Company and Textile Workers Union
of America, AFL-CIO, CLC, Petitioner. Case 10-RC-6214.
June 13, 1966
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
approved February 16, 1965, an election by secret ballot was con-
ducted March 5, 1965, under the direction and supervision of the
Regional Director for Region 10 among the employees in the agreed
unit. At the conclusion of the election, the parties were furnished a
tally of ballots which showed that of approximately 2,257 eligible
voters, 2,192 cast ballots, of which 959 were for, and 1,155 were
against, the Petitioner, 69 were challenged, and 9 were void. The
challenged ballots were not sufficient in number to affect the results
of the election. Thereafter, the Petitioner filed timely objections
to conduct affecting the results of the election.
In accordance with National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Regional Director, conducted an
investigation and, on May 14, 1965, issued and duly served upon the
parties his report on objections in which he found that objection 1
raised credibility issues which could be best resolved by record testi-
mony at a hearing; and that objections 2, 3, 4, and 5 be overruled. On
June 7, 1965, the Employer and the Petitioner filed exceptions to the
Regional Director's report on objections. The Employer urged that all
of the objections be overruled and that a certification of results be
issued. The Petitioner did not except to the recommendation for a
hearing, but urged that the Board should sustain the remaining
objections and direct a new election. The Board, by Order dated
July 14, 1965, adopted the Regional Director's recommendation that
a hearing be held with respect to objection 1; and deferred disposi-
tion of objection 2, 3, 4, and 5.
Pursuant to the Board's Order, a hearing was held September 1,
1965, before Hearing Officer Scott P. Watson. All parties partici-
pated and were given full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the issues. On Octo-
ber 6, 1965, the Hearing Officer issued and duly served upon the
159 NLRB No. 9.