Metro Pants Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 492 (N.L.R.B. 1970)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metro Pants Mfg. Co. and Amalgamated Clothing
Workers of America, AFL-CIO. Cases 5-CA-
4183, 5-CA-4393, and 5-RC-6363
August 27, 1970
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND MCCULLOCH
On March 9, 1970, Trial Examiner Max Rosenberg
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and rec-
ommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent had not interfered with the election held
among certain employees of the Respondent, and
recommended that the results be certified. Thereafter,
the General Counsel and the Charging Party filed
exceptions to the Trial Examiner's 'Decision and sup-
porting briefs, and the Respondent filed a brief in
answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by 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 recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dis-
missed in its entirety.
IT IS FURTHER ORDERED that the objections in
Case 5-RC-6363 be, and they hereby are, overruled
in their entirety.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for Amalgamated Clothing
Workers of America, AFL-CIO, and that said labor
organization is not the exclusive representative of the
employees in the appropriate unit , within the meaning
of Section 9(a) of the National Labor Relations Act,
as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Trial Examiner: With all parties repre-
sented, this consolidated proceeding was tried before me
in Harrisonburg, Virginia, on August 26, 27, 28, 29, and
October 8, 1969, on an amended complaint of the General
Counsel of the National Labor Relations Board and an
answer filed thereto by Metro Pants Mfg. Co., herein called
the Respondent.' Joined with the complaint are objections
to an election conducted by the Board in Case 5-RC-
6363 among an appropriate unit of Repondent's employees
on May 9, 1968, which were lodged by Amalgamated
Clothing Workers of America, AFL-CIO, herein called
the Union, and which the Regional Director for Region
5 consolidated for hearing with Cases 5-CA-4183 and
5-CA-4193. At issue is whether Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by certain conduct to be detailed hereinafter, and whether
the foregoing alleged acts of misconduct by Respondent
which antedated the election, and which generally find
their parallel in the Union's Objections to the aforemen-
tioned election, so interfered with the employees' freedom
of choice as to require a second vote. All parties were
afforded full opportunity to present evidence, to examine
and cross-examine witnesses, to argue orally at the close
of the hearing, and to file briefs. Oral argument was waived
by all parties. Briefs have been received from the General
Counsel, the Respondent, and the Union, which have been
duly considered.'
Upon consideration of the entire record, including the
briefs filed with me, and upon my observation of the
demeanor of each witness while testifying, I hereby make
the following:
' The consolidated complaint, which issued on August 13, 1969, is
based upon charges filed and served on August 28, 1968 , and May
8, 1969, respectively
' The General Counsel's unopposed motion to correct the transcript
in minor respects is hereby granted
In a posthearing motion, counsel for the Respondent moved the Trial
Examiner for permission to alter page 133 of the record which contains the
testimony of General Counsel 's witness Mildred Juanita Nixon While the
General Counsel filed no opposition to the procedural request, counsel for
the Union objected on the primary ground that such alteration would change
the purport of Nixon's testimony In my opinion, the requested alteration
would operate to better illuminate her confused testimony as it now appears
in the record The motion is granted
185 NLRB No. 50
METRO PANTS MFG CO
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE EMPLOYER
Respondent is, and at all times material herein, has been
a partnership located in Harrisonburg and Bridgewater,
Virginia, where it is engaged in the manufacture and sale of
mens' and boys' pants During the annual period material
to these proceedings, Respondent sold and shipped goods
valued in excess of $50,000 from its Harrisonburg and
Bridgewater plants directly to points located outside the
Commonwealth of Virginia The complaint alleges, the
answer admits, and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
ii THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
til THE ALLEGED UNFAIR LABOR PRACTICES
A The Contentions
The complaint alleges that Respondent, by its supervisors
and agents, violated Section 8(a)(1) of the Act by the
following misconduct (a) On or about April 7, 1968,'
Plant Manager Nat DeLeo interrogated employees at
Respondent's Bridgewater, Virginia, plant, concerning their
union activities, and threatened to discipline them if they
supported the Union in its organizational campaign; (b)
in April, Supervisor and Agent Bonnie Alger interrogated
employees regarding their activities on behalf of the Union;
(c) on or about April 18, Supervisor Arelia Sterling threat-
ened to discharge employees and to terminate business
operations at the Bridgewater plant in reprisal for their
union proclivities, and on or about May 2, threatened
the Bridgewater employees with loss of insurance benefits
if they selected the Union as their bargaining agent, (d)
in May, Supervisor Earnest Shifflett threatened employees
at Bridgewater with loss of vacation benefits if they support-
ed the Union and, on or about May 6, questioned employees
at this installation concerning their union sympathies, (e)
on or about May 2, Supervisor Ruth Nutter warned employ-
ees at the Harrisonburg plant that they would suffer the
loss of health and hospital insurance if they engaged in
union activities and, in April, interrogated them regarding
their efforts on behalf of the Union, (f) on or about May
2, Supervisors Dorothy Smallwood and Hattie Lilly threat-
ened the Harrisonburg work complement with loss of exist-
ing health and hospital benefits if it embraced the union's
cause; (g) on or about April 18, President Milton Winograd
threatened to discharge Bridgewater employees and close
that facility in repnsal for their union activities and, in
April, interrogated employees at this plant regarding the
union sympathies and the collective desires of other employ-
' Unless otherwise indicated , all dates herein fall in 1968
493
ees; (h) on or about May 9, Plant Manager Cass Rutkiewicz
promised employees at the Harrisonburg operation addition-
al paid holidays if they voted against union representation
and, in April, questioned employees about their union activi-
ties and threatened them with reprisals for engaging in
said activities; (i) on or about May 9, Respondent disseminat-
ed literature threatening employees at both plants with
the forfeiture of health and hospital insurance in an effort
to dissuade them from selecting the Union as their represent-
ative and, in April, paid and otherwise assisted employees
in the dissemination of antiunion literature, and, (1) between
May 27, 1969 and April 2, 1969, Attorneys Henry C.
Clark, W Stephen Bradshaw, Lewis F Jolly, and William
R. Smith, and Investigator L Wayne Harper, all agents
of Repondent, interrogated employees at both plants con-
cerning their union inclmations.4 For its part, the Respond-
ent generally denies the commission of any labor practices
banned by the Statute, and urges that the election results
should stand.
B Procedural Background
On March 26, the Union filed a petition with the Board
in Case 5-RC-6363 seeking an election among all production
and maintenance employees, including shipping, receiving
employees and truckdrivers employed at Respondent's plants
in Harrisonburg and Bridgewater, Virginia. The election
was conducted on May 9 The resultant tally of ballots
showed that, of approximately 708 eligible voters, 315 cast
ballots for and 361 voted against the Union Seventeen
ballots were challenged, a number insufficient to affect
the results of the election. Two ballots were void.
Thereafter, on May 16, the Union filed Objections to
Conduct of Election and to Conduct of Employer Affecting
the Results of the Election. In his Report on Objections
filed on August 8, the Regional Director found that certain
of the Union's objections raised substantial and material
issues of fact which could best be resolved by a hearing
thereon ` On September 5, the Union filed exceptions to
the Director's report with the Board and, on October
31, that tribunal expanded the area of inquiry in its Order
Directing Hearing.' In the meantime, and on August 28,
the Union filed unfair labor practice charges with the
' At the hearing, the General Counsel moved to dismiss par 6(h)
of the complaint which alleged that "On or about May 1968, Supervisor
Eunice Zuka, at the Harrisonburg plant, threatened employees with loss
of employment in reprisal for their activities on behalf of the Union
Without opposition, the Trial Examiner granted the motion
' The Director recommended that a hearing be held on Objection
3, dealing with the alleged acts of interrogation by Plant Manager Nat
DeLeo and Supervisor Earnest Shifflett , and Shifflett 's alleged threat
of curtailment of, vacation benefits, Objections 4 and 10 relating to
President Milton Winograd's speech of April 18 to Bridgewater employees,
and remarks attributed to Areha Sterling , Earnest Shifflett , and Eunice
Zuka, and, Objection 5, insofar as it concerns the alleged offer by Plant
Manager Cass Rutkiewicz of an extended Memorial Day holiday for
employees He further recommended that the remainder of the Union's
objections be overruled in their entirety Inasmuch as I have, on the
General Counsel 's urging , dismissed the complaint wherein it alleges
Zuka's conduct as violative of the Act, which conduct finds its parallel
in Objections 4 and 10, 1 deem that aspect of the objections mooted
and I shall make no findings with respect thereto
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board asserting that, since March 14, the Respondent had
unlawfully refused to bargain with the Union in violation
of Section 8(a)(5) of the Act, and the Respondent otherwise
interfered with, restrained, and coerced employees in contra-
vention of Section 8(a)(1) On December 6, the Director
apprised the Union that he would not issue a complaint
on the Section 8(a)(5) allegation because, in his judgment,
it lacked merit Thereafter, the Union filed an appeal of
the Director's action in this regard with the General Counsel
in Washington, D.C. On December 27, the General Counsel
advised that the appeal had been taken under advisement.
On March 17, 1969, an agent of the Board informed
Respondent that he had been directed to pursue a further
investigation of the alleged violation of Section 8(a)(5).
and that he intended to interview all employees who had
signed authorization cards for the Union to ascertain the
validity of said documents. The Union's refusal-to-bargain
charge is still pending
C The Alleged Misconduct
1. Plant Manager Nat DeLeo
As indicated heretofore, the complaint alleges that, on
or about April 7, DeLeo interrogated employees about
their union activities and threatened to discipline them
if they supported the Union. Employee Roy Simmons,
who worked in the pressing department at the Harrisonburg
plant, testified that, approximately 3 weeks before the elec-
tion of May 9, he was summoned to DeLeo's office by
Supervisors Earnest Shifflett, Tommy Clayton, and Charlie
Wright. On direct examination by the General Counsel,
Simmons stated that, upon arriving in DeLeo's office, the
latter remarked, "We don't give you two chances and
this is your last chance and we hear you've been threatening
these people " Simmons protested that he had not threatened
any workers with physical harm because of their union
adherence. When questioned as to whether DeLeo made
any mention of the Union in this conversation, Simmons
replied, "I wouldn't want to say anything about that "
On cross-examination, Simmons was shown a statement
which he dictated at a union meeting on May 7. In this
statement, he recited that "Approx 1 month ago while
I was working Tommy Clayton and Earnest Shifflett told
me that Nat Deleo wanted to see me in the office. When
I went in Nat asked me how I was going to vote at
the election. I told him I didn't know and he told me
it was about time I was to make up my mind. He went
on to criticize my work. He accused me of threatening
him also. Something about beating him up on the street
' In its Order, the Board directed that the hearing also include matters
raised in Objections 6, 8, 9 and 14, as well as the "supervisory or
managerial status of Bonnie Alger" and "all incidents in which she
was involved " After presentation of his evidence relating to Objection
14, counsel for the Union moved to dismiss this Objection for failure
of proof and the motion was granted Counsel for the Union also moved
to abandon certain averments in Objection 6, which motion was also
granted, thus leaving viable only the averment that Respondent provided
"paid time before plant closing for employee members of [an Hourly
Employees'] committee to distribute on plant property, assisted by supervi-
sors, antiunion leaflets," which is labeled Par 6(o) in the complaint
He finished by saying, 'One more time and I'm going
to take action."' In a marginal note, Simmons added that
"Donnie Evans of the shipping department, Earnest Shifflett,
Tommie Clayton, and Charlie Wright all supervisors were
present [when] Nat DeLeo asked me how I was going
to vote" However, when pressed by counsel about the
truthfulness of this statement, Simmons confessed that
DeLeo did not in fact ask how Simmons intended to vote
in the election, that he, Simmons, did not respond that
he had not yet made a voting choice; and, that DeLeo
did not caution that it was time for Simmons to formulate
an electoral judgment. Moreover, Simmons also admitted
that he told an untruth when he stated that his supervisors
were present when DeLeo asked him "how I was going
to vote."
Juanelle Simmons, no relation to Roy, testimonially
recounted that, a few days prior to the election of May
9, President Milton Winograd delivered an address to all
the employees at the Bridgewater plant in which "he was
speaking about the benefits would be frozen if the union
came in." At the conclusion of his talk, Juanelle engaged
in a conversation with an employee seated behind her
during which the employee inquired as to what Winograd
meant by "freezing benefits." Juanelle proceeded to spell
out her understanding of the phrase. The employee expressed
dissatisfaction with her explanation, in consequence of which
both sought out DeLeo and the matter was placed before
him DeLeo thereupon escorted the two ladies to a bulletin
board which contained leaflets pertaining to an independent
plant in Russellville, Alabama, where a labor organization
had attempted to organize the employees When questioned
as to whether she recalled anything which DeLeo said
concerning that plant, Juanelle replied, "Well, one particular
thing he said, I don't remember exactly what the leaflet
said, but, it was something about they had three days
paid vacation before but afterwards they only got one
or something like that. I'm not quite sure what the leaflet
said." DeLeo asked Juanelle, "How much do you make"
on certain production items and she responded, "I make
a dollar forty-five a hundred " DeLeo commented, "well,
if the company and the union would negotiate, you might
get ninety-five cents."
On cross-examination, Juanelle acknowledged that, in
his speech, Winograd mentioned that all benefits would
be frozen pending negotiations with the Union if it won
the impending election. Juanelle also allowed as how DeLeo
told her at the bulletin board that, in negotiations, Respond-
ent "might obtain a rate of ninety-five cents" from the
Union and not that, in negotiations, her rate would be
lower.
Finally, Shirley Smith testified that, prior to the election
and on April 3, DeLeo called her into his office. Smith
beckoned a friend, Wilma Eavers, to accompany her
although Eavers had no apparent reason for auditing the
ensuing conversation. When the discussion commenced,
DeLeo "told me that it was my fault that he had to
fire Billy Messerly [Smith's bundle boy] because I constantly
talked to him about getting him to sign a union card
and talking union on company time and he had to transfer
him to another job and he didn't work out on that job
so he had to let him go" Smith proclaimed that she
METRO PANTS MFG CO 495
had not spoken with Messerly on company time "because
I know better "' Upon being asked whether DeLeo men-
tioned anything about the Union in their colloquy, Smith
stated that she could not recall . Queried whether she ever
had any conversations with the plant manager regarding
the Union , the witness replied that "He has talked to
me several times," but she then admitted that "Right offhand
I don 't recall , you know , just what was said " Smith conced-
ed that she had been quite active in the union campaign
by soliciting signed authorization cards from her fellow
employees , that it was well known throughout the plant
in Bridgewater that she was a union adherent , and that
DeLeo would have had no need to question her concerning
her union sympathies "Because it was known by everybody."
Moreover , Smith related that the entire content of her
conversation with DeLeo was embodied in a statement
which she gave to a Board agent , and she conceded that
there was nothing in that document to indicate that DeLeo
posited any inquiries to her regarding the Union
The General Counsel 's and the Union 's briefs are under-
standably silent regarding DeLeo's alleged threats to and
acts of interrogation respecting Roy Simmons , in light
of Simmons ' flat denials that DeLeo ever mentioned the
subject of the Union during their conversation on April
7 I find that the General Counsel has failed evidentially
to establish any statutory wrongdoing by DeLeo on this
occasion and I shall dismiss this aspect of the complaint
With respect to the incident testimonially reported by
Juanelle Simmons, DeLeo testified that Respondent 's Presi-
dent Winograd made a speech to the employees a few
days before the election in which he referred to "frozen
benefits" and that , following the address , Juanelle and
employee Wagner approached DeLeo to inquire about the
meaning of this phrase, and more specifically the meaning
of the word "negotiating ." DeLeo accompanied the women
to a nearby bulletin board Using Simmons' piece rate
as an example, which approximated $ 1.40 or $1.45 per
hundred items , DeLeo stated that "if this for any reason
was not a correct figure or if a change 'had to be made
to make this the correct price for this particular operation
it is subject to negotiation either upward or downward.
I think I mentioned to her that if her operation happened
to be a high paying price and there was an increase of
approximately $ 1.65 or $1 75 or decrease to $1 10 or 95t
a hundred it was done by negotiation ." DeLeo adamantly
denied that he told Juanelle or Wagner that their piece
rates would be cut in the event the Union was selected
as their bargaining agent.
As Juanelle Simmons admitted that DeLeo told her that
"if the company and the union would negotiate, you might
get ninety -five cents ," and that DeLeo did not announce
that , in negotiations , her rate would be reduced, I credit
DeLeo's testimony and find that he did not threaten that
piece rates would be lowered in consequence of a union
victory at the polls. I shall therefore dismiss this averment
from the pleadings.
' in answer to a question on cross-examination as to whether DeLeo
had accused her of pressing Messerly to execute a union card, she
retorted that "This was not true because I knew better than to do
anything like that" on company time
In his testimony , DeLeo placed his conversation with
Shirley Smith as occurring in November or December 1967,
some 3 months prior to the discharge of Bundle Boy
Messerly on March 9 He related that he had summoned
smith into his office to advise her that he had transferred
Messerly to another job because the latter had complained
of harrassment by Smith who sought to obtain a signed
union card from him during working hours. DeLeo, while
admitting that he warned Smith of possible disciplinary
action if she persisted in these activities on company time,
denied that he threatened to discipline her because of her
union allegiance.
The General Counsel contends that DeLeo's ban on
Smith 's solicitation of union membership on company time
offended Section 8(a)(1) because "there is no evidence in
the record that Respondent at any time had instituted
a no-solicitation rule, or had applied a no-solicitation rule,
so that such discussions would be permissible ." However,
this contention is belied by the General Counsel's own
exhibit . Appendix 24 to the Regional Director 's Report
on Objections , which counsel submitted into evidence, con-
sists of a notice which Respondent affixed to its bulletin
boards on April 9 and which reads as follows:
WE HAVE RECEIVED A COMPLAINT THAT
ONE OF OUR EMPLOYEES HAS BEEN TALKING
TO AND EXERTING PRESSURE ON THE PEO-
PLE DURING WORKING HOURS TO TURN
THEM AGAINST THE UNION TRYING TO
ORGANIZE THIS PLANT. IT IS A VIOLATION
OF METRO RULES TO HARRASS, COERCE,
THREATEN OR EXERT PRESSURE ON ANYONE
DURING WORKING TIME; WHETHER FOR OR
AGAINST THE UNION EVERY EMPLOYEE HAS
THE RIGHT TO OPENLY EXPRESS OPPOSITION
TO AND OPINIONS OF A UNION SO LONG
AS THIS IS DONE ON THEIR OWN TIME AND
DOES NOT INTERFERE WITH THE RIGHTS OF
OTHER EMPLOYEES. EMPLOYEES ENGAGED
IN THIS TYPE OF ACTIVITY EXPRESS THEIR
OWN VIEWS WHICH ARE NOT NECESSARILY
THE VIEWS OR POSITIONS OF METRO MAN-
AGEMENT [Emphasis supplied ]
METRO PANTS COMPANY
By: /s/ Milton M Winograd
Moreover , Smith , by her own admission , "knew better"
than to solicit for the Union during working hours. In
sum, I find that Respondent did not violate the Statute
by DeLeo's comments to Shirley Smith.
I therefore overrule Objection 3 insofar as it charges DeLeo
with preelection misconduct.
2. Bonnie Alger
The General Counsel maintains that Bonnie Alger, acting
either as a supervisor or a nonsupervisory agent of Respond-
ent, coercively interrogated employees at the Bridgewater
plant during April and thereby violated Section 8(a)(1).
It is undisputed and I find that, in 1966, a deceased
partner in Respondent decided to undertake cafeteria opera-
tions in the plant and Donald (Donnie) Evans, the shipping
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager at that time, was also designated as cafeteria
manager In order to operate the facility, Evans culled
the personnel records and noted that Alger, an employee
who worked on a piece rate basis in the sewing room,
had previously been employed as a cafeteria worker for
Howard Johnson restaurants. Evans approached Alger and
offered the cafeteria position to her and it was accepted
Concurrently, Evans hired a new employee named Eula
Estis to work with Alger Sometime thereafter, arrangements
were made by Evans for Ramona Rummel and another
production employee to assist in the lunchroom during
their meal breaks in return for a free lunch
It is also uncontroverted and I find that, following her
transfer to the cafeteria, Alger's piece rate basis of remunera-
tion was converted to an hourly rate and thereafter she
received a guaranteed weekly salary computed on the latter
basis. Alger's duties in the lunchroom consisted of manning
the cash register, and, in cooperation with Estis, peeling
potatoes to make french fries, inserting frankfurters in
buns, opening canned soups and heating them for consump-
tion, cleaning the cafeteria after its use, and dispensing
food At the conclusion of the work day, Evans or his
secretary removed the cash draw from the register and
accounted for the daily receipts which were retained by
him. It stands uncontradicted on this record and I find
that Alger has no authority to hire, discharge, or discipline
employees, or effectively to recommend such action; that
she cannot transfer, layoff, recall, or promote employees,
or grant time off or reprimand them, and that she does
not attend supervisory meetings and cannot park her vehicle
in spaces at the plant reserved for supervisors. Like Estis,
who concededly is an employee, Alger is authorized to
sign for cafeteria deliveries and may reorder food items
when stocks are low, but only to a level prearranged by
Evans, and she may not independently pledge Respondent's
credit Although Alger posted a little sign on the cafeteria
door characterizing her as the "manager" for a limited
period of time, this sign was fabricated by a "Dymo"
punch gun which was equally available to other employees
in the plant for their personal use.
Ramona Hummel testified that, a few weeks before the
representation election, she had finished serving customers
and was preparing to have her repast when Alger "asked
me if I was for the Union." Hummell replied that she
favored that organization, whereupon Alger inquired into
her reasons for such adherence. After Hummel noted that
"there was to [sic] many things went on at the plant
that weren't right," Alger stated, "Well, if I make arrange-
ments for you to talk to Mr. Winograd, will you talk
to him?" Hummell answered, "I'd rather not. . . it
wouldn't do any good because he wasn't out there all
the time and they didn't know everything that went on "
A few days later, Evans approached Hummel's machine
and told her that Winograd wished to see her in his
office Upon arriving in Winograd's quarters, and according
to Hummel, the former "asked me what one of my com-
plaints was and why and I told him that my biggest
one was for the Union because I wanted job security.
I wanted to know that when I come to work that morning
that I had a job when I went home that evening . and if I
had to be off for any reasonable length of time, I wanted to
make sure I got my job back " Winograd then asked what
the complaints of the other girls were, and Hummel
responded that this was none of her business and that if
Winograd desired to find out he should install a suggestion
box in the plant. Hummel conceded that at not time during
this conversation did Winograd mention anything about the
Union or union activity, or question her as to who was for
or against the Union in the plant
In his testimony, Winograd recalled that approximately
a month before the election he received a visit from Hummel
Either Evans and/or Alger had previously notified him
that Hummel wished to speak to him At the outset of
the meeting, Hummel expressed concern over her job securi-
ty and Winograd assured her that she would enjoy the
same security as existed in the past He was firm in his
denial that the subject of the union's campaign was dis-
cussed, a fact which Hummel corroborated in her testimonial
utterances.
Unaccountably, Alger was not summoned as a witness
in this proceeding and, therefore, Hummel's testimony
regarding Alger's interrogation regarding her union sympa-
thies stands undenied However, even though, as I herein
do find that this questioning occurred as Hummel reported,
I am not convinced that Respondent should be held account-
able for Alger's conduct. As chronicled above, Alger pos-
sessed none of the indicia of supervisory authority enumerat-
ed in Section 2(11) of the Act. She received and dispensed
monies, as would any cafeteria cashier, and performed
the same menial tasks as did Estis in peeling potatoes,
cleansing the area, and preparing and dispensing food.
Clearly, any directions which Alger might have given to
her cafeteria cohorts were purely routine in nature and
did not involve the utilization of independent judgement.
Accordingly, I find and conclude that Alger was not a
supervisor in the statutory sense at the times material
herein Nor am I convinced that Respondent had invested
her with agency status, as the General Counsel argues
In support of his argument, counsel points to the fact
that Alger placed a sticker on the cafeteria door proclaiming
her as the "manager," that she ordered large quantities
of food, and that she "evidently arranged for an interview"
between Hummel and Winograd. It is undisputed that
other employees could and did utilize a printing punch
to fabricate various signs, and there is nothing in this
record to demonstrate that the sign which Alger perfected
was mandated or condoned by Respondent In fact, Evans'
testimony is undisputed that the sticker was removed after
a brief appearance on the cafeteria door Nor is there
record evidence that Alger "ordered" vast qualtities of
food, as heretofore noted Finally, I am not convinced
that Alger's suggestion, made to Hummel, that she arrange
for an interview with Winograd, portrays anything more
than Alger's concern for the fears of a fellow employee
concerning her future terms and conditions of employment
in the event of the plant's unionization 8 I shall therefore
' The General Counsel and the Union also emphasize that Alger
served as the "secretary" of the "Hourly Employees" committee, and,
that, by occupying this position, she thereby served as an agent of
Respondent However, as noted elsewhere in this Decision, both of
these advocative parties abandoned any contention that the committee
was either nurtured by Respondent, or in any way harbored by it
METRO PANTS MFG. CO 497
dismiss the complaint insofar as it alleges that Respondent
violated Section 8(a)(1) by the conduct of Bonnie Alger,
and I shall also overrule the Union's objection which pertains
to her activities as a basis for upsetting the election.
For the sake of chronology, it might be well at this
juncture to consider the propriety of Winograd's conduct
during his meeting with Hummel Paragraph 6(n) of the
complaint charges that Winograd unlawfully interrogated
employees at the Bridgewater installation regarding their
union sympathies and those of other employees The General
Counsel advises that this allegation has reference to Wino-
grad's conversation with Hummel before the election. Wino-
grad testified that the did not summon Hummel to his
office on this occasion and there is nothing in the latter's
testimony which convincingly refutes this averment Wino-
grad further testified that at no time during his discussion
with Hummel was the subject of the Union broached,
and Hummel's testimony is patently corroborative of Wino-
grad's in this regard. Accordingly, I fail to perceive in
what manner the General Counsel has established that
"President Winograd interrogated employees concerning
their union sympathies and the union sympathies of other
employees." In the absence of probative evidence on this
issue, I shall dismiss the allegation from the pleadings.
The companion phase of the Union's objection is also
overruled.
(3)
3. The interrogation of Respondent 's employees by Clark, (4)
Bradshaw , Jolly, Smith , and Harper
(5)
The complaint charges that, between March 27 and April
2, 1969, Attorneys Henry C. Clark, W Stephen Bradshaw,
Lewis F Jolly, and William R. Smith, in addition to
Investigator L Wayne Harper, acting as Respondent's
agents, illegally interrogated employees concerning their
union sympathies, affiliations, and activities.'
At the hearing, the General Counsel and Respondent
stipulated that, between the aforesaid dates, the named
individuals undertook to interview all employees at Respond-
ent's plants in Harrisonburg and Bridgewater who had
been employed on March 13, the date on which the Union
made its initial demand for recognition. A total of 561
employees were privately and individually interviewed by
one of the aforementioned individuals Employees were
released from their normal duties by their respective supervi-
sors, who instructed them to report to the interviewing
room, and the interviews lasted approximately 10 minutes
each. With some minor variations, an interview was normally
conducted according to a standard format hereafter set forth-
My name is , I am an attorney with Clark &
Bradshaw who are attorneys for Metro Pants Co
As you know, an election was held on May 9,
1968, to determine if the employees wished to select
Amalgamated Clothing Workers Union as their bar-
' This allegation of the complaint is the only one which does not
find its parallel in the Union' s objections to the election Because of
chronology , this alleged misconduct could not, of course, have affected
the results of the election
gaining agent A majority of the employees did not
vote for the union.
After the election the union filed objections to the
election and has also filed unfair labor practice charges
against Metro Pants Company. Agents of the NLRB
have made investigations of the various objections and
charges and we are now advised that NLRB agents
intend to investigate the facts surrounding the signing
of union cards by various Metro employees.
In preparation of the defense of Metro on these
charges we would like to ask you several questions,
but first we want you to clearly understand that
(2) This statement is given in the presence of
Before I gave this statement and before he asked me any
question, Mr.- advised me that he worked for lawyers
of Metro Pants, that he was investigating an unfair
labor practice charge which had been filed against
Metro Pants before the National Labor Relations Board
in Case No. 5-CA-4183; that I was not requested
to answer any questions or make any statements if
I did not choose to do so; and that there would
be no reprisals or other actions taken against me
by Metro Pants because of any answers that I might
give to the questions or because of any statement
that I may make, regardless of the contents of such
statement
My mailing address is
I was employed at Metro Pants on ,196-, and
I am still employed
During the year 196 _ , I did (did not) sign a
(card) (petition) (paper) which pertained to Amalgamat-
ed Clothing Workers Union, the document referred
to was signed by me on or about ,196-
(6) At or before I signed the document referred to above
I was told the following about the document-
Subscribed and sworn to before me this
day of March, 1969.
Employees were requested to sign the completed statement
but were not required to do so. Approximately 50 refused
to give or sign a statement; approximately 65 gave statements
but refused to sign, and approximately 435 gave and signed
these statements.
The General Counsel called to the stand several employees
who testified regarding their interviews by Respondent's
attorneys and investigator However, in their briefs, neither
the General Counsel nor the Union seriously contend that
the interrogators departed from the above-stipulated format
but, rather, they rely upon the content of the questionnaire
to support their thesis of illegality 10 Additionally, the Union
10 In his brief, the General Counsel observed that "While Attorney
Clark varied from the text of the prepared form in making the interviews
which he conducted personally, other interrogators followed the form
recited in the stipulation " Beatrice Gums was the only witness summoned
by the General Counsel to report on Clark's interrogatory tactics After
careful review , I can divine nothing from her testimony which would
substantiate counsel's observation that Clark deviated from the prepared
form when he questioned Gums, and, I would note, counsel has not
directed my attention to any supportive evidence in this regard
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argues that the questioning exceeded the permissible bounds
of inquiry because the Board's Regional Office had not
filed a complaint against Respondent alleging a violation
of Section 8(a)(5) of the Act by unlawfully refusing to
bargain with that labor organization I first turn to a
treatment of the Union's alternate argument
As heretofore chronicled, the Union filed charges against
Respondent claiming that the latter had unlawfully rejected
the union's demand for recognition on March 14. These
charges were investigated by the Regional Office and were
dismissed on December 6 as lacking in merit The Union
appealed the dismissal and, on December 27, the General
Counsel of the Board advised the parties that the appeal
had been taken under advisement On March 17, 1969,
the Board informed Respondent that a renewed investigation
of the charges had been undertaken and that it intended
to interrogate the signatories of union authorization cards
to determine their authenticity. Respondent's agents under-
took their questioning between March 27 and April 2,
1969 At this late date, those charges are still hanging
over Respondent's head
In my opinion, it is sheer frivolity to assert that Respond-
ent is legally entitled to prepare its defense to a refusal-
to-bargain charge after a complaint has issued against it,
but not after a charge has been lodged. Nothing uncovered
by the Trial Examiner's independent research even remotely
suggests the prevalence of such a restrictive decisional
approach. The patent inequity which would arise from
that approach is particularly highlighted in the instant
proceeding. The refusal-to-bargain charge was filed on
August 28, 1968, based upon an alleged transgression of
Section 8(a)(5) on March 14, 1968. Almost 2 years have
elapsed since the critical date of rejection. In these circum-
stances, to thwart Respondent's inquiry into the validity
of authorization cards executed years earlier would impose
an intolerable burden upon it if, as is entirely possible,
the General Counsel should now or at some future date
decide to complain against the Respondent. Witnesses who
have signed cards which the Union utilized to support
its claim to majority status, as well as its unfair labor
practice charge, may have succumbed or removed themselves
from the locale, thereby impeding Respondent's ability to
investigate the circumstances surrounding the execution
of the designations. Moreover, Respondent should not be
burdened by inadequacy of time in which to conduct its
investigation following issuance of a complaint particularly
where, as here, 550 employees are involved." In short,
I find no merit in the Union's alternate contention
With regard to the major thrust advanced by the General
Counsel and the Union to pin statutory liability upon
Respondent for the agents' interrogatories, the Board, in
Johnnie's Poultry Co.,` announced the guidelines to be
utilized in determining whether an employer's (or his legal
agent's) interrogation of employees exceeded the bounds
of permissible exploration. The Board did so by noting:
" I would note that the complaint herein issued on August 13, and
the trial commenced on August 26
" 146 NLRB 770
In allowing an employer the privilege of ascertaining
the necessary facts from employees [to prepare its
defense for trial of a case], the Board and courts
have established specific safeguards designed to mini-
mize the coercive impact of such employer interroga-
tion Thus, the employer must communicate to the
employee the purpose of the questioning, assure him
that no reprisal will take place, and obtain his participa-
tion on a voluntary basis, the questioning must occure
in a context free from employer hostility to union
organization and must not be itself coercive in nature;
and the questions must not exceed the necessities of
the legitimate purpose by prying into other union matters,
eliciting information concerning an employee's subjective
state of mind, or otherwise interfering with the statutory
rights of employees. (Citations omitted) When an
employer transgresses the boundaries of these safe-
guards, he loses the benefits of the privilege [At 775.
Emphasis supplied.]
Neither of the proponents of this litigation seemingly have
any quarrel with the introductory phases of the questionnaire
or subparagraphs (1), (2), and (4). With respect to subpara-
graph (3), although these litigants are not entirely in harmo-
ny concerning the coercive impact of all of the alphabetized
subsections contained therein, " the main brunt of their
attack is that the subsections sought to elicit "information
concerning an employee's subjective state of mind" and
hence offended the guidelines set forth by the Board in
Johnnie's Poultry. I am not convinced that the General
Counsel and the Union have sustained their challenge to
the legality of the questionnaire.
The Respondent has been charged with unlawfully refus-
ing to bargain with the majority representative of its employ-
ees. To sustain a violation of Section 8(a)(5), it is incumbent
upon the General Counsel to prove that the Union possessed
a majority of delegations of bargaining authority, freely
obtained, validly signed, and timely dated. In defense of
these charges, Respondent is lawfully entitled to show that
the authorization cards were not dependable as valid designa-
tions for that labor organization because they were derived,
for example, through material misrepresentations to the
employees," or by acts of intimidation 15 To say, as do
the General Counsel and the Union, that Respondent's
attorneys should be precluded from asking employees wheth-
er they signed their cards because they feared the loss
of their jobs, because of threats and other pressures, or
because of their desire to rid themselves of the annoyance
of tandem solicitations would, in essence, foreclose a critical
and necessary inquiry, and thus deny to them the opportuni-
ty of demonstrating that their client was not a wrongdoer
because the Union had never in fact procured an uncoerced
majority of representational designations. So far as this
record stands, the attorneys did not seek to extract informa-
" The Union contends that it was unlawful for Respondent's attorneys
and investigator to pose the queries contained in subpar 3(a) through
(g) The General Counsel does not claim that the question covered
by subpar 3(b) was proscribed
" See Trend Mills, Inc, 154 NLRB 143
" See Purity Foods, Inc (Sar-More Food Stores), 150 NLRB 1523
METRO PANTS MFG CO 499
tion from employees concerning their "gripes" against
Respondent which led them into the Union's arms so
that Respondent could counteract and blunt the Union's
appeal by instituting attractive changes in wages and work-
ing conditions If my interpretation of the underscored
language in Johnnie's Poultry is correct, this is the type
of conduct which the Board sought to interdict when it
cautioned that the questions "must not exceed the necessities
of the legitimate purpose by prying into other union matters"
or must not be designed to elicit "information concerning
an employee's subjective state of mind "
The General Counsel can draw scant comfort from Tilton
Tanning Corp." In that case, the employer had indulged
in a series of unfair labor practices found by the Board
prior to the interrogation of employees by a company
official In addition, the Trial Examiner, with Board approv-
al, found that the assurance given to the employees that
they were "free" to answer or not to answer the questions
posed was "vague." Moreover, the employees were not
permitted to observe what the inquisitor wrote on the
questionnaire. In the instant case, there is no dispute that
Respondent's employees were amply apprised of the purpose
for the inquiries, were fully informed that their participation
in the investigation was entirely voluntary and that no
reprisals of any kind would be visited upon them regardless
of their answers, and were allowed to read their statements
before signing them. Furthermore, it seems clear that the
questions were not coercive in nature Finally, I have hereto-
fore found that the questioning did not occur in a context
of illegal hostility to the Union Accordingly, I find and
conclude that Respondent did not violate Section 8(a)(1)
of the Act by the interrogations conducted by Clark, Brad-
shaw, Jolly, Smith, or Harper."
4. Dissemination of literature relating to loss of health and
hospital insurance benefits, and threats to curtail those
benefits
The complaint alleges that, on May 9, immediately prior
to the election, Respondent circulated literature to employees
at both plants which threatened them with loss of certain
existing health and hospital insurance benefits in reprisal
for engaging in activities on behalf of the Union. It further
alleges that, on May 2, Supervisors Arelia Sterling, Ruth
Nutter, Dorothy Smallwood, and Hattie Lilly verbally
threatened employees at those plants with a similar loss
of benefits. The Union's Objection 4, consolidated for hear-
ing herein , states in pertinent part:
4. During the course of the pre-election campaign
the Employer by its agents and representatives threat-
ened loss of employment, plant closing, cancellation
of existing Blue Cross Insurance and Travelers Insur-
ance Company plans immediately upon the Union's
election.
Objection 9, also consolidated herein, avers that:
9 In the context of the prior threats of cancellation
of Blue Cross and other insurance benefits during
" 164 NLRB 1168.
" See Madison Brass Works, Inc, 161 NLRB 1206
the week preceding the election, the employer's distribu-
tion, the morning of the election at both plants, of
a letter from Assistant Manager of Western Division
of the Virginia Hospital Service Association, to the
Employer's President with bold faced comments includ-
ing 'No matter what Union says-Blue Cross Says
No! And They Know!' constitutes a threat and a
false and misleading statement to which the Union
had no opportunity to reply.
Inasmuch as these allegations and the objections raise sub-
stantially the same core problem, they will be treated collec-
tively here.
It is undisputed and I find that, for a number of years,
Respondent's employees have been covered by an insurance
program consisting of Blue Cross-Blue Shield group coverage
which is coordinated with and implemented by major medi-
cal insurance underwritten by the Travelers Insurance Com-
pany. The plan is available to the employee and his family
for which he pays half the cost with the Respondent bearing
the remainder Throughout its extensive campaign to orga-
nize the employees at the Harrisonburg and Bridgewater
plants, the Union widely publicized its own insurance pro-
gram which is carried by the union-owned Amalgamated
Life Insurance Company, Inc To bring this plan to the
attention of the employees, the Union distributed brochures
entitled "Insurance and Retirement Program for ACWA
Members in the Cotton Garment and Allied Industries."
A major attraction of the program was that it is financed
wholly by the employer through contributions based upon
a certain percentage of his payroll. Other attractive features
provide for surgical coverage up to $300, hospital benefits
up to $30 a day, and maternity benefits up to $200
Becoming aware that the matter of insurance coverage
had assumed prime proportions as an issue in the election
drive, Respondent dispatched a letter to its employees on
April 25 entitled "Hospitalization, Surgical, Sickness and
Accident Benefits," which was accompanied by a compari-
son of the benefits offered by the union plan and those
maintained by Respondent. In this letter, written over the
signature of President Winograd, Respondent stated that
"The union says all of these [benefits] will be free Let's
see just what free means. A comparison of the union
plan with the Metro plan is enclosed Check and see what
you have to lose on these benefits alone Under the Metro
plan you pay about one-half of the cost. But the union
plan is free! Isn't your present plan worth the difference
to you?"
Mildred Eavers testified that, approximately a week before
the election on May 9, a radio was turned on near her
work station and she overheard a paid advertisement spon-
sored by the Union which dealt with the subject of Blue
Cross insurance Supervisor Arelia Sterling was present
When the announcement ended , and according to Eavers,
"Mrs. Sterling said that if the Union got in that we would
not have Blue Cross."
Beatrice Gums worked at the Harrisonburg plant. She
testified that, on May 2, she engaged in a conversation
with Supervisor Ruth Nutter. Nutter approached Gums'
machine and commented that "if we voted the union in
on the day we voted that we wouldn't have no more
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blue Cross insurance " Gums remarked that she did not
believe that this would happen, to which Nutter replied
that "it would be dropped the day after we voted." Gums
opined that she could not understand how Blue Cross
insurance could possibly be abandoned prior to the end
of the month inasmuch as it had been paid up for the
month of May Nutter stated that program "would dust
be automatically cancelled right then" and the monies
refunded to the employees
Ruth Long was employed at the Harrisonburg plant
under the supervision of Dorothy Smallwood and Hattie
Lilly. She averred that, once each month, a Blue Cross
representative would visit the plant to answer any questions
which the employees might have about their coverage and
that the employees were free to make inquiries of him
About a week before the election, she decided to ask
the representative "if the Union won the election if I
could still keep my Blue Cross." Standing within earshot
were Smallwood and Lilly. Upon receiving Long's inquiry,
the representative replied that "you couldn't carry Blue
Cross if you are in the Union plan" and that "If the
Union won the election, that I couldn't carry Blue Cross
if I worked in a Union plant" because "the Union does
have insurance and you couldn't carry Blue Cross too "
Long then inquired whether she could maintain the Blue
Cross coverage privately and the representative responded
in the negative At this point, Lilly spoke up and said
"if we want to keep our Blue Cross we keep the union
out," and Smallwood added "If you want to keep the
Blue Cross you vote for the Company."
It is uncontroverted and I find that, on May 6, the
Union sent a letter to President Winograd, with copies
to Blue Cross representatives, accusing Winograd of having
sponsored and circulated false rumors that the Respondent
could cancel the Blue Cross insurance for its employees
if the Union won the election The letter further recited
that "These threats and undenied rumors on the part of
Management constitutes an unfair labor practice in violation
of Federal law, for which you, the Company and its Agents
will be held responsible. We challenge you to publicly
state by signed letter to the employees, or by other public
news media that you will cancel the employees Blue Cross
Coverage if they vote for the Amalgamated on May 9th.
Mr. Winograd, you cannot threaten to stop Blue Cross
Hospitalization Insurance and other benefits as a means
of frightening your employees , it is against the law " On
the same date, the Union mailed a leaflet to the employees
which bore the caption "The Amalgamated Clothing Work-
ers of America and The Federal Government Guarantees
You That The Company Cannot Legally Cancel Your
Blue Cross Insurance Coverage Because Of Your Vote
For The Union " The leaflet also set forth the contents
of the letter which the Union had mailed to Winograd
It is also uncontroverted and I find that, on the following
day, May 7, Winograd delivered a speech from a prepared
text to the employees at both factories With respect to
the subject of insurance, Winograd narrated:
Now you know as well as I do, that the Union owns
its own insurance company so they would much rather
have their own union insurance instead of the Blue
Cross and the Travelers. Now, we have been accused
of threatening to cancel the Blue Cross if the Union
wins. I want everybody to know this, and I want
everybody to hear it once again. Nobody from Metro
management has ever said anything like that and noth-
ing could be further from the truth. These lies have
been started and these untruths and these rumors
have been started elsewhere And again, let me repeat,
once again I want to repeat-and believe me I want
to get the exact words to you is that we have been
accused of threatening to cancel the Blue Cross if
the Union wins. This is not so. Nobody has ever
said anything like that. So we will all understand
each other, I am sure I will never have to repeat
it again.
I mentioned to you, through my letter of May 1
during negotiations all wages and fringe benefits are
frozen No change can be made until an agreement
is reached We do know that the Union has been
saying ever since this campaign of theirs started, that
they were going to get their insurance plan, which
is what they have been promising This is what their
leaflets say, this is what they want. We, I-Metro
management feel certain that this is not what you
want. Now remember that nobody can have both plans,
so this means only one thing If the union have their
way, they will get you the union plan and consequently
the Blue Cross and Traveler will necessarily have to
be dropped. This is understandable
Learning of Winograd's speeches and their content, the
Union purchased 30 minutes of air time on Harrisonburg
Radio Station WKCY for May 8 and, throughout the
day, the following spot announcement was made
Attention Metro employees Now that the company
has withdrawn any implication that your Blue Cross
coverage will be terminated automatically as a result
of a union victory, we pledge that for those of you
who wish to continue your Blue Cross coverage in
addition to our union insurance plan which we will
negotiate with the Metro Pants Company, arrangements
will be made for the continuance of such coverage
We have this arrangement in effect in other areas
This being our last radio announcement on behalf
of the Amalgamated, we wish you all the good fortune
in the world in your election tomorrow.
As Winograd made it abundantly clear in his speeches
of May 7 to all employees that the existing Blue Cross-
Blue Shield-Travelers Insurance program would not be
cancelled if the Union was victorious at the polls, but
that its continued existence would be the subject of negotia-
tions between the parties ,1e and as the Union in its radio
announcements of May 8 repeatedly brought this intelligence
to the employees, I am convinced and find that the salient
contention raised by the Union in Objection 4. namely,
" I would particularly note that General Counsel's witness Ruth Long
acknowledged that Winograd delivered this speech and announced that
"It [Blue Cross-Blue Shield -Travelers Insurance] wouldn't have been
dropped immediately "
METRO PANTS MFG CO.
that Respondent threatened the cancellation of "existing
Blue Cross Insurance and Travelers Insurance Company
plans immediately upon the Union's election, " lacks merit
and therefore cannot constitute grounds for upsetting the
election results. I shall, accordingly, overrule this Objection.
Concerned about the apparent confusion which existed
in the minds of the employees regarding the continued
Blue Cross-Blue Shield coverage in the event that the
union 's insurance plan was adopted in negotiations, Wino-
grad summoned Robert Dreschler to his office on May
7. Dreschler is a local insurance agent who services the
Travelers' insurance policies at Respondent's plants. When
Dreschler arrived, Winograd placed a call to H. Richard
Forrest, the Manager of the Western Division of Blue
Cross-Blue Shield and Dreschler then took the phone. Dres-
chler inquired as to what position Blue Cross-Blue Shield
would assume if the Respondent were to take group health
and accident insurance with another carrier, citing that
the possible other coverage might be the union's plan
Specifically, Dreschler asked whether Blue Cross-Blue Shield
would continue its group insurance at the plants if the
union's plan was adopted Forrest replied that he did not
know what his company would do and promised to look
into the matter Forrest thereupon telephoned his home
office where he spoke to the enrollment director and
informed him that Winograd sought the information because
of the many questions which the employees had raised
during the union campaign. Forrest testified that the director
was unsure of what course the carrier would pursue because
he had insufficient information before him relating to the
union 's indemnity plan. Forrest related that he knew what
was troubling his colleague because, a few months earlier,
they had established a group for a plant at Farmville,
Virginia, where the Union provided the coverage, but this
was a low indemnity policy issued on an individual basis,
i.e., the policy extended only to the employee and not
to his family, and the benefits were limited to $20 per
day for the hospital room and all extras." At this juncture,
Forrest decided to return Dreschler's call and obtain more
information
Forrest placed the telephone call and his uncontroverted
testimony regarding the content of their conversation goes
as follows:
I called Mr Dreschler back and I explained to him
that we would have to know more information as
to whether or not I could definitely tell him that
we would keep the group there or terminate it or
cancel it. I use the term `terminate' and `cancel ' They
might mean the same thing to you but we terminate
any group, but we would transfer the people to what
we call `pay direct,' that is, individual contracts. When
we cancel a group, the group is cancelled and all
contracts in that group are cancelled and the people
are not transferred to pay direct
" In the Regional Director 's Report on Objections, he states that
his independent investigation of this matter disclosed that the Farmville
plant was actually represented by the International Ladies ' Garment
Workers Union , AFL-CIO
501
So, in explaining this to Mr Dreschler about the
fact that we really couldn't make a decision at this
time he informed me on the proposed coverage that
might come into Metro Pants consisted of a contract
that allowed $30 a day for room, $300 for extras
and a $300 fee schedule and also covered the spouse
or the family of the employees.
I told him immediately that if Metro Pants secured
another carrier with that type of benefit that we would
cancel our Blue Cross-Blue Shield and the subscribers
presently enrolled under Blue Cross-Blue Shield would
not be transferred to pay direct and in this case,
after the contract was cancelled if the employee wanted
to continue Blue Cross they wouldn't be allowed to
if they submitted an application to Blue Cross-Blue
Shield It would be turned down because of our under-
writing policy which is on all of our literature for
non-group applications on that It states that if a
person was employed in a group of ten or more employ-
ees they are not eligible for a non-group contract.
He then asked me if I would then write a letter
to that effect Mr. Winograd would like such a letter
in that many of his employees were asking him what
would happen to Blue Cross-Blue Shield I said yes
I would write such a letter and then I hung up.
Forrest then telephoned his office and dictated a letter
to Winograd. After clearing its contents with counsel for
Blue Cross-Blue Shield, he personally delivered it to Wino-
grad The text of this letter reads:
Should Metro Pants Manufacturing Company acquire
other group hospitalization, I feel that you should
be advised of the terms of our Contract . . . which
states, `This Contract may be terminated by the Associ-
ation, without prior notice, if the group which the
Subscriber is a member contracts for any other hospital
or medical-surgical expense coverage '
Our normal practice is to cancel all contacts in the
group Under these conditions, non-group applications
would not be accepted from employees of Metro Pants
Manufacturing Company, since non-group membership
is not available to persons who work where there
are more than ten employees.
After reading the letter, Respondent's officials were appar-
ently satisfied that Winograd had adequately and truthfully
apprised the employees in his speeches on May 7 concerning
the impact on their Blue Cross-Blue Shield coverage in
the event the union plan was adopted. However, Respond-
ent's General Manager Irving Helbraun testified that, on
two occasions during the afternoon of May 8, he heard
the union's radio announcement in which that organization
pledged to obtain Blue Cross-Blue Shield coverage in addi-
tion to the union insurance for those employees who desired
it. Helbraun became concerned over the timing and content
of the announcement, in consequence of which he decided
to respond to the union's claim. That evening, he drafted
a leaflet and had it printed. In addition to a reproduction
of the letter which Respondent received from its insurance
carrier, the leaflet bore the bracketed language "[UNION
RADIO ADS & CALLS SAY YOU CAN GET BLUE
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CROSS TOO']" at the top, and "[NO MATTER WHAT
UNION SAYS-BLUE CROSS SAYS NO! AND THEY
KNOW"]" at the bottom The leaflet was distributed to
all employees as they entered the plants prior to the election
on May 9
On the basis of the evidence adduced on this issue,
I am not persuaded that the leaflet which Respondent
circulated on May 9 constituted a threat to the employees
that they would forfeit their Blue Cross-Blue Shield coverage
if they selected the Union, nor am I persuaded that the
document constituted a false and misleading statement
While Forrest's testimony indicates that his company, on
some occasions, does allow for dual coverage and does
permit group insurance in a plant where a union-funded
plan of health and hospitalization insurance obtains, his
testimony also makes it clear that such dual coverage
is tolerated by his company only where the union plan
is of a "low indemnity" character. Moreover, Forrest also
explained that his carrier was opposed to permitting employ-
ees covered by a union-sponsored program or any other
program to "pay direct" for Blue Cross-Blue Shield coverage
because, through expenence, it found that generally only
"high nsk" employees applied for the added insurance.
Furthermore, the record is completely devoid of evidence
that the Respondent and Blue Cross-Blue Shield were in
league to falsify the latter's insurance procedures, or that
it was not "normal practice" for that carrier to cancel
its coverage where other group insurance is obtained by
a company which employs in excess of 10 workers.
In short, I conclude that Respondent did not threaten
its employees with loss of health and hospitalization insur-
ance benefits when it distributed the leaflet on May 9,
and that the literature did not embody false and misleading
statements of the carrier's procedures to which the Union
should have been afforded an opportunity to reply I shall
therefore dismiss the complaint wherein it alleges that the
contests of the leaflet were violative of Section 8(a)(1),
and I shall also overrule Objection 9. Inasmuch as the
statements of Supervisors Sterling, Nutter, Smallwood, and
Lilly, made to employees Eavers, Gums, and Long, that
"if the Union got in that we would not have Blue Cross,"
were simply repetitive of what the supervisors and employees
had been told by the Blue Cross-Blue Shield representative
who visited the plant, and as these statements merely garrot-
ted the carrier's "normal policy," I shall dismiss so much
of the complaint as charges these supervisors with violations
of Section 8(a)(1) by their utterances regarding insurance
benefits I shall also overrule Objection 9 as it relates
to their statements 20
5. Respondent's assistance to employees in the
dissemination of antiunion literature
The complaint alleges that, "On or about April 1968,
at the Harrisonburg plant, Respondent paid and otherwise
30 Even if, as Gums testified , Supervisor Nutter stated that Blue Cross-
Blue Shield "would be dropped the day after we voted ," I do not
deem this utterance statutorily offensive or objectionable in view of
Winograd's clear and unequivocable assurances to the employees made
tihortl^ helore the eleLuon that "nothing uxild he farther from the truth
assisted employees in disseminating antiunion literature "
The Union's Objection 6, a companion of this allegation,
recites that:
The Employer by its officers, plant managers, supervi-
sors and its attorney, solicited, organized and planned
the formation and operation of an employee anti-union
movement designed to unduly influence employee senti-
ment, providing paid time before plant closing for
employee members of said committee to distribute
on plant property, assisted by supervisors, anti-union
leaflets; the design and printing of said leaflets were
planned by the Employer in conjunction with the
"Hourly Employees" committee
It is undisputed and I find that, at the height of the
Union's organizational campaign various antiunion employ-
ees formed an "Hourly Employees" committee to counteract
the Union's drive. Garland P. Showalter, the head mechanic
at the Harrisonburg plant, whom the Regional Director
found to be a rank-and-file employee in his Report on
Objections, launched this organization and only employees
were included in its cadre. The record discloses that, on
April 6, Showalter learned that the Union had mailed
a letter to the Respondent on the preceding day accusing
him of threatening and urging employees to vote against
the Union, and requesting that Respondent put a stop
to these activities. On April 9, Respondent notified its
employees that it was contrary to company rules for employ-
ees to threaten, harass or coerce employees, whether such
action was undertaken either for or against the Union
The Union's accusation prompted Showalter to consult
with his private attorney because he feared that the Union's
letter manifested an intent to charge him with unfair labor
practices. With the aid of the attorney, Showalter drafted
antiunion leaflets which were distributed to employees at
both plants under circumstances to be chronicled below
The record establishes, the parties agree, and I find that
Respondent took no part in planning the formation or
operation of the committee, and that it played no role
in the design of the committee's handbills or their printing.
Accordingly, and as indicated in a marginal reference herein-
above, the only viable portion of Objection 6 relates to
the averment that Respondent engaged in objectionable
conduct by "providing time before plant closing for employee
members of said committee to distribute on plant property,
assisted by supervisors, anti-union leaflets "
Showalter was in charge of distribution of the handbills
at the Harrisonburg installation and Clyde (Herby) Deviers,
a nonsupervisory presser at Bridgewater, performed this
chore at the latter plant. It is undisputed and I find that
these men interrogated employees during nonwork time
as to whether they desired to circulate the leaflets outside
the plants on certain days 21
The testimony in support of the allegation in the com-
plaint, as well as the relevant portion of Objection 6,
dealing with Respondent's charged misconduct in this
31 In his Report on Objections, the Regional Director concluded that
the leaflets did not contain objectionable material Neither the General
Counsel nor the Union argue contrariwise , and I so find
METRO PANTS MFG CO.
regard, was elicited by the General Counsel and the Union
from the following witnesses.
Carol Lam testified that, approximately 2 weeks before
the election, she observed 15 or 20 employees leave their
machines at the Bridgewater plant at 3.50 p.m to distribute
leaflets on the outside, despite the fact that the work
shift did not end until 4 p in She further testified that
she also noticed her floorlady standing outside the factory
dispensing handbills. The witness "assumed" that the pam-
phlets which the committee distributed were the same as
those proffered by the supervisors, but she subsequently
admitted that she was not certain that this was so. Lam
also received a leaflet from Union adherents that day
Patricia Dean, whose husband is employed by the Union,
worked at the Harrisonburg plant This witness recounted
that, on 4 or 5 days before the election, she noted that
some 30 or 40 girls left their machines approximately
10 or 12 minutes before the normal quitting time of 4.30
p.m. She then admitted, when shown her sworn affidavit,
that these premature departures occurred only on two occa-
sions. Dean also related that it was customary to cease
work at 4:25 p.m. in order to clean her machine and
prepare to check out, and that "If you want to leave
early you usually ask your supervisor " Dean further
testified that she saw both supervisors and "Hourly
Employees" committee members passing out literature
upon her release from work When asked whether both the
antiunion employees and the supervisors handed out the
same brochures, Dean replied "I guess so," although she
thereafter made the remarkable statement that she believed
the handbills were identical "because I didn't take any."
Finally, Dean conceded that she really did not know
whether the leaflets were the same.
It is Beatrice Gums' testimony that, on 2 or 3 days
prior to the election, "A few minutes before the bell rang
for us to leave our machines, a lot of girls got up and
left." An employee seated behind Gums informed the latter
that the girls were destined to handbill outside the factory.
After the employees departed their work stations, Gums
turned to Supervisor Glenn Hendrick, who was standing
near her, and "we asked him if we could go along with
them and he told us no." According to Gums, Hendrick
"said that we had to stay at our machines. He wouldn't
give us any reason why we couldn't."
Eugene Lawson is employed as a presser at Bridgewater.
He related that, a few weeks prior to the election he
observed employees quitting work approximately 5 minutes
before the end of the shift and this happenstance occurred
on more than one occasion. When questioned as to what
endeavors the departing employees intended to undertake,
Lawson stated that "At that time the pressers were punching
out a few minutes earlier than the rest of the employees
in order to get out of the parking lot before, you know,
before the rush at the gate and you know, everybody
was doing it And so, we'd get out a couple of minutes
before everybody else did and then when we'd get out
they would be standing at the door giving out leaflets
for the company." Lawson conceded, on cross-examination,
that he made it a practice of leaving work 5 minutes
503
before the end of the official work day, and as much
as 15 minutes before quitting time "when we run short "
He explained that he had never been "docked in pay"
for leaving early because "I work piece work I don't
get paid by the hour. I get paid for what I do." Lawson
also admitted that Respondent's officials never objected
to these early departures, whether to avoid rush traffic
or to distribute leaflets, provided the employees had attained
their piecework quotas for the day.
In a statement given to a Board agent, Lawson swore
that "I can verify that the Company released production
employees early to pass out leaflets on Tuesday, April
the 30th and on Friday, May the 3rd " To support his
claim testimonially, the witness recounted that "they went
out the door and they couldn't went out without the
supervisor's okay. So, I assumed that they did leave."
Nevertheless, he acknowledged that he proceeded out of
the very same door at the very same time and that he
punched the timeclock signifying his early absence from
the plant, and that two other pressers who occupied the
same position as Lawson were also early absentees. Lawson
further allowed as how he could have left work early
to distribute union literature "If the Union would have
asked me to help them." Finally, he admitted that the
leaflets which the "Hourly Employees" committee dispensed
bore the nomenclature of "Hourly Employees "
Other witnesses called by the General Counsel, such
as Ruby Hummel, Dorothy, Michael, and Ruth Hickman,
testified that they noticed employees quit work early on
two occasions prior to the balloting on May 9, approximately
15 minutes or less before the workday ended However,
these witnesses were unable to support the General Counsel's
and the Union's insistence that Respondent's supervisors
knowingly excused these absences, or that the supervisors
distributed the same leaflets as did the antiunion employees zz
Indeed, Hummel admitted asking her supervisor, Ruth Nut-
ter, where the employees were headed for when they left
early and Nutter "said she didn't know." Hummel also
conceded that she did not seek permission to leave work
prematurely She testified that she observed Nutter dispens-
ing leaflets after quitting time outside the plant, but acknowl-
edged that she was uncertain as to whether the contents
of Nutter's pamphlet originated from the "Hourly Employ-
ees" camp or the printing presses of Respondent.
The circumstances surrounding the distribution of
"Hourly Employees" leaflets were related by employees
Shirley Michael, Nancy McCray, and Clyde Deviers on
R spondent's behalf. Michael testified that, prior to the
election, she quit work on two occasions approximately
3 to 5 minutes before checkout time in order to hand
out literature for the committee. Michael noted that, on
each such occasion, she punched out on the timeclock.
Her testimony is uncontroverted and I find that Michael
" Hickman, a business agent of the Union, testified that no prounion
employee of Respondent assisted in the distribution of union literature
at the plants and, so far as appears, no union-oriented worker sought
permission from supervisors to leave work early to distribute union
literature
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is a pieceworker who was not a "makeup ," i.e, she had
already reached her production quota so that Respondent
would not have been subsidizing her absence She also
averred without contradiction that her departure was sponta-
neous and that she was unaware of whether her supervisor
saw her leave work
McCray was also a pieceworker who was not on
"makeup" on the two occasions when she assisted the
committee in circularizing antiunion leaflets, and therefore
her early departure from her duties on these occasions
before the election could not have been financially supported
by her employer . While McCray believed that her supervisor,
Burkeholder , observed her leave the plant before the end
of the shift , McCray opined that " I don't know whether
she knew where we were going ," although McCray added
that "She probably had an idea of what we were doing"
because "why else would we get up and leave?"
Finally, Clyde (Herbey) Deviers testified that he left
his job as a presser at Bridgewater to distribute pamphlets
for the committee on 2 days prior to the election although
his work shift had not ended . He testimonially reported
that he never sought the permission of his supervisor to
do so because, being employed on a piecerate basis, he
was permitted to depart work as much as 15 minutes
prior to the conclusion of his work day He also reported
that management eventually informed the employees that
they would not be allowed to leave work early.
Rounding out the testimony on this issue, Respondent's
General Manager Irving Helbraun testified without contra-
diction , based upon Respondent 's timecards , that some
employees quit work between 2 and 7 minutes before the
bell rang on two occasions before the election None of
the early departees were docked up in pay. However, his
records establish that , during the relevant periods , prounion
employees such as Mildred Juanita Nixon left work from
1 to 3 minutes before quitting time without loss of pay.
Helbraun also testified without dispute that it had been
"a policy over a long standing time that people did check
out early and we overlooked it and we didn 't dock them
for their pay. They were always paid for it with the possible
exception of any extended time over 15 minutes " On
April 30, he learned that a group of employees had collective-
ly left work early and Respondent 's officials decided to
monitor the situation for a recurrence . When he once
more learned that a number of employees had engaged
in this activity, he instructed his plant managers "to relay
through their supervisors that this was not to occur again,"
and the practice thereafter ceased.
I am not convinced on this record that the General
Counsel has established by a preponderance of the evidence
that Respondent "paid or otherwise assisted employees
in disseminating antiunion literature," nor am I persuaded
that the Union has hit the target of objectionable conduct
by Respondent 's activities in this regard . While it is true
that some employees at both plants declared a group recess
about 2 to 7 minutes before quitting time to offer their
services to the "Hourly Employees" committee in distribut-
ing antiunion literature, it is also true that other union
adherents enjoyed the same privilege of early departure
without loss of pay. Moreover , there is absolutely no evi-
dence spread upon this record which would indicate that
prounion employees either requested , or were denied , "equal
time" in which to campaign for that labor organization
and, as Lawson lamented , although he made it a practice
of leaving work early without suffering monetary loss,
he could have pressed the Union 's cause on these occasions,
"If the Union would have asked me to help them"" Further-
more, the record fails to demonstrate that any leaflets
distributed by the committee found their source in Respond-
ent. Accordingly , I find and conclude that Respondent
did not unlawfully pay or assist the antiunion employees
in the distribution of the "Hourly Employee" committee's
leaflets, and therefore it neither offended the provisions
of Section 8(a)(1) in this connection, nor did it thereby
upset the requisite laboratory conditions for the conduct
of a free and untrammeled election . I shall therefore dismiss
this allegation in the complaint , and overrule Objection
6
Because the Union ' s Objection 8 falls within the general
ambit of Objection 6, it will be treated at this juncture
Objection 8 recites that
The Employer by its President and other agents on
or about April 18th and 29th , 1968, and on other
occasions during the pre-election period permitted soli-
citations and discussions involving the campaign by
members of the employee committee described above
and other employees opposed to the Union on company
time and property while at the same time discriminatori-
ly prohibiting union solicitation or normal at work
conversation among supporters of the Union, the
Employer in this regard further encouraged company
supporters among the employees to leave their work
stations during work time for purposes of anti-union
discussions with management and condoned and
encouraged employees ' attendance at the same.
The only evidence relating to this objection is bottomed
in the testimony of Anice Michael and Patricia Dean.
Michael testified that , a week before the election , she was
counting certain production items when she overheard two
fellow employees discussing the adverse working conditions
which prevailed at a unionized plant in the vicinity
Michael 's attention to this conversation made her lose count
on several occasions . About this time, Supervisor Lillia
Turner approached and Michael complained about the
employees ' discussion and requested that Turner instruct
them to be quiet . However, the conversation continued
with Michael, herself, becoming a participant.
Patricia Dean related that , about a month before the
election, Supervisor Ruth Nutter summoned her to the
office of Plant Manager Cass Rutkiewicz . Upon her arrival,
Rutkiewicz told Dean that "he had gotten complaints from
a girl that I had been soliciting and I had approached
her to sign a union card during working hours and he
asked me if this was true." Dean denied that she had
engaged in this activity on company time, whereupon,
Rutkiewicz stated "Well, Patricia, you know, if I catch
you doing this it will cost you your job." Turning tol
23 See Superior Co., Inc, 94 NLRB 586, 587-88
METRO PANTS MFG. CO
Nutter, Dean remarked, "Ruth, you know that I do not
solicit on company time," to which Nutter replied, "Well,
little girl, I don't know because I am not around you
all the time "
On the basis of the foregoing testimony, I am hard-
pressed to understand how this evidence points up disparate
treatment by Respondent in allowing antiunion employees
to "talk it up" on company time while withholding this
privilege from prounion workers. Michael's complaint to
Supervisor Turner was not that she was refused permission
to speak on behalf of the Union, but that she was distracted
by a conversation which, for aught that appears on this
record, might not have had particular relationship with
the Union's campaign. Moreover, Michael, herself, joined
in the conversation. Accordingly, I conclude that the evi-
dence fails to establish that Respondent discriminatorily
curbed mplant discussions by prounion employees while,
at the same time, it permitted antiunion employees to
engage in such conversations. I shall therefore overrule
Objection 8.20
6. Winograd's speech of April 18 and the remarks attributed
to "npervisors Arelia Sterling and Earnest Shifflett
The complaint alleges that, on or about April 18,
Respondent's President Winograd threatened to discharge
employees at the Bridgewater plant and to close the plant in
reprisal against its employees' union activities The
pleadings further charge that, on the same date, Supervisor
Sterling uttered the same warnings, and that, in May,
Supervisor Shifflett threatened employees with loss of
vacation benefits because of their union adherence This
conduct is alleged to be objectionable by the Union in
Objection 10, which recited that, "In captive audience
speeches by the Employer on April 18th . . various threats
of plant closing, loss of jobs and probability of strikes with
attending hardships and loss of income were made."
With respect to Winograd's conduct on April 18, Clara
Myers testified on behalf of the General Counsel that
she was on her lunch hour that day with 20 or 30 other
employees when Winograd appeared in the plant. Gathering
the girls around him Winograd "said about the old shoe
place in Harrisonburg, about it closing down when the
union was in there And then he went on and said `If
you want to put your best friend out of a job, sign the
union card."' On cross-examination, Myers acknowledged
that it was very noisy in the plant at that time, that
she was standing at the periphery of the assemblage when
Winograd spoke, and that it was "Pretty hard to hear
what was going on." Myers claimed that, during the 5
or 6 minutes she listened to Winograd, he did not state
that the plant would continue to operate whether or not
the Union won the election; did not state that the plant
would close upon a union victory; did not remark that
" The complaint contains an allegation that Rutkiewicz interrogated
employees regarding their union activities and threatened them with
reprisals for supporting the Union, which has apparent reference to his
meeting with Dean In view of Respondent 's posted rule against solicitation
:)n company time , either for or against the Union , I conclude Rutkiewicz
was privileged to caution Dean, on pain of discharge , not to engage
n this activity I shall therefore dismiss this allegation from the complaint
505
the employees possessed the right to vote any way they
desired; and, did not respond to any question relating
to a lawsuit in court if the employees signed a union
card. According to Myers, all that she overheard was
"About the shoe plant closing down and about the Union-
if you want to put your close fnend out of a job, sign
a Union card."
Anice Michael testimonially related that, on April 18,
Winograd walked into the plant while she was having
lunch and she observed approximately 30 employees sur-
round him and commence asking him questions. Approach-
ing the group and standing 12 feet from Winograd, she
overheard "someone ask Mr Winograd if the Union got
in if the plant would close down and he said no, that
it would not close down and there there was more talking
and then I heard him say 'I want everyone to vote, vote
one way or the other, but you must remember, if you
vote yes, you could be voting you or one of your friends
out of a job "' Michael further testified that she remained
with the group for 12 minutes and that at no time during
his visit did Winograd say anything about "if the employees
signed a card they would be putting a friend out of a
fob."
Xie Shoemaker recalled Winograd's presence in the plant
on April 18 and she noticed some 30 employees gather
around him and pose questions. Shoemaker joined the assem-
blage and, in the din created by the sewing machines,
the blare of radios, and the conversations of employees,
she "heard him ask them [the assembled employees] if
they knew about the old shoe factory that used to be
in Harrisonburg and he said they had a union in there
and that they had to close down because of the union."
However, Shoemaker admitted that she did not hear any
of the questions which the girls asked Winograd and there-
fore did not hear the question which preceded Winograd's
statement regarding the "old shoe factory."
Shirley Smith testified that, 2 or 3 days before the election,
Winograd entered the plant and several employees gathered
around him. A short time later, she joined the group
and testified that "all I hear him say is `If you want
to vote your friends out of a job, vote Union and if
not, vote no union on election day "' Smith conceded
that it was very noisy in the plant and that she was
not standing very close to Winograd. Smith also admitted
that this was the only statement she overheard.
Various witnesses testified on behalf of Respondent con-
cerning this episode Doris Atkins averred that Winograd
visited the plant on or about April 18 and was barraged
with questions by the employees who gathered around
him Standing within 3 feet of Winograd, she heard an
employee inquire "If the Union card was signed, would
you be fired" and Winograd responded in the negative
The employees then "asked if we would be able to keep
on working like we had been and he said yes, that he
was still the owner of the plant. That we would work
like we had been." Atkins stated that Winograd made
no statement that the employees would cause the discharge
of their friends if they signed union authorization cards
or voted for the Union. Rather, he explained that "We
want you to vote regardless of how you vote. Whether
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you vote for the Union or whether you don't vote for
the Union, we want you to vote because it is supposed
to be confidential and no one is supposed to know how
you vote" According to Atkins, one of the women in
the group remarked that she remembered the old shoe
factory and "How long it was closed and because of the
Union and how it had threw them out of work for so
long " However, Atkins could not recall Winograd's
response.
Nancy McCray stated that she was present at what
was a question-and-answer session between Winograd and
a number of employees. A few of the girls had approached
him and proceeded to put questions to him. Some of
the women had asked McCray whether they would be
obligated to vote for the Union because they had executed
authorization cards. McCray replied that she did not know,
and relayed the inquiry to Winograd. In turn, Winograd
"said that even if they did sign a union card, they did
not have to vote for the Union and whichever way they
voted would not be known." Another employee asked how
her employment status would be affected if the Union
won the election despite her opposition to collective repre-
sentative Winograd's response was that "if the Union did
come in it would not affect those that did not want a
Union and even if the ones that voted for a Union and
it didn't come in, it wouldn't affect their jobs or how
they were treated either." McCray went on to state that
she remembered that the subject of the "old shoe factory"
was broached and that Winograd mentioned the shoe factory
as an example "like if the Union got in , like maybe it
brought up something, maybe something would eventually
become of the Union and we'd have to close down, not
because he wanted to close down. Not because he was
forcing it to close. Anything can happen." Winograd, in
the discussion, did not state that the Union would force
Respondent to close down and he assured the girls that
"you will still have your job" despite a Union victory
at the polls. Finally, she denied hearing Winograd say
that the girls would be placing the jobs of their friends
in jeopardy if they signed a union card or voted for that
organization.
Paul Tusing testified that Winograd came to the plant
on April 18 and engaged in a question -and-answer dialogue
with employees who approached him. In response to a
question, Winograd informed the employees that all were
free to vote as they wished without fear of reprisals, and
that "regardless of whether the Union got in or they
didn't, they are still going to have work to do. The plant
would still be going." Tusing further testified that he did
not hear any discussion concerning the shoe factory, and
that Winograd did not mention that employees would be
risking the employment status of their friends by voting
for the Union or signing a union card.
Clyde Deviers related that, on April 18 when Winograd
appeared at the plant, the girls crowded around him and
began asking questions. Some of the women asked questions
concerning their tenure if they signed authorization designa-
tions or voted for the Union, and Winograd replied that
"it would not make difference to anybody's job. The factory
would continue to run the same, Union or nonunion "
Deviers stated that the subject of the shoe factory was
brought up by one of the employees, not Winograd, with
the employee commenting "that the shoe factory would
still be here if it hadn't been for the Union that struck "
Finally, Deviers testified that Winograd did not tell the
assembled employees that a vote for the Union or signing
a card would adversely affect the employment security
of their fellow employees.
Several other employees who were called by Respondent
testified in the same vein as Atkins, McCray, Tusing, and
Deviers. When called to the stand, President Winograd
narrated his version of the April 18 incident He had
visited the plant on that day and, as he entered, several
girls approached him and began to ask questions and before
long between 20 and 50 employees gathered around him.
One employee posed the question of whether she was
required to vote for the Union if she executed an authoriza-
tion card and whether the plant would be closed if it
became unionized. Winograd "told them and told this to
everybody that if they sign the union card or if they
didn't sign the union card I hope that they would vote.
Nobody would know how they voted since it was a secret
ballot and it would be marked secretly. The only one
that would know was they themselves who voted " Winograd
added that "Whether the union comes in or whether the
union does not come in, Metro Pants Company will continue
on to run its business in a business manner." He staunchly
denied telling the employees that they would adversely
affect the jobs of their cohorts if they signed a card or
cast a ballot for the Union.
I credit the testimony of Winograd and that of the
Respondent's supportive witnesses because I deem the testi-
mony of the General Counsel's witnesses both implausible
and confused. Thus, for example, Clara Myers claimed
that, despite the noise in the plant which made it "Pretty
hard to hear what was going on" and the fact that she
was standing at a distance from Winograd, she nevertheless
overheard him talk about the old shoe plant "about it
closing down when the union was in there" and warn
that "If you want to put your best friend out of a job,
sign the union card," but did not hear Winograd state
that Respondent's plant would continue to operate. Anice
Michael, whose hearing also labored under raucous condi-
tions in the plant, heard Winograd assure the employees
that the plant would not shut its doors in the event of
a union victory. Moreover, Michael asserted that Winograd
told the girls that "if you vote yes, you could be voting
you or one of your friends out of a job," and yet Michael
was positive that Winograd did not state that "if the
employees signed a card they would be putting a friend
out of a job" as Myers claimed Furthermore, Michael
made no mention in her testimony of any statements by
Winograd regarding the shoe factory Xie Shoemaker, while
stating that she heard Winograd say that the shoe factory
"had a union in there and that they had to close down
because of the union ," admitted that she did not overhear
the question posed by an employee which preceded this
statement On the other hand, both Atkins and Deviers
testified that the issue of the shoe factory was raised by
an employee who remarked "How long it was closed and
METRO PANTS MFG CO.
because of the Union and how it had threw them out
of work for so long" and that "the shoe factory would
still be here if it hadn't been for the Union that struck."
Moreover, in light of the uncontradicted testimony of Wino-
grad and the other witnesses for Respondent that the Presi-
dent assured them that no reprisals would be taken against
anyone, whether a card signer or not, and that Respondent
would continue to operate the plant regardless of the out-
come of the election, I consider it unlikely if not implausible
that Winograd threatened the employees with discharge
if they voted for the Union or signed a union designation,
or that Respondent would close the installation. Further-
more, the testimony of all employee-witnesses on this phase
of the case makes it clear that Winograd did not deliver
a "speech" to a "captive audience" when he made his
visit on April 18 At the very least, his dialogue with
the employees resulted from a spontaneous desire on their
part to put at rest by Winograd's answers the various
questions which they had in mind concerning the union
campaign and the forthcoming election.
In sum , I conclude that the General Counsel has failed
to carry his burden of proving that, on April 18, Winograd
threatened to discharge employees for supporting the Union
and to close the plant in reprisal against their union activities,
and I shall therefore dismiss this allegation in the complaint.
I shall also overrule Objection 10.
I turn next to a consideration of the remarks of Supervisors
Shifflett and Sterling.
The only evidence regarding the alleged improprieties
in Shifflett's conduct came from employee Eugene Lawson.
The latter testified that, sometime prior to the election,
Shifflett came to his work station and inquired "who did
I think was going to win the election that was coming
up and I told him I didn't know. It was going to be
close." On another occasion before the balloting, Shifflett
again approached Lawson and asked "how did I think
the election was going to go and I told him I didn't
,now. I think it was going to be close and then he said
something about betting me on it and I told him if he
would give me the odds on the vote that he offered some
Df them other people around there that I would take
him. He offered them two to one edge on them [against
he Union]." Lawson reported that he had a third conversa-
ion with Shifflett before the election in which Shifflett
,said something about if the Union didn't get in we would
probably get another weeks vacation " Concluding Lawson's
estimony, he stated that he had worked with Shifflett
or 16 years at the plant, that a strong friendship had
leveloped between them, and that Lawson did not think
here was anything unusual about his supervisor wanting
o bet with him.
Shifflett testified that he has placed several small bets
vvith Lawson over the course of the years on a variety
3f events because of their close relationship. He denied
hat he had ever asked Lawson how the latter intended
o vote in the election, stating that he was aware from
Lawson's remarks that the latter was 100 percent behind
he Union Regarding the subject of vacations, Shifflett
estified that he had received many inquiries from Lawson
about such matters as possible wage increases and the
Union's handbilling and, on one occasion, Lawson queried
507
"You think we'll get a two weeks vacation this year?"
Shifflett replied "Lawson , you read the letter that the
vacation schedule was being studied and maybe if the
trouble hadn ' t started you might have gotten it." Shifflett
related that his response "was only my opinion" and he
so informed his questioner Shifflett explained that , before
the advent of the Union , the Respondent had taken under
consideration a plan to enlarge the vacation period from
1 to 2 weeks and that, when he spoke to Lawson, he
had in mind a letter which Respondent had distributed
on April 20 which was entitled "Three Weeks Paid Vacation
After One Year" and which is appended to the Regional
Director 's Report on Objections . In this letter , Respondent
reported that
This is the promise the union has been making. This
they say they have in all their contracts . THIS IS
A LIE. We have on file current Amalgamated contracts
providing for much less.
Metro management does not claim to be perfect but
it does claim to be better than what the union offers.
We have always been a leader in wages and benefits
in our industry in this area
Several years ago Metro decided to add a second
week of paid vacation in December , but in discussions
with employees it was felt that an extra week's pay
and the opportunity to work during this week was
the best because it gave everyone double pay at Christ-
man when it was most needed We still feel this decision
was right at the time it was made At the time the
present union campaign was started 18 months ago
the vacation policy was under study."
The complaint alleges, as do the objections, that Shifflett
unlawfully and objectionably interrogated employees con-
cerning union sympathies , affiliations, and activities, and
threatened employees with loss of vacation benefits if they
supported the Union I am not convinced that these allega-
tions have been sustained. Shifflett, by Lawson's own admis-
sion , did not ask Lawson how the latter or his fellow
employees felt about the Union or how he or they intended
to vote in the election . Shifflett and Lawson had been
friends of long standing and were accustomed to wager
among themselves on many matters of chance for small
sums . That Shifflett 's inquiry regarding the outcome of
the election was designed as an invitation to gamble on
its outcome is evidence by Lawson 's willingness to place
a bet if the "price was right " Under the circumstances,
I am unable to conclude that Shifflett 's inquiry was either
coercive in the Statutory sense or interfered with the results
of the election
With respect to Shifflett 's utterances concerning vacation
benefits, I credit Shifflett 's testimony that Lawson broached
the subject and that his comments had reference to a
letter which Respondent circulated to the employees shortly
before their conversation wherein the company indicated
that enlarged vacation periods had been under study at
the time the Union commenced its organizational campaign.
I deem Shifflett 's testimony reasonable when he stated
" There is no contention either by the General Counsel or the Union
that the contents of this letter were illegal or objectionable
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he simply brought to Lawson's attention the contents
of the letter and expressed his opinion the Respondent
might have implemented a more generous plan which it
had previously considered but that its hands were tied
because of the Union's campaign Accordingly, I am not
persuaded that Shifflett threatened Lawson that he would
forfeit vacation benefits if he adhered to the Union. I
shall therefore dismiss the complaint insofar as it charges
Respondent with a violation of Section 8(a)(1) by Shifflett's
conduct vis-a-vis Lawson and I shall overrule the pertinent
objections in this connection
Mildred Eavers testified that, about a week before the
election, while she was having lunch with employee Florence
Shepherd, the bell rang ending the lunch period and Shep-
herd announced that she had better return to work. Supervi-
sor Arelia Sterling, who was sitting nearby, thereupon
stated "Yes, that she [Sterling] was going back to work
because we probably wouldn't have work very long and
she was glad that her car and furniture were paid for."
However, Eavers affidavit given to a Board agent recites
that Sterling actually said "we may not have any work
soon." When summoned to the stand, Shepherd not only
denied that she overheard Sterling make any comment
about the availability of work but also denied that she
even knew an employee named Eavers. Sterling also testimo-
nially denied that she made any such remark as attributed
to her by Eavers. Shepherd and Sterling impressed me
as candid witnesses and I credit their testimony that Sterling
did not tell Eavers either that "we probably wouldn't have
work very long" or "we may not have any work soon."
Moreover, even assuming arguendo that Sterling uttered
these statements, I consider them, standing alone, too vague
and ambiguous to be characterized as a threat "to discharge
employees and to close respondent's plant in reprisal for
activities of employees on behalf of the Union." as the
General Counsel asserts in his complaint and the Union
raises in its Objections. I shall therefore dismiss the aspect
of the complaint relating to Sterling's utterances as well
as the parallel objections to the election based upon this
conduct.
7. The alleged promise by Plant Manager Cass Rutkiewicz
of additional paid holidays for employees
The complaint alleges that, on or about May 9, Plant
Manager Cass Rutkiewicz promised the employees at the
Harrisonburg plant additional paid holidays if they would
vote against union representation. Objection 5 also charges
as objectionable conduct that "The Employer made promises
of pay increases, holidays and other benefits if the employees
voted against the Union during the pre-election period."
Mildred Juanita Nixon testified that, a month before
the election, she and employee Hazel Hidecker, who sits
directly behind Nixon, were busily working when Rutkiew-
icz approached Nixon's station. Hidecker spoke up and
asked him whether "we'd get Friday off after Memorial
Day" which fell on the preceding Thursday. According
to Nixon, Rutkiewicz replied "If the Union doesn't get
in I will do my best [to] see that you do get off."
Rutkiewicz, who had been the manager at Respondent's
Harrisonburg plant, left Respondent's employ on some
undisclosed date prior to the hearing and moved to El
Paso, Texas Despite Respondent's efforts to summon his
attendance as a witness, Rutkiewicz refused to appear at
the trial in consequence of which Respondent produced
Hidecker and Betty Jennings to testify about this incident.
Hidecker averred that Rutkiewicz never mentioned the
subject of the Union during his conversations with her
and that Rutkiewicz did not at any time promise her
an extra paid holiday if she cast her ballot against the
Union. Betty Jennings, who worked directly behind Hideck-
er, also denied on the stand that Rutkiewicz made any
such promise.
Nixon was not a dispassionate or disinterested witness
Her daughter had been discharged by Respondent sometime
prior to this incident and she was quick to admit that
she was "quite unhappy over the fact" that Respondent
had terminated her kin I therefore credit the testimony
of Hidecker and Jennings and find that Rutkiewicz did
not promise employees an extra paid holiday in the event
they voted against the Union. Accordingly, I conclude
that Respondent did not offend the provisions of Section
8(a)(1) by Rutkiewicz' conduct and I shall dismiss the
complaint as it pertains to him. I shall also overrule Objec-
tion 5 insofar as it alleges that he engaged in conduct
which warrants setting the election aside.
CONCLUSIONS OF LAW
1 Respondent in engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3 The Respondent has not interfered with , restrained,
or coerced its employees in violation of Section 8(a)(1)
of the Act.
4. The Respondent has not engaged in pre-election con-
duct which warrants setting aside the election conducted
in Case 5-RC-6363.
RECOMMENDED ORDER
It is hereby ordered that complaint herein be, and it
hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the objections filed in
Case 5-RC-6363 which have been referred for decision
herein be overruled and that the results of the election
in the aforesaid case be certified.