Mayfair Midwest, Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1964

148 N.L.R.B. 1602 (N.L.R.B. 1964)

1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees are free to become or remain , or to refrain from becoming or
remaining , members of United Rubber , Cork, Linoleum & Plastic Workers of Amer-
ica, AFL-CIO, or any other labor organization.
EARL FISHER MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-If Magdalene Mary Knotts should currently be serving in the Armed
Forces of the United States, we will notify her of her rights to full reinstatement
upon application after discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948, as
amended.
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 the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions , they may communicate with the Regional
Office, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200.
Mayfair Midwest, Inc. and Aluminum Workers International
Union , AFL-CIO. Case No. 25-CA-1799. October 9, 1964
DECISION AND ORDER
On May 6, 1964, Trial Examiner Wellington A. Gillis issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in and was not engaging in unfair labor prac-
tices and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Trial Examiner's Decision. There-
after, the General Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent filed cross-
exceptions to the General Counsel's exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a
three-member panel [Chairman McCullock and Members Leedom
and Brown].
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, the cross- exceptions , the briefs,
and the entire record in this proceeding, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations with the fol-
lowing exceptions and additions.'
' The Respondent filed a motion to strike and/or dismiss General Counsel 's exceptions
to Trial Examiner ' s Decision as not being in compliance with Section 102 46 ( a) and (b)
of the Board 's Rules and Regulations, Series 8, as amended Section 10240 ( b) permits
the Board to disregard any exception which fails to comely with requirements set forth in
that section As, in our opinion , the General Counsel ' s exceptions and supporting brief
adequately comply with the applicable rules, the Respondent ' s motion . is hereby denied.
The General Counsel has excepted to the credibility findings made by the Trial Exam-
iner It is the Board ' s established policy , however , not to overrule a Trial Examiner's
resolutions with respect to credibility unless, as is not the case here , the clear preponder-
148 NLRB No. 155.
MAYFAIR MIDWEST, INC. 1603
1. The Trial Examiner found that the speech given twice by Plant
Manager Doyle on August 16, 1963, the day after the Respondent
received the Union's representation petition, was "privileged under
Section 8(c) of the Act." In the speech, Doyle stated that the sign-
ing of union cards the previous year caused "troubles, disturbances
and headaches" at the plant, that most of the employees who "caused
the trouble [in an earlier organization campaign] are no longer work-
ing here," that the Respondent does not want a union at any of its
plants and does not "intend for this one to be an exception," and that
he, Doyle, had "fought unions before" and was "prepared to do it
again." Such remarks, coupling the Respondent's intent to take strong
measures to keep the Union out with comments that signing union
cards caused trouble and that most of the troublemakers were no
longer employed, was a clear threat that employees supporting the
Union ran the risk of discharge or other discriminatory action by the
Respondent. Accordingly, we find that Doyle's speech was threatening
and coercive, that it was therefore outside the protection of Section
8(c), and that the Respondent thereby violated Section 8(a) (1) of
the Act.
2. The Respondent has a written policy statement setting forth its
views about unions which is presented to new employees as part of
their orientation program. This statement, which is reprinted in full
in the Trial Examiner's Decision, indicates that the Respondent does
not want a union, that unions cause strikes, and that a strike at the
Respondent's plant could result in the loss of its major customer,
which demands 1-day service. The Trial Examiner found that this
policy statement was protected by Section 8(c) of the Act. We
agree. The statement in effect expresses the Respondent' s opinion as
to possible loss of work in the event of a strike; it does not expressly
or impliedly threaten that the Respondent will take action inevitably
leading to job loss in reprisal for the-employees' union activity. We
therefore disagree with our dissenting colleague that this statement
is coercive within the meaning of Section-.8 (a) (1) 2
THE EFFECT OF THE UNFAIR LABOR' PRACTICES UPON C OMMERCE
The activities of Respondent set forth above,- occurring in connec-
tion with its operations described in the Trial Examiner' s Decision,
ance of all the relevant evidence convinces us that the resolutions were incorrect . Stand-
ard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F. 2d 362 (CA 3).
In the absence of exceptions thereto , the Trial Examiner ' s recommendation, that the
complaint be dismissed insofar as it alleged that the discharge of John Hulsey was viola-
tive of Section 8(a) (3) is adopted pio forma
2 Poray, Inc, 143 NLRB 617, enfd sub nom Metal Processors ' Union Local No 16,
'AFL-CIO v. N LRB , 337 F 2d 114 (C.A D C.), in which the Board held that an em-
ployer ' s statements that a strike would cause loss of customers ' work or the closing of
the plant were not unlawful The factual differences between Poray and the instant
case do not warrant the differences in legal consequence which our dissenting colleague
urges.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close, intimate, and 'substantial relation to trade, traffic, and
commerce among the several States, and tend to lead, and have led,
'to labor disputes burdening and obstructing commerce and the free
-flow of commerce.
THE REMEDY
_ Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
CONCLUSION OF LAW
Upon the basis of the foregoing and the entire record in the case,
we hereby substitute the following Conclusion of Law No. 3 for the
'Trial Examiner's Conclusion of Law No. 3: "By threatening its em-
ployees with loss of jobs'or other reprisals if they engage in union
activity, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7 of
the Act, in violation of Section 8(a) (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended,'the National Labor Relations Board hereby orders that the
Respondent, Mayfair Midwest, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Threatening its employees with loss of jobs or other reprisals
if they engage in union activity.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to join or assist Aluminum Workers International Union, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining or other
mutual aid. or protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act: '
(a) Post at its establishment in Frankfort, Indiana, copies of the
attached notice 'marked "Appendix.'' 3 Copies of said notice, to be
furnished by the Regional Director for Region 25 shall, after being
duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and be maintained by
S In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
MAYFAIR ;MIDWEST, INC.- 1605
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 25, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that the Respondent has violated
Section 8(a) (3) or (1) except as herein found.
MEMBER BROWN, dissenting in part : -
While I agree with my colleagues in all other respects, I find that
the policy statement, read by the Respondent to new hires as part of
an employment orientation program, coerced and restrained em-
ployees in the exercise of free choice, was outside the ambit of Section
8(c), and violated Section 8(a) (1) of the Act.
Read as a whole the statement, which is reprinted in the Trial
Examiner's Decision, clearly emphasizes that employees will suffer
economic loss if they choose to be represented by a union. The Re-
spondent linked unions with inevitable strike activity and violence
which, it asserted, hurt everyone. It also noted that unionism
would be futile because collective bargaining would bring no greater
benefits that those presently provided by the Company. Respondent
implied that selection of a union would result in substantial job loss
because its major customer "would not hesitate to find another sup-
plier" in the face of a strike. Thus, job loss was portrayed as the
natural effect of collective bargaining, and, in view of this linking of
unionism with strike action, - the potency of this threat was not
diminished merely because the Respondent stated that loss of work
would come from a strike rather than from the advent of unionism
itself.
I cannot agree with my colleagues that these coercive remarks are
insulated by the Act simply, because'the' Respondent couched them in
terms of a possible result of a strike. 'Section 8(c) does not "confer
a license to make an assertion of a, specific and critical fact which is
drawn from thin air." 4 Nor does ,the Poray decision 8 lend support
to the majority's ,position in view 'of the unusual facts, of that case.
There, the employer's speeches were made to' groups of employees
after working hours in response to an incumbent union's imminent
strike preparations, and the, employer repeatedly disclaimed any
4International Union of Electrical, Ra`dio'and Machine Workers, AFL-CIO (NECO
Electrical Products Corp.) v N L R.B., 289 F..2d •757, 763 (C.A.D.C)
5 Poray, Inc., 143 NLRB 617 , enfd. suli , nom. Metal `Processorslr Union' Local No. 16,
AFL-CIO v. N.L.R B., 337 F. 2d 114
-1
-1
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire to threaten employees. Here, however, the Respondent indi-
vidually advised each newly' hired employee concerning the Com-
pany's aforementioned policy statement and, under such circum-
stances, the impact of the Employer's unlawful message is even more
coercive. Accordingly, both the message and its context herein are
totally distinguishable from Porgy.
Based upon the foregoing, I would find that the Employer's policy
statement interfered with, restrained, and coerced employees in the
exercise of their rights as guaranteed in Section 7, thereby violating
Section 8(a) (1) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees with loss of jobs or other
reprisals if they engage in union activity.
IVE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to join or assist Aluminum Workers Interna-
tional Union, 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 as
guaranteed in Section 7 of the Act, or to refrain from any or all
such activities.
MAYFAIR MIDWEST, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may. communicate directly with.the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana, Telephone No. Melrose 3-8921, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an • amended charge filed on August , 26 and 29 , 1963, respec-
tively , by Aluminum Workers International Union , AFL-CIO, hereinafter referred
MAYFAIR MIDWEST, INC. 1607
to as the Union, the General Counsel for the National Labor Relations Board, here-
inafter referred to as the Board, issued a complaint on October 4, 1963, against
Mayfair Midwest, Inc., hereinafter referred to as the Respondent or the Company,
alleging that the Respondent engaged in conduct violative of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended
(61 Stat. 136), hereinafter referred to as the Act. The Respondent thereafter filed a
timely answer to the complaint denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was subsequently held on the complaint, as amended,
on October 15, 1963, and again on November 5, 1963, in Frankfort, Indiana, before
Trial Examiner Wellington A. Gillis, at which all parties were represented by coun-
sel and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, and to engage in argument.
Timely briefs were subsequently filed by the General Counsel and the Respondent.
Upon the entire record in this case, from my observation of the witnesses and
their demeanor on the witness stand, and upon substantial, reliable evidence "con-
sidered along with the consistency and inherent probability of testimony" (Universal
Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Georgia corporation with its principal place of business at
Frankfort, Indiana, is engaged in the fabrication of aluminum windows and doors.
During the 12-month period immediately preceding the issuance of the complaint,
the Respondent manufactured, sold, and shipped in interstate commerce from its
Frankfort, Indiana, plant, products valued in excess of $50,000 to points located
outside the State of Indiana. During the same period, the Respondent purchased
materials and supplies valued in excess of $50,000, which were shipped directly to
its Frankfort, Indiana, plant from points located outside the State of Indiana. I find
that the Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree, and I find , that the Aluminum Workers International Union,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
1. Whether, at various times during the months of June, July, and August, 1963,
the Respondent, through its supervisory personnel,' engaged in conduct violative of
Section 8 (a) (1) of the Act.
2. Whether, in discharging John C. Hulsey on August 28, the Respondent was
motivated by antiunion considerations in violation of Section 8(a)(3) of the Act.
B. Prefatory statement
John Hulsey, who was first employed by the Respondent in April 1961, and who
subsequently held the job positions of saw operator and diesetter before being pro-
moted to night-shift leaderman in April 1963, was demoted to machine operator on
the day shift on July 1, 1963, and later discharged by the Respondent on August 28,
1963.2 Toward the latter part of June, Hulsey was informed by the Respondent's
general foreman, Gene Jewel, that because of the unsatisfactory manner in which
he had been performing his job as night leaderman, he was to be removed from that
job and placed on the day shift. On June 27, Hulsey, who was disgruntled over the
prospect of being reclassified, attempted to raise the demotion matter with Glenn
Gordan, Respondent's vice president, by way of a long-distance telephone call.
Gordan, who at the time was in Lafayette, Louisiana, and unaware of the decision,
deferred discussing the matter with Hulsey until such time as he would be in Frank-
1 The supervisory personnel allegedly Involved are Glenn Gordan, vice president; Arthur
Doyle, plant manager ; Gene Jewel, general foreman ; and Robert Gilbert, foreman, each
of whom I find to be a supervisor within the meaning of the Act
2 Unless otherspecified, all dates refer to the year 1963.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fort. - During the period between his demotion on July 1 and ' his discharge on
August 28, according to Hulsey, several of the Respondent 's officials discussed with
him matters relating to the Union.3
C. The facts
1. Alleged interrogation , threats, and promises of benefit
Hulsey, the alleged discriminatee in this proceeding and the first of several wit-
nesses to testify on behalf of the General Counsel, testified that about 2 weeks after
he had been transferred from the night shift to the day shift, which would place it
around July 15, he approached Gene Jewel, the general foreman, and, because the
latter had been ignoring his salutations, asked Jewel whether he (Hulsey) had done
something wrong. According to Hulsey, Jewel replied, "Yes ... I'm very disgusted
with you . . . You are going around talking to the guys about the Union and
the cards and you aren't running production." Hulsey replied that the only time that
he was talking to the employees was during breaks. When Jewel reiterated that
Hulsey was talking and was not running production, Hulsey retorted that perhaps he
would be better off if he went in a corner and hid. Jewel, according to Hulsey,
agreed that he "might be better off."
Jewel testified that on this occasion Hulsey inquired as to why Jewel appeared dis-
gruntled with him, to which the latter stated that he had not been doing his work
properly. Jewel further testified that when he admonished Hulsey for wandering
from his work station and talking with other employees , Hulsey inserted the Union
into the conversation by stating that he was "not walking around signing anybody
up on these union cards."
Hulsey testified that about this same time, in a conversation in Plant Manager
Art Doyle's office, Doyle stated that the Company was having problems running
special windows, plus union problems. Hulsey agreed that he thought that "you're
having union problems and will have." Jewel then indicated that he did not think
that any union cards had been circulated, otherwise he would have known about it.
Doyle commented that "he sure hoped that it wasn't because it could cause them to
have to shut down."
Jewel's version of this incident, which is corroborated by the testimony of Doyle,
is that a few days- after Hulsey's demotion, Hulsey was called into Doyle's office
where Jewel explained to Hulsey again the reasons for the Company's decision to
remove him as night-shift leaderman . Jewel testified , as did Doyle , that no reference
was made to unions or to union activity during this conversation.
Hulsey testified that about 3 weeks after he came off nights, having missed seeing
Gordan when the latter was visiting the Frankfort plant, Hulsey again called Gordan
long distance, and told him that he felt that he did not have much of a future with
the Company. According to Hulsey, Gordan assured him that such was not the case
and that Gordan stated that "he knew we were having union problems and he wanted
me in there fighting as I had always been." Gordan further stated that the Company
was,having enough problems running special windows without having union prob-
lems, and indicated to Hulsey that he would help him out and find something better
in the plant. Hulsey further testified that "when we were talking about union prob-
lems, I told him (Gordan ) that he should know and I felt that he knowed [sic] the
way I felt about it."
Gordan testified that oh this occasion , which took place on July 29, Hulsey com-
plained of having been treated unfairly in his demotion and that Hulsey could not
understand the reason for the company action Gordan, who, when in Frankfort a
day or so'earlier; had reviewed the company action with Jewel and Doyle, told Hulsey
that he agreed with their decision concerning Hulsey's reclassification but that if
Hulsey applied himself to his work he would be considered along with other em-
ployees , for advancement . At this point in their -telephone conversation , Hulsey in-
jected the Union into the discussion by stating to' Gordan that the entire second shift
would vote for the Union unless he stopped them . When Gordan replied that this
had nothing to do with Hulsey's job and that he would not discuss it further, Hulsey
continued by stating that the people who wereistrong union adherent during the
union campaign in 1962 were being treated better than he , that he had been -very
3 While the Respondent 's action in demoting Hulsey on July 1, which appears to have
occurred prior to the advent of the subject union activity in the plant; Is neither alleged
nor asserted as a violation of the•Act, it does serve as background , both as to time and
substance , for several of the alleged Section 8(a)(1) conversations hereinafter recited.
MAYFAIR MIDWEST, INC. 1609
loyal to the Company during past union campaigns and had personally been respon-
sible the previous year for the night shift voting for the Company. When Gordan
told Hulsey that anything he might have done for the Company in the past was
appreciated but again insisted that he did not want to discuss the union matter,
Hulsey continued, stating that the union ringleaders this year had better jobs than
he and that he felt that the Company was not treating him fairly. Gordan then
concluded the telephone conversation by stating that he had reviewed Hulsey's job
situation and felt that the course of action taken by Hulsey's supervisors was
warranted.4
Hulsey testified to two conversations with Plant Manager Art Doyle which al-
legedly occurred shortly after the latter had made a speech to all of the plant em-
ployees on August 16. According to Hulsey, he stopped Doyle in a work area and
told him that he did not start the Union, to which Doyle replied that he would not
say that Hulsey started it by himself, but that "you and others are playing a big part
in it." Shortly thereafter, Hulsey again stopped Doyle on the production floor and
asked him what he meant in his speech when he indicated that some employees had
been mislead into signing union cards. When Doyle replied that some of those who
were passing out cards were promising employees things that the Union could not
fulfill, Hulsey told Doyle that he had not and would not tell anyone a lie to get him
to sign a union card. According to Hulsey, Doyle then replied , "If the shoe fits,
wear it."
Doyle's version of this is that Hulsey asked him why he was accusing Hulsey of
involving everyone else in his troubles, that Doyle had indicated this in his talk to
the employees. When Doyle denied this, Hulsey changed the subject and raised
matters pertaining to the pay reduction caused by his demotion 6 weeks earlier.
Toward the latter part of August, and prior to Hulsey's discharge, after Hulsey
had asked for, and received, permission from Jewel to take the time to go uptoward
to get a transmission for his automobile, Jewel instructed Billy Cunningham, a saw
operator on the day shift, to take over for Hulsey while the latter was gone, and
remarked to Cunningham that Hulsey was probably "going up to the damn union
hall " When Hulsey returned and undoubtedly was informed by Cunningham of
Jewel's remark, Hulsey asked Jewel whether he had made the remark. According to
Hulsey's testimony, Jewel admitted that he had, and then asked Hulsey if that were
in fact where he had gone, to which Hulsey replied in the negative, adding that "this
time I have not been at the union hall." According to Hulsey's further testimony,
Jewel said that he knew that he was playing a big hand in it, and that he knew every
man who had signed a union card, and that "he granted that they would not be there
another year or he would not."
Jewel testified that on this occasion Hulsey jokingly asked him what he meant by
telling Billy Cunningham that he had his transmission fixed up at the union hall, to
which Jewel, also in a joking manner, replied, "Yeah, John, . . . you must have had
some trouble carrying that transmission up those union hall steps." Jewel was not
questioned as to the remaining statements attributed to him on this occasion by
Hulsey, but testified that this was all that was said pertaining to the Union.
According to Hulsey, about 1 week before he was terminated on August 28, he
asked the shipping department day foreman, Bob Gilbert, whether be had heard
anything about a shipping job that Gilbert had mentioned to him a few days earlier.
Gilbert allegedly told Hulsey that he had considered putting him-back in the shipping
area, but that "I'm positive that my men back there are all non-Union and you're for
the Union, because ... you have given men in my area, you had two men in my; area
to sign cards " Hulsey answered by stating that he had not attempted to sign up any-
body back there. Hulsey testified that Gilbert concluded by asking him whether he
would vote against the Union if he were back in the shipping department, to which
Hulsey replied that he would rather not answer the question.
Gilbert was not specifically questioned on the union statements attributed to him
by Hulsey, but testified that on six or seven occasions in July Hulsey had spoken, to
him about the possibility of being transferred from his machine into Gilbert's depart-
ment. Until the last occasion , which occurred about July 26 or 27 after,Gilbert,had
hired two employees in his department, Gilbert continually told Hulsey that he did
* The fact that Hulsey, on this date, signed a union card and, thus, for the first time be-
came an acknowledged union adherent, would indicate that Gordan's version of the tele-
phone conversation is inherently more worthy of belief. Otherwise, it is a little difficult
to understand Hulsey's action in becoming a union member on the same day that he was
promised "something better in the plant" in exchange for his continuing to fight the Union.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not need anyone. On the last occasion Gilbert told Hulsey that he needed someone
he could depend on, that all of his employees were good workers, and that he did not
want Hulsey to "contaminate" them.5
With the exception of the last incident, the conflict over which has already been
resolved, the issue of whether, based upon the above recitation, the Respondent en-
gaged in conduct constituting a violation of the Act, is almost completely dependent
upon a credibility resolution of the testimony of the witnesses involved. Thus, in
the main, if Hulsey is to be believed, as against Jewel, Doyle, and Gordan, there is no
question but that the Respondent engaged in Section 8(a)(1) conduct, and, con-
versely, if the testimony of the Respondent's officials is found to be the more credible,
it follows that the General Counsel has failed to establish his case.
Without attempting to minimize the Respondent's admitted animosity toward
unions, and the fact that the Respondent, as in successive past years, was dedicated to
keeping the Union from successfully organizing,its plants, I am convinced, on the
record as a whole, that Hulsey had become unusually embittered toward the Com-
pany for what he considered unfair treatment in effectuating his demotion in early
July, and that, in attempting without success to advance his own economic interests
from time to time during the period here involved, Hulsey seized upon the advent of
the Union to initiate union discussion into conversations with his superiors, even on
occasions before he himself had decided to become a union adherent. While con-
ceding that there may well have been union utterances made by Hulsey's superiors
during the period under consideration, particularly in response to Hulsey's invita-
tion, I am not persuaded that Hulsey, in testifying generally, was not subconsciously
or otherwise prompted by a desire to support his position with respect to his claim
of unlawful discharge. On the other hand, based upon my observation of the de-
meanor of Jewel, Doyle, and Gordan, while testifying on the witness stand, all of
whom I found to have testified in an honest and straight forward manner, I am
inclined to find that their testimony more accurately reflects the true fact. Accord-
ingly, I credit generally the testimony of Jewel, Doyle, and Gordan, and, to the
extent that Hulsey's testimony is in conflict therewith, it is not credited.
Based upon this credibility finding, and on the record as a whole as it pertains to
the incidents recited heretofore, I find that the Respondent through the above-named
officials did not engage in conduct violative of Section 8 (a) (1) of the Act.
In addition to the above matters involving Hulsey, the record reveals that the
Respondent has an orientation practice by which each new employee, before com-
mencing work, is briefed by one of the company officials, generally Gene Jewel, and
that on these occasions, in addition to filling out personnel forms and being briefed
on matters relating to working hours, clock procedures, benefits, seniority , insurance
plans, and similar matters, the employee is also apprised of the Company's policy
concerning unions. For this purpose, the Respondent has maintained for some time
a prepared written statement setting forth the company policy in this regard, which
statement is used on these occasions. The text of this statement is as follows:
MAYFAIR MIDWEST, INC.
Frankfort, Indiana
MANAGEMENT POLICY MANUAL
TO BE READ TO EACH NEW EMPLOYEE
I want to tell you about the company 's policy on unions . We don 't have a
union here and we don 't want a union here . Unions can cause a lot of trouble
through their strikes , violence and other troubles . I don 't know how you feel
about unions, but all our employees know that we don't want our employees to
feel they need a union . We hope that our relations with you will be as good as
they are with our other employees and that you won 't feel that you need a union.
6I credit Gilbert's testimony over that of Hulsey, and, notwithstanding the fact that
Hulsey's testimony pertaining to the union matter stands unrefuted, I do not find it
credible. Apart from my appraisal of their demeanor while testifying on the witness
stand, _the first statement attributed to Gilbert by Hulsey is inconsistent in itself, in that
Gilbert's men could not very well be all nonunion if two of them had signed union cards.
In addition, Hulsey, unlike Gilbert, displayed a hazy recollection as to dates, and Gilbert's
testimony placed the last of such inquiries by Hulsey on or about July 27, which precedes
the July 29 date on which Hulsey, himself , became a union adherent by signing a union
authorization card.
MAYFAIR MIDWVEST, INC. 1611
We have had unions try to get into this and the other Mayfair Plants several
times, but our people have turned them down every time. We hope you will
feel the same way about this as we do, and not let any union organizer get you
involved. We don't need a union around here and you don't need a union when
you work here. You have all the benefits here you can get in a union plant.
Unions cause strikes, and strikes hurt everyone. A strike here would be ex-
tremely harmful because it could cause us to lose our major customer, National
Homes. National Homes demands one day service, and if we fail to meet their
needs, I'm sure they would not hesitate to find another supplier.
If you have any problems, whether they pertain to work or other matters, I
want you to feel free to come and talk with me so I may try to help you solve
them. We want to be sure that the company and you always understand each
other. Feel free to come and talk to me at any time about anything.
Jewel testified that, in briefing four of the five employee-witnesses for the General
Counsel upon their being hired in June or July 1963, he followed the above-prepared
written statement. Gilbert, who briefed the other new employee, testified that he
read the statement to him . Both Jewel and Gilbert credibly denied that, during any
of these briefings , he inquired as to the employee 's union sentiments or made any
threats concerning union activity . The testimony of Robert Hottel, David Moore,
Wilbur Ostler , Arlington Harris, and Stephen Hollingsworth discloses that, in sub-
stance, the matters contained in the policy statement were brought out by Jewel and
Gilbert in their respective briefings. However, to the extent that portions of such
testimony would indicate that Jewel or Gilbert went beyond the contents of the
policy statement or that either engaged in interrogation or threats on these occasions,
it is not believed.
In crediting Jewel and Gilbert as to these conversations ,6 I find that the material
contained in the Respondent 's policy statement concerning unions falls within the
protection afforded by Section 8 (c) of the Act, and thus, the use of such statement
in apprising new employees of the Respondent's policy toward labor unions does not
interfere with , restrain , or coerce employees within the meaning of Section 8 (a) (1)
of the Act.
A final matter to be disposed of concerns two speeches made by Plant Manager
Doyle on August 16, the day following the Respondent's receipt of the representa-
tion petition filed by the Union . On this date, Doyle delivered prepared typewritten
speeches to assembled employees on the day shift and on the night shift , in which
Doyle expounded on the Company 's position regarding unions generally and the
petitioning union in particular . Credible evidence, including the testimony of Jewel
and Superintendent Robert Worch to the effect that they followed Doyle's talk with
their copies , discloses that in making these two talks Doyle read word for word from
a typewritten copy,7 and that he did not deviate therefrom . A perusal of this speech,
which I find under the circumstances to constitute the best evidence as to what was
stated by Doyle,8 warrants a finding that the matters contained therein are privileged
under Section 8(c) of the Act and , as such , may not be held to be violative of Section
8(a)(1) of the Act.
2. The discharge of John Hulsey
On August 27, at approximately 9:30 a.m ., a garnishee execution in the amount of
$266.75 plus $7. 50 costs was served upon the Respondent and delivered to Plant
Manager Arthur Doyle , pursuant to which the Respondent was required to apply to
the execution 10 percent of John Hulsey 's wages in excess of $ 15 each week . Doyle,
upon receipt thereof , consulted the company manual for procedure , checked with
the Respondent 's vice president in Lafayette , Louisiana, concerning the written policy
9 Hollingsworth , the employee who was briefed by Gilbert when he commenced work for
the Company , testified that Gilbert had asked him his opinion toward unions and that
2 weeks before his layoff in September Gilbert asked him if he still felt the same way.
I credit Gilbert's denial of having made either query of Hollingsworth
a An attached copy of this speech is marked "Appendix."
e The testimonial recollection of several witnesses for the General Counsel substantiates
much of that contained in the written speech. To the extent that their recollection of
the talk attributes to Doyle anything other - than that which appears in the ,text of the
typewritten speech, such testimony is not credited.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on garnishments ,9 and then requested Hulsey and Jewel to come to his office. Doyle
showed the garnishment notice to Hulsey and explained the policy to him , the exist-
ence of which Hulsey indicated he was aware , and Hulsey asked Doyle how much
time he had to take care of it . Doyle, upon checking with the payroll clerk , learned
that the payroll had been started and that Hulsey 's check had already been made out.
He then advised the clerk to hold up on the payroll and told Hulsey that , in order to
give him an opportunity to take care of the garnishment , he would hold the payroll
until the following morning.10 Hulsey, who was then given the remainder of the
day off for such purpose , punched out and went uptown to the Town Finance Com-
pany to see if he could borrow the necessary money.
The following morning, August 28, at approximately 8:30, Hulsey and Jewel en-
tered Doyle 's office, and Hulsey told Doyle that he had not been successful the
previous day but that he was expecting a telephone call by 9 a.m. and asked for a
little more time. When Doyle asked him if he could complete it by 10 a in , Hulsey
replied that he thought that he could . Doyle acquiesced , but indicated that he would
have to start the payroll by that time. Hulsey, worried because he had not received
the telephone call, was again given permission by Jewel to take time off. About 11
a.m., Hulsey returned to the plant and told Doyle that he could not raise the amount
necessary to take care of the garnishment . ii Doyle expressed to Hulsey his regrets,
and said that he absolutely had to complete the payroll . Hulsey was then terminated
and later that afternoon picked up two checks . The following day, August 29, the
garnishment was paid off by Hulsey.
The, General Counsel contends that Hulsey was discharged because of his union
activity and that the Respondent 's asserted ground was a pretext . The Respondent,
in denying the discriminatory allegations , contends that Hulsey's discharge on August
28 was made pursuant to established company policy involving garnishments on em-
ployees' salaries.
The record amply demonstrates that the Company disliked unions , opposed union
organizational efforts in its plants , and openly made known among its employees its
antiunion sentiments . Record evidence also reveals that the Company , and Jewel in
particular , was aware of Hulsey's prounion feelings. While the presence of both of
these factors weighs heavily in favor of imputing to a respondent an unlawful moti-
vation in discharge cases, they are not controlling.
9 On May 8 , 1963 , the Respondent issued a memorandum setting forth the Company's
policy concerning garnishments , a pertinent portion of which follows
Garnishments against the salary or wages of an employee require special handling
by the company involving payroll accounting and constitute a serious nuisance ;
therefore , repeated garnishments cannot be allowed.
Upon service of a garnishment, the employee concerned shall be contacted and in-
formed of the levy • In addition , the employee shall be advised that if he is able to
have the garnishment withdrawn prior to the time that a deduction must be made
from his- check , he may do so He must also be advised , however , that if he fails to
have the garnishment withdrawn ( or, in other words, to have the company ,released
by the garnishment ) by the time his payroll check is made out by the Payroll De-
partment , he will be discharged . The employee may be granted time off in order to
take care of this matter . In so doing , he should be given a specific deadline , depend-
ing upon when the Payroll Department would have to make the computations for the
deduction.
10 The weekly payroll is normally started on each Tuesday morning , and, upon its com-
pletion, which includes the making out of all payroll checks , the total amount necessary
to cover the payroll is telephoned to the - Lafayette, Louisiana, office , generally about
4 o'clock the same afternoon . The home office then mails to the Frankfort plant a check
to cover the total payroll. Upon receipt of this,"normally 'on Thursday morning, the
check is deposited in the local bank, and'the salary checks dispersed Thursday night and
Friday morning.
71 Contrary to the testimony of Jewel and Doyle, whose credited testimony forms the
basis for the above factual account , Hulsey, whom I 'do not credit , testified that he had
been told by a man at Town Finance Company that , although the official 'necessary to
authorize ' a loan was not available , if `such official could not be located by 2 p.m that
day, the. man would let Hulsey have"the loan anyway . Hulsey further testified that' he
relayed this information to Doyle upon returning to the 'plant at 11 a.m., and that Doyle
told him that he was sorry but that he could not give him any further time off, and that
he was terminated.
MAYFAIR MIDWEST, INC. 1613
The circumstances under which Hulsey was discharged indicate that the Respond-
ent did have a written policy with well-defined procedures governing the handling of
garnishments , and requiring an employee's discharge in the event that the Company
were not released from a garnishee execution prior to the time that a salary deduction
would have to be made; that this policy was known to Hulsey at the time that the
garnishee execution prior to the time that a salary deduction would have to be made;
that this policy was known to Hulsey at the time that the garnishee execution was
received; that the Respondent, in applying the policy to Hulsey, permitted him more
leeway to take care of the garnishment than was required under the policy; and that
Hulsey was terminated only after he had indicated that his efforts to raise the money
were to no avail and at a time when it was no longer possible to further delay com-
pletion of the company payroll. These facts, in my opinion, tend to refute the argu-
ment that the Company's motivation was predicated upon Hulsey' s union activity,
for, were such the case, in view of the fact that Hulsey's check had already been
made out at the time that the Respondent notified Hulsey that the garnishee execu-
tion had been received, the Respondent properly and within its garnishment policy
could have discharged Hulsey immediately. Accordingly, in the absence of any
evidence that the Respondent delayed notifying Hulsey of its receipt of the garnishee
execution or in any other way accorded Hulsey treatment different from that which
would have been accorded any other employee, I am, persuaded that the Respondent
discharged Hulsey for cause and that union activity was not a motivating factor in
the Respondent's decision.
For the above reasons, and based upon the record as a whole, I am convinced, and
so find, that the General Counsel has not assumed the burden of establishing by a
preponderance of the credible evidence that the Respondent, in discharging John
Hulsey on August 28, did so for reasons relating to his union activity. Accordingly,
I find and conclude that the Respondent has not engaged in conduct violative of
Section 8(a)(3) and (1) of the Act as alleged in the complaint.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1 Mayfair Midwest, Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Aluminum Workers International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
APPENDIX
August 16, 1963
TALK BY ART DOYLE
I know that most of you will be as. sorry to hear what I-am about to tell you as I
was to learn it. Yesterday we received a copy of a petition for an election from the
National Labor Relations Board. It was filed with the N.L.R.B. on Tuesday by the
Aluminum Workers Union.
I am extremely disappointed, and so are Glenn Gordon and Mr. Goff. We are
disappointed that some of you people have. fallen into a trap set for you. We are
disappointed that some of you didn't have- the will power to say NO to' a few dis-
gruntled people who can't handle their own troubles or problems. It is unfortunate,
but apparently we have a few men here who haven't the guts to come to me or others
in management with their problems. Instead they want to involve each of you and
your future, and the future of this plant, in their problems. Apparently, some of you
have forgotten the troubles, disturbances and headaches that the signing of union
cards caused here last year.-
I am well aware of the history of this plant so.let; me remind you that- it was the
same union-The Aluminum Workers of America-who tried to get in here in 1961.
The management of this company made its position clear to you at' that time, and
you folks voted against the Aluminum Workers'by an, overwhelming majority. We
don't blame any of you who were here in 1961 for that trouble. Some of you just
didn't know any better, and most of those who caused the trouble are no longer
working here. I know that in .1961 your wages, your, paid vacation; your paid holi-
days, and your other benefits were not as good as they are now. But most of you
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
realized in 1961 that a union would not help you here but could hurt you, and so you
voted against them in the Labor Board election . Since a large majority of you
realized these facts in 1961-again in 1962 when the Teamsters Union tried to get
in here-I have no doubt that you will defeat the union again this year if an election
is held . In fact , already several of you have come to us and told us that you were
mislead into signing a card , now want them back, and don't want any part of a union.
Mayfair has made its position clear to you on many occasions . And I want to make
it clear to you that I feel the same way as Mr. Goff, Glenn Gordon and Del Tickel.
If there is any question in anyone 's mind, let me say again ; WE DON'T WANT A
UNION HERE, AND WE INTEND TO USE EVERY LEGAL MEANS TO
KEEP THEM OUT OF MAYFAIR. (Pause) That is one of the reasons we are
so disappointed that some of you have made the mistake of signing these cards.
Mayfair does not have a union in any of its plants, and I don't intend for this one
to be an exception.
I want to tell you this also ; I'm no stranger to unions . I know what they are, and
I know what they can do to you and to a company like this one. I have fought unions
before, and I'm prepared to do it again.
Now, sometime in the near future, the National Labor Relations Board will hold a
hearing, probably in Indianapolis . After that, the Board will decide whether or not
there will be an election. We will keep you fully advised of all the facts and details.
Now, for the next several weeks-or perhaps months-the union organizers will be
swarming over you, bothering you, and make all sorts of promises to you. Therefore,
I want you to remember a few things. First of all, anytime you have any questions or
there is anything you want to discuss or talk about, you should see me or your super-
visor. We will give you the facts, don't go to the agitators and trouble makers who
will not tell you the truth or who will make promises to you that they know they
can not keep.
Second , remember you do not have to talk or listen to the union organizers. You
can always tell them to go peddle their troubles somewhere else.
Third, even if you were one of those who made this mistake of signing a union
card because you didn't know what you were getting into, you can still vote against
the union if an election is held here.
In conclusion , I want to remnid you that this union has nothing to offer but
troubles and empty promises . It has no way of keeping these promises . ( Pause) I
also want to thank those of you, who have come to us and told us how you feel. We
appreciate your confidence and sincerity. I'm sure that by working together we can
keep the union and its troubles and problems out of here. Again if you have any
questions or comments , feel free to see me.
Caster Mold & Machine Company , Inc. and United Steelworkers
of America , AFL-CIO. Case No. 8-CA-3334. October 9, 1964
DECISION AND ORDER
On May 5, 1964, Trial Examiner Samuel M. Singer issued his.
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner further found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the complaint be dis-
missed with respect to the latter allegations. The General Counsel
and the Charging Party each filed exceptions to that portion of the
Trial Examiner's Decision in which Respondent was found not to
have violated the Act, and each filed briefs in support thereof.
148 NLRB No. 157.