N. M. S. Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 438 (N.L.R.B. 1969)

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. A. Olson Company , Division of N. M. S.
Industries, Inc. and Southern Council of Lumber
and Plywood Workers, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
Cases 26-CA-3275 and 26-RC-3375
December 16, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On September 2, 1969, Trial Examiner Josephine
H. Klein issued her Decision in the above -entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that certain of such
conduct interfered with an election held among
Respondents ' employees and recommended that
such election be set aside. The Trial Examiner
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint , and recommended that such allegations
be dismissed. Thereafter, the Respondent and the
General Counsel each filed exceptions to the Trial
Examiner's Decision and briefs.
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 trade at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner 's Decision , the exceptions , the 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
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, J. A. Olson Company,
'The Respondent contends that the Trial Examiner was biased and
denied it a fair hearing . We find no record support for these contentions
The Respondent further excepts to some of the Trial Examiner 's credibility
resolutions. It is the Board's established policy , however, not to overrule a
Trial Examiner 's resolutions as to credibility unless, as is the not the case
here , the preponderance of all the relevant evidence convinces us that they
are Incorrect . Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188
F 2d 362 (C.A. 3) We do not base any findings on Henry Seals'
uncorroborated testimony as such testimony is in our opinion too confused
and ambiguous to warrant reliance thereon.
Division of N. M. S. Industries , Inc., Winona,
Mississippi, its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner ' s Recommended Order.
IT IS FURTHER ORDERED that the election
conducted on March 6, 1969, among employees of
J. A. Olson Company, Division of N. M. S.
Industries , Inc., at its Winona , Mississippi , plant be,
and it hereby is, set aside.
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc, 156 NLRB 1236; N L R.B. v. Wyman-Gordon Company.
394 U. S. 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Respondent with the Regional Director for Region 26 within 7
days of the date of the Notice of Second Election . The Regional Director
shall make the list available to all parties to the election . No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed.
TRIAL EXAMINER'S DECISION AND
REPORT ON OBJECTIONS
STATEMENT OF THE CASE
JOSEPHINE ' H. KLEIN, Trial Examiner: This complaint,"
as amended,3 alleges that at various times and in specified
ways between December 30, 1968, and May 15, 1969,
Respondent, J. A. Olson Company, Division of N.M.S.
Industries, Inc., in contravention of Section 8(a)(1) of the
Act, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them by Section 7
of the Act.' Consolidated with the complaint for hearing
are certain objections by the Charging-Party Union,
Southern Council of Lumber & Plywood Workers, United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO, to the conduct of a consent election conducted
by the Board among Respondent's employees on March 6,
1969.
Pursuant to notice, these consolidated proceedings were
heard in Winona, Mississippi, on May 27 and 28, 1969.'
All parties were represented and were afforded full
opportunity to be heard, to introduce relevant evidence
and to examine and cross-examine witnesses. Oral
argument was waived. The General Counsel and
Respondent have filed briefs.
Upon consideration of the entire record,' observation of
the witnesses, and consideration of the briefs, the Trial
Examiner makes the following:
'Page 4 of the transcript is hereby corrected by changing "Joseph" to
"Josephine."
'Originally issued on March 27 , 1969, pursuant to a charge filed on
February 4, 1969
'On April I1 and May 5 and again at the commencement of the hearing
on May 27 . The amendment of May 5 recites that an amended charge was
filed on April 29. The amended charge was not included in the formal
documents introduced by the General Counsel, but Respondent does not
deny the allegation of its having been filed.
'National Labor Relations Act, as amended , 29 U.S C. Secs . 161 et seq
'The hearing was also convened on May 29, but the parties then stated
that they did not desire to present further evidence or oral argument
'Some errors in the transcript are corrected in the course of this
180 NLRB No. 76
J. A. OLSON COMPANY 439
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
A. Respondent, a Mississippi corporation, is engaged in
the manufacture of picture frames and mirrors at its plant
in Winona, Mississippi. In the course and conduct of its
business during the past 12 months, Respondent purchased
and received at its Winona, Mississippi, plant goods and
materials valued in excess of $50,000 directly from points
outside Mississippi and during the same period it sold and
shipped from its Winona location goods and materials
valued in excess of $50,000 directly to points outside
Mississippi. Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
B. The Union is now , and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Chronology
The Union commenced an organizational campaign
among Respondent's production and maintenance
employees, numbering approximately 400, around
December 10, 1968. On January 20, 1969, the Union filed
a representation petition and a stipulation for certification
upon consent election was entered on February 3. The
original charge , alleging interference , restraint and
coercion "[s]ince on or about December 17, 1968," was
filed on February 4, 1969.'
The election, held on March 6, was lost by the Union
by a vote of 269 to 99, with 10 ballots challenged. The
Union filed some 19 objections to Respondent's conduct
during the campaign. In a report issued on April 17, the
Regional Director recommended that 11 objections be
overruled and that the remaining 8 be consolidated with
the pending complaint for hearing by a Trial Examiner.
On May 5 the Board adopted the Regional Director's
recommendations.
As appears more specifically below, the complaint and
the objections to the election generally allege the same
facts. The present Decision will first deal with the
complaint, making requisite findings in connection
therewith, and then proceed to a recommended disposition
of the objections to the election.
B. The Evidence
The complaint and the briefs of the parties group the
numerous alleged violations of Section 8(a)(1) according
to the Respondent' s representatives who allegedly
committed the acts referred to. The present Decision will
follow the same organization in summarizing the evidence.
1. Robert Burst, production manager
Employee David A. (Duck) Green testified that in the
first week of January he was called into the office of
Robert Burst, then Respondent's Production Manager.
Burst said he had heard some union talk and Green said
Decision . Other errors have been noted but not specifically corrected
because they are self-evident and /or unsubstantial.
'The "Declaration " at the bottom of the charge is dated "January 3,
1969," which probably is an error, since the charge was date -stamped by
the Board 's Regional Office on February 4.
that he had too. Burst then asked who had spoken to
Green, to which Green replied that nobody had but, on
the contrary, he "contacted them." In answer to Burst's
next question , Green said that he was 100 percent for the
Union but denied that he had signed a union card. Green
disclosed that he had talked with employee Chester Smith
about the Union, but, in answer to Burst 's specific
question, Green said he had no knowledge of employee
Bobby Gass' being "in on" the Union. Green quoted
Burst as having said- "I think you are all making a bad
mistake.... It is going to be just like the shirt factory up
here. It is going to be a mess." Burst then expressed his
concern for the "old people."' According to Green, Burst
ended the conversation by telling Green to keep Burst
posted if Green heard anything more. On
cross-examination , Green conceded that Burst had not
said older employees would be fired but had stated only
that he was thinking of their welfare. Further Burst had
not said that the shirt factory was closed down or in any
other manner indicated what he considered to be the
"mess" there.
Respondent argues, with considerable persuasiveness,
that it is improbable that, as Green testified , Burst would
ask Green to report back on anything he heard about the
Union after Green had proclaimed his "100%" support
thereof. However, Burst was not called to testify' and thus
Green's testimony was uncontradicted. Further, Green's
demeanor impressed the Examiner as that of an honest
and conscientious witness . Accordingly, his testimony is
credited.
Employee William T. (Troy) Yates testified that around
January 15 he was asked by Burst how many people had
attended the union meeting which had been held the night
before. In response to a question by Yates, Burst said that
employee Pete Collins had "told him that."10 Yates
replied that Burst was "lying about that." Yates testified,
without objection, that Collins later denied having
informed Burst . The Examiner credits Yates' testimony.
2. F. O. Allread, supervisor of the cutting and joining
department
Employee Avery Peeler testified that sometime in
mid-January, a few hours after a supervisors' meeting had
been held, Allread asked him if he had his union card with
him. Peeler replied that he did not know he was supposed
to get one until after the Union had been voted in. Allread
testified that he initiated this conversation because he had
been informed that union cards were being distributed. He
admitted that he had not been told that Peeler had signed
a card or had distributed any. Allread maintained that he
was simply joking, as the two men consistently "picked
at" each other. Peeler, however, did not think Allread was
joking.
'At this point the transcript reads . "He said , `I am thinking of the
welfare of the whole people out there in the plant ." However, the
Examiner understood Green as having said "old" rather than "whole" and
Green's testimony on cross-examination confirms the Examiner's
understanding . Accordingly, Tr 1. 22, p. 10, is hereby corrected to change
the word "whole" to "did "
'It appears that Burst probably was present during part of the hearing
although there is no indication as to whether he was there voluntarily or
under subpoena . Burst is no longer employed by or otherwise connected
with Respondent and the record suggests that his dissociation from the
Company may not have been entirely amicable
"While Yates' language was not precise , the Examiner understood the
word "that" to refer to Yates' presence at the union meeting rather than to
the bare fact that a meeting had been held
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peeler testified that Allread then said he had been
informed by W. C. (Buck) McKeon, Respondent's
President , to tell each employee that if the Union came in
working conditions would not be the same and there
would be a discontinuance of the established practice of
the employees' quitting about 15 minutes early at the
luncheon recess and at the end of the day for the purpose
of washing up. Allread was not asked about this statement
and Peeler's testimony in this regard stood
uncontradicted.
According to Peeler, Allread proceeded to say that if
the Union came in "all the older people and the
handicapped would be laid off." Allread denied that he
had made any such statement in the conversation in
question, but conceded that in a conversation with several
employees he said that he "had heard" that the Company
and the Union could agree that no handicapped or older
workers would be employed. Allread was unable to recall
where he had heard this but denied that it had been from
McKeon or any other management representative. Allread
also acknowledged that in still another conversation with
several employees he had said that the Union "could
cause the plant to close."
Employee Eddie Corley testified that on or about
January 15 Allread approached him asked where his
Union card was. When Corley replied that he did not
think they were supposed to get cards until after the
Union was voted in, Allread said he was referring to the
authorization card that Corley had signed. Corley's
testimony continued:
I said, "You are guessing I am right in the
middle of it." He said, . if he did he would be
guessing right, wouldn't he?
Allread's testimony concerning this converation was:
I asked him what he thought of the union. He
said, "Why do you think I am for the union?" I said,
"Well, I am dust guessing that you are." He said,
"Well, you are right." He said, "I have never been for
a union before." And then he went on and told me why
he was for it this time. . . . I told him that was his
privilege to be for it... .
According to Corley, in the same conversation Allread
said that he had been told by McKeon to "talk to each
one in the department and find out what [they] wanted"
and that "Mr. McKeon said union or no union we were
not going to get more money until the plant made more
money. And it might cause the plant to close." Allread
conceded that he had told a group of three or four
employees that the Union could cause the plant to shut
down.
3. Fred Johnson, supervisor of the fitting department
One evening in the middle of January Fred Johnson
unsuccessfully tried to reach employee Vera Blaylock, who
did not work in Johnson's department. The next day,
when he asked her where she had been, she disclosed that
she had attended a union meeting . In answer to Johnson's
next question, Blaylock revealed that she was "100
percent" for the Union. He then told her she should "slow
up and think." According to Blaylock, Johnson also asked
where the union meeting had been held but she told him
she did not think that was any of his business. Most of
this testimony was substantially corroborated by
Blaylock's daughter, employee Elaine Rivers, who was
present during the conversation between Blaylock and
Johnson.
Blaylock further testified that later that day Johnson
told her that it was all right for her to be in favor of the
Union but advised her to be less out-spoken about her
opinion. According to Blaylock, Johnson said "he would
hate to see [her] lose [her] job." Rivers testified that
Johnson had told her to advise her mother "to be quiet or
get with it," to which Rivers had replied that she had tried
but her mother "wouldn't listen." Johnson did not deny
any part of the testimony of Blaylock and Rivers except
the statement that he had told Blaylock to "slow down."
The Examiner credits Blaylock and Rivers.
Employee William C. Erwin testified that around
January 13 Johnson asked him how he was going to vote;
Erwin replied that it was none of Johnson's business;
Johnson thereupon said that if the Union came in the
plant would close and if the Union lost those who had
been for it "might be looking for another fob." Erwin and
employee Troy Yates testified to a conversation that they,
together with employee Lee Dale Collins, had with
Johnson a day or two later. In answer to Johnson's
questioning, both Erwin and Yates said they were going to
vote for the Union. They both testified that Johnson said
that if the Union won the plant would be closed and if the
Union did not win the Company would get the names of
those who had signed Union cards and "it would be rough
on" them. According to Yates, Johnson also stated that
Union was already in the plant because a majority of the
employees had signed cards, but Yates maintained that an
election would be required. Johnson testified that the
conversation with Yates was started by Yates' saying he
had signed a union card. Johnson denied having asked
either Yates or Erwin how he intended to vote and having
said, as he was quoted, that the plant could be closed and
never missed. Johnson did not recall having asked Yates
how he felt about the Union. He did recall having
reported a "rumor" that the Union could come in without
an election if 75 percent of the employees signed cards.
Johnson conceded that he was "telling the employees most
anything about a strike [he] could hear to discourage
them." Though called as a witness by Respondent, Collins
was not examined about this conversation.
Erwin testified further that on three or four later
occasions Johnson asked him how he was going to vote
and on February 13 also asked him how John Price,
another employee, felt. Johnson did not specifically deny
this testimony, although he did generally deny having
questioned any employees concerning their Union
sympathies or voting intentions.
The Examiner credits the testimony of Yates and Erwin
concerning Johnson's statements.
4. Hazel McCorkle, supervisor of the metal leaf and
molding department
Employee Carolyn S. Palmertree testified concerning
several conversations she had with her supervisor, Hazel
McCorkle. Sometime around the first week of January,
right after attending a meeting of supervisors in McKeon's
office, McCorkle spoke individually to the employees in
her department. Palmertree testified that, at McCorkle's
request, she accompanied McCorkle to the loading dock
outside the building. Palmertree testified that McCorkle
said she had just come from a meeting with McKeon and
he was "on their side." This ambiguous statement was
never clarified. McCorkle asked if Palmertree had heard
anything about the Union and Palmertree answered in the
negative. McCorkle then asked Palmertree to report back
on anything she might later learn. Palmertree testified
J. A. OLSON COMPANY
that she was asked to get a Union card for McCorkle if
any were later distributed. Palmertree answered negatively
when McCorkle asked if Palmertree had signed a union
card McCorkle named two employees who she knew
favored the Union and then told Palmertree to discuss the
Union with other employees and find out what she could.
McCorkle conceded having taken Palmertree outside to
the dock but maintained that she did so only because
Palmertree seemed worried about something (presumably
her ailing baby) and McCorkle thought it would help
Palmertree to talk to somebody McCorkle also admitted
that this conversation had concerned only the Union. She
maintained that she had merely cautioned Palmertree
against talking about the Union and distributing cards
while at work because such activity was interfering with
the work; but McCorkle admitted that she had no
indication that Palmertree had been distributing cards.
McCorkle failed to explain how a discussion of the Union
might be calculated to allay Palmertree's apparent distress
about a personal problem Further, McCorkle conceded
that in another conversation she had asked Palmertree to
let McCorkle know if she later signed a card.
Palmertree testified that around the middle of January
McCorkle said that she was able to tell by looking at
them which employees were for the Union or had signed
cards. McCorkle identified Palmertree's husband as being
pro-Union but Palmertree replied that even she did not
know her husband's views on the subject. Later the same
day McCorkle expressed the opinion that employee David
Green was prounion and Palmertree replied that she
"wasn't talking because at that time [she] didn't know
enough about the union."
Palmertree also testified that at one time she asked
McCorkle whether employees would have to walk a picket
line if they belonged to the Union and McCorkle
answered that they would have to join the picket line
whether they belonged to the Union or not. Additionally,
McCorkle said that the Union "guaranteed" only 25
hours of work per week and that, under a Union rule,
employees would be sent home if they "goofed" on their
work three times and would have to make up for any
mistakes on their own time.
Sometime in January Palmertree asked McCorkle for
permission to leave work an hour early. In granting the
permission requested, McCorkle said that she knew why
Palmertree was making the request, but apparently neither
lady stated a reason. As a fact, Palmertree wanted the
time off because she was having a union meeting at her
home that evening. On the other hand, on several prior
occasions Palmertree had requested and been granted time
off because of her baby' s illness . The General Counsel
appears not to claim that this incident as violative of the
Act. In any event, the evidence is not sufficiently clear to
establish that, when granting Palmertree's request for time
off in January, McCorkle made any reference, direct or
implied, to Palmertree's union activities.
The final exchange between Palmertree and McCorkle,
as recounted by Palmertree, occurred on May 15, when
Palmertree told McCorkle that Palmertree had received a
subpoena to testify at the present hearing and preferred
not to. According to Palmertree, McCorkle then said that
Palmertree could be "sued" for what she had told a Board
agent about McCorkle and that the "Welfare" could take
Palmertree's baby away. Palmertree became very
disturbed by the latter statement and reported it to
McKeon. McKeon then spoke to McCorkle, who
thereupon apologized to Palmertree. According to
McCorkle, Palmertree's receipt of the subpoena led to a
441
jocular exchange between the two women concerning the
possibility of their occupying adjacent cells in jail. In the
course of this banter McCorkle asked who would take
care of Palmertree's baby in the event of Palmertree's
incarceration and McCorkle further suggested that
perhaps the "Welfare" would care for the baby.
McCorkle testified that at this point Palmertree became
alarmed and her anxiety was not alleviated by McCorkle's
assurance that she was only joking. McCorkle
corroborated the fact that, at McKeon's request, she later
apologized to Palmertree." As to this incident, the
Examiner generally credits McCorkle and finds that
Palmertree, overly anxious about her ailing child, simply
overreacted to McCorkle's well intentioned, if gauche,
"joshing."
Employee James K. (Tody) Downs, who had quit
Respondent's employ before the present hearing, testified
that around December 16, 1968, he signed a union card at
his work station. After he signed it, McCorkle, his
supervisor, walked over, took the card from him, read it,
and then put it down. Downs acknowledged that he had
shown the card to fellow employee Ernest Crowder and
had told 15 to 20 people that he had signed one.
According to McCorkle, Downs had specifically beckoned
to her before he signed the card and had then held the
card up for her to see. She simply told him that he had
better think about what he was doing because he might be
wrong.
The Examiner deems it unnecessary to resolve the
conflicts of testimony presented since, whichever version is
correct, the incident appears insignificant and devoid of
coercive content.' 2
Tody Downs further testified that around December 30,
1968, with nobody else present, McCorkle told him that if
the U nion came into the plant a lot of the older
employees would lose their jobs. McCorkle then asked
Downs if he would be sad if employee Crowder, who is
about 60 years old, lost his job because of the Union.
Downs answered in the negative , "because [Crowder] had
it explained to him and knew what the situation was."
McCorkle denied having said that a union victory would
lead to the discharge of older workers. She admitted,
however, that she had said that a union victory could
make things hard on handicapped workers. In this
connection , McCorkle testified:
Q. Did you tell them how the union would make it
hard on the handicapped people?
A I have a boy who is very much handicapped and
we give him the easy work to do at all times. . . I
have asked other employees there at the table to help
him any time that he has trouble. Up until now they
have. They have been real nice to him.
Q. Did you tell them that would change when the
union came in?
"Palmertree and McCorkle disagreed as to whether the possibility of
going to jail and the "Welfare 's" taking Palmertree 's baby were discussed
in the same conversation or on two separate occasions . This conflict
appears immaterial
"Downs testified that McCorkle also said that if the Union were to
come in the employees would get "more money but less hours of work."
According to Downs, employee Crowder, who was present at the time, said
that he would be happy to get more money for less work and Downs said
that that was what everybody would like There was no direct evidence as
to whether Crowder and Downs had consciously misconstrued McCorkle's
message or as to the extent to which the various remarks were intended
and/or understood as being joking On this state of the record the
Examiner could not find that McCorkle threatened a reduction in hours if
the Union won and no such allegation is made in the complaint.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. You can never tell
Q. Did you tell them it would change?
A. I said it could.
Q. It could change if the union came in?
A. Right.
Downs also testified that on January 30 he was asked
by McCorkle whether he thought Mr. Seeberg had more
money than Mr. Ebert." When Downs answered
affirmatively, McCorkle asked him whether he thought
Seeberg could afford to close the plant, to which Downs
again answered in the affirmative. McCorkle conceded
that she and Downs might have discussed the relative
wealth of Messrs. Seeberg and Ebert. She did not deny
Downs' testimony that she asked him if he thought
Seeberg could afford to close the plant." This
conversation took place on or about January 30, when the
election campaign was apparently very active. It appears
likely that McCorkle's remarks were intended to convey a
threat that Seeberg would, or at least "could", close the
plant if the Union won the election. However, Downs
testified that there was no direct mention of the Union in
the course of the conversation. In the absence of any
specific evidence expressly or impliedly relating
McCorkle's statements to the union campaign, the matter
is largely one of conjecture and the Examiner finds that
the General Counsel has failed to sustain his burden of
proof as to the alleged violation by McCorkle on January
30.
Employee Betty Ware testified that around the middle
of January McCorkle spoke to her alone in the restroom.
According to Ware, McCorkle said she had just attended
a supervisors' meeting at which McKeon spoke of the
union campaign . McCorkle then asked whether Ware
knew anything about the Union and whether she had
signed a card. Ware answered "yes" to the first question
and "no" to the second . Ware further said she would not
accede to McCorkle's request that Ware speak to other
employees about the Union. McCorkle testified that she
had spoken about the Union to three or four employees
and Ware probably was one of them. According to
McCorkle, however, the extent of the conversation was
McCorkle's saying, in effect: "I heard maybe union cards
were being passed and union talk going on and let's not
do it during working hours." McCorkle had not seen any
cards being passed out and, so far as appears, had no
reason to believe Ware had been distributing any or
talking about the Union. The Examiner credits Ware.
5 Dorothy Sanders , supervisor of the ornamenting
department
Employee Patricia Yates testified that on or about
January 15 she was spoken to by her supervisor, Dorothy
Sanders, who had attended a supervisors' meeting the day
"The transcript reads- "Q Will you tell us if you know who Mr
Seeberg is and who Mr. Abert is? A. [By Downs ] . Seeberg is the
president and owner of the plant . Mr. Abert is the foreman of it." The
Examiner understood Downs as saying Ebert was the "former owner"
rather than "foreman of it " The transcript is hereby corrected
accordingly The General Counsel ' s brief identifies Seeberg as "the
president of N.M .S Industries" and Ebert as "a former owner of the
plant ." Also, the name "Abert" is corrected to read "Ebert."
"in connection with this incident , McCorkle 's testimony on direct
examination was: "Q . Did you ever have a conversation with Mr. Downs
in which you discussed the wealth of Mr . Ebert and Mr. Seeberg? A I
could have there . He was always walking up and picking at me... Q (By
Mr. Miller ) Did he ever ask you if you thought Mr. Seeberg would close
down the plant? A I don 't remember that if he asked me that "
before. Sanders said that she had been instructed by
McKeon to talk to each of the employees in her
department. Sanders asked if Yates had been asked by
anybody to sign a union card, to which Yates replied that
she did not think it was any of Sanders' business.
According to Yates, Sanders then said that if the Union
came in employees would be sent home rather than being
temporarily reassigned to other duties when work became
slack. In response Yates said that recently her husband
had been laid off because of a slack in his work. Sanders
did not deny this testimony.'s
Sanders also asked Yates if she had been told that she
would be fired if she did not sign a union card. Yates
replied in the negative and then asked if Sanders was
saying, in effect, that Yates would be fired if she did sign
a card. Sanders answered in the negative.
Yates also testified that she overheard Sanders'
conversation with fellow employee Mildred Vance.
According to Yates, Sanders asked Vance if anybody had
spoken to her about the Union. When Vance said she did
not think it was any of Sanders' business, Sanders
complainingly asked why everybody got "smart" any time
she mentioned the Union.
Sanders confirmed the fact that around the middle of
January she had attended a supervisors' meeting at which
the Union was discussed. However, she denied that
McKeon had asked the supervisors to talk to their
employees and maintained that she had talked to each
employee in her department entirely on her own initiative.
According to Sanders, McKeon had instructed the
supervisors that they could not "promise or threaten or
question" the employees. Sanders said that she had told
each of the people in her department that she personally
did not favor the Union, did not want a union to come
into the plant, and hoped the employees felt the way she
did.
According to employee Ervie Lee Campbell, also on
January 15, Sanders asked Campbell what the latter
thought about the Union. When Campbell said she did
not know, Sanders said that Campbell would be fired if
she got "mixed up" (or "tangled up") with the Union. In
addition, according to Campbell, Sanders quoted McKeon
as having said that, whether the Union came in or not,
everybody would get a raise as soon as the Company
started to make more money. Campbell at that time said
that she thought that the way McKeon had given raises in
the past, on a selective basis, was "strange." Sanders
denied having said that Campbell would be fired if she
became involved with the Union. Sanders also denied
having asked Yates if the latter had signed a union card
or having asked Campbell and Vance if anybody had
spoken to them about the Union.
The Examiner credits the testimony of employees
Patricia Yates and Campbell concerning Sanders'
conduct.
"Sanders answered negatively when Respondent 's counsel asked her if
she had told Patricia Yates that "if the union came in they would be slack
on work ." However, Yates had not attributed any such statement to
Sanders. Sanders did not expressly deny having told Yates that if the
Union came in employees would be laid off when work was slack The
probability that she made such a statement is increased by the statement in
the text of McKeon 's March 5 speech that . ". in the long run, you can
see that if the Company is forced to tighten up its operation whenever
work begins to get the least bit slack and send people home early to save
costs, then a lot of people could wind up making less money in the long
run after a Union gets in the plant if unreasonable Union demands put
your Company in this position "
J. A. OLSON COMPANY 443
6. George Parker, mill room supervisor
On or shortly before February 27 the Union widely
distributed an announcement of a union meeting to be
held that evening , with Union Organizer J. A. Parker as
the speaker. During that day, Respondent's Mill Room
Supervisor, George Parker, joined a group of five
employees who were talking about the Union. George
Parker asked if Gayden was going to the meeting that
night to hear J. A. Parker. While the testimony is
somewhat unclear, it does appear that there was
considerable joking based on the congruence of the
surnames. Some or all of the participants in the
conversation said that they would willingly attend the
meeting and/or make a speech if they could receive the
large amount of money the union representative
presumably was being paid. The testimony concerning this
event was given by employee Owen Earl Gayden and
substantially corroborated by employee C. L. Flower." It
was not materially contradicted by Parker." The evidence
as a whole makes it clear that the conversation was
conducted in a good-natured, jocular vein, with no
suggestion of coercive intention or effect, actual or
potential. Nor can it be viewed as an apparent or actual
attempt by Parker to secure information concerning the
employees' union activities or sympathies.
7. Tom Jordan, leadman in the lumberyard
The complaint does not allege that leadman Tom
Jordan was a "supervisor," but rather designates him
simply as an "agent" of Respondent. However, in his
brief the General Counsel argues that Jordan was both a
"supervisor" and an " agent" of Respondent.
Jordan is the "leadman" of the lumberyard crew, which
consists of some 6 to 9 employees. He works directly
under George Parker, Mill Room Supervisor. Jordan is
paid on an hourly basis, punches a timeclock, and does
not attend supervisors' meetings , whereas the persons
called supervisors, including Parker, do not punch the
clock, are paid on a salary basis, and attend supervisory
meetings.
Parker spends most of his time in the millroom, which
is inside a building across a road from the lumberyard.
Jordan receives oral instructions from Parker around
three times a day, apparently most frequently in the
millroom, where he has to go quite often in the course of
his work. It is Jordan's obligation to see that the work is
done, as ordered by Parker. It is Jordan who makes the
specific work assignments to individual lumberyard
employees. In the main , however, the lumberyard work
appears to consist largely of stacking lumber, a routine
operation which is always done in the same manner.
In addition to directing the other employees, Jordan
does considerable physical labor himself. He also
frequently performs services at Parker's direction in
locations other than the lumberyard. On paydays, Jordan
gets the yard employees' paychecks from Parker and
distributes them among the men. Jordan grant§
employees' requests for time off, but only after checking
with Parker.
Former employee Rochester Radliff testified that he
had been informed of his layoff on April 26, 1969, by
Jordan 18 Employee Henry Seals" thereafter testified,
without objection, as follows.
Q. Do you know who recommended Mr. Radliff to
be laid off?
A. Mr. Tom Jordan.
Q. Why was he so recommended, do you know?
A. He told me.
Q. Who told you9
A. Mr. Jordan told me Rochester Radliff had gotten
real smart. That's why he laid him off.
While Seals' statement is clearly hearsay, since it was not
objected to, it stands as probative evidence. N L R.B v.
International Union of Operating Engineers, 443 F.2d 705
(C.A. 9). Although Respondent called both Jordan and
Parker as witnesses, neither was examined concerning
Radliff's layoff. Thus, there was no contradiction of the
testimony to the effect that Jordan had laid an employee
off In particular, there was no contradiction of Seals'
testimony, which excluded the possible inference that
Jordan had merely informed Radliff of action taken by
Parker.
Additionally, although Jordan is over only about six
employees, whereas the persons called foremen or
supervisors apparently have from 25 to 40 persons under
them, Jordan is the only person who actually directs work
in the yard, with no higher ranking person present. Rafael
Vega v. N.L.R.B., 341 F.2d 576 (C.A. 1), cert. denied 382
U. S. 862 ; Butte Medical Properties, 168 NLRB No. 52.
The Examiner accordingly finds that Jordan is a
supervisor within the statutory definition.
In any event, there can be little doubt that Jordan "did
exercise general authority over the employees and [was] in
a strategic position to translate to [his] subordinates the
policies and desires of management," I.A M. v. N.L.R B..
311 U.S. 72, 80. Thus, even if Jordan were found not to
be a "supervisor," Respondent would be responsible for
Jordan's conduct during the campaign. Technical
Maintenance, Inc, 172 NLRB No. 60, TXD.
Employee Radliff testified that on February 11 Jordan,
having just come from the Company's office, told
employees Seals and Radliff that Jordan "had news" that
if the Union came in, under a union rule , all employees 45
or more years old would be fired and would be unable to
receive unemployment compensation. Seals substantially
corroborated Radliffs testimony, adding that in a later
conversation Jordan expressed concern over his own job,
since he is over 45, and said that Seals, who is 44, "won't
have many more days here." Jordan admitted having
spoken concerning the problem of older workers,
testifying as follows:
Q. Did you ever tell Henry Seals all men over 45
would be fired if the union came in?
A. I did make that statement on this ground that if
the union came in older fellows like myself would have
possibly a chance, it would be rough on us. I did make
that statement. I didn't say nothing about being fired.
Jordan did not indicate that he had stated any basis for
his fear. The Examiner credits the testimony of Radliff
and Seals.
"Minor discrepancies between the testimony of the two men are
insignificant.
"Supervisor Parker testified that one of the employees first mentioned
the forthcoming meeting . He then testified : "Q. During that conversation
you asked Owen Earl Gayden if he was going to see Mr. [J. A .] Parker?
A I asked him to come in and hear me speak "
"This was his second layoff On January 10, 1969, Parker had laid
Radliff off
"The General Counsel's motion to correct the transcript to show this
man's name as "Seals" rather than "Sears," as it now appears, is hereby
granted
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Seals testified that on March 5 Jordan
requested Seals to attend a Union meeting scheduled for
that evening and to report back to Jordan, who said he
would pay Seals for doing so. Jordan did not deny this
testimony.20 Seals attended the meeting and the next day
spoke to Jordan. Jordan asked Seals who had attended
the meeting and inquired specifically about a few named
employees. Seals' replies were not very informative.
Radliff corroborated Seals' testimony concerning the
conversation of March 6 Jordan denied that he had asked
Seals what went on at the meeting . The Examiner credits
Seals' and Radliff's testimony as to these events of March
5 and 6.21
Seals further testified that on March 6, in answer to
questions by Seals, Jordan said that if the Union did not
win, "we are going to run the union men clear out of the
country" and that if the Union did win, "We are going to
shut the damn plant down" and the persons thus
discharged would be unable to secure unemployment
compensation. Jordan did not deny this testimony" and it
is credited.
On direct examination Seals testified as follows
concerning a conversation which he and employee Logan
had with Jordan on March 5:
A. [Jordan] said if we want to run this plant like it
ought to be run with Negro mens and womens through
the plant throughout the plant. And he said you will
have to foreclose.
Q. . . . did he say anything about the Union and
Negro employees'
A. He said if the union came in the plant we would
shut the damn plant down.
* * *
Q. Do you recall anything being said about the union
requiring more Negro employees being hired?
A. Yes.
Q. Who said that?
A. Mr. Jordan.
On cross-examination, Seals testified-
Q. What did [Jordan] say about the Civil Rights
Act?
A. He asked me he said if we want to keep this plant
like it are throughout the plant he said, if the Civil
Rights get in here we will be working hand to hand
throughout the plant. He said if the Union comes vote
no, and it will be just like we are.
Jordan was not specifically questioned about this
conversation23 and thus it was essentially undenied.2'
"in answer to questions by Respondent 's counsel, Jordan did deny
having offered to pay employee Logan for attending a union meeting and
reporting back to Jordan (The record contains the names " Longgins,"
"Loggins" and "Logan " The Examiner understood all these references to
be to "Henry Logan ")
"This credibility finding is made despite an inconsistency between Seals'
testimony and a pretrial statement by him as to an unrelated fact, namely,
the extent of Jordan ' s physical labor on the job. Cf N L.R B v
Winn-Dixie . Stores, Inc. 414 F 2d 786 (C A. 5), fn 2 While Seals was
quite inarticulate and sometimes confused, he impressed the Examiner as
generally honest and reliable
"Jordan denied having told Radliff "that if the Union came in it would
close the plant" or having said to Logan that "if the Union won they
would shut the plant down ." However, Jordan was not questioned
concerning Seals testimony that Jordan had said , in effect , that the
Company would close the plant in the event of a union victory
"No reference was made to any racial question in course of Jordan's
While Seals' testimony is not entirely clear, its purport
becomes clear when it is considered in context. The
important contextual facts are that Seals and Logan are
Negroes, while Jordan is white; Jordan was outspokenly
opposed to the Union; and there is a pattern of racial
segregation within the plant.i3 With this background, and
bearing in mind the sequence of Seals' testimony, the
Examiner construes it as meaning that Jordan said, in
effect, that the Union would insist on enforcement of the
Civil Rights Act, with the hiring of more Negroes and
resultant racial integration, and that Respondent would
shut the plant down rather than accept such a situation.
However, the complaint alleges only that Jordan said that
unionization "would result in the hiring of a greater
number of Negro employees and the enforced association
of Negro and white employees throughout the plant." The
undisputed evidence clearly establishes this factual
allegation. It is therefore unnecessary to make a further
finding that this statement was coupled with a threat of
plant closure and the Examiner does not specifically make
any such finding.
8. W. C. McKeon, president
The complaint, as amended on April 11, alleges that
"on or about March 5" Respondent's President, W C.
(Buck) McKeon, threatened reduction in the workweek
and plant closure if the employees elected to be
represented by the Union. In support of these allegations
the General Counsel presented employee testimony
concerning a speech made to all the employees the day
before the election, dust prior to the 24-hour period
Employee Gayden testified that McKeon first said that
he had to speak more than 24 hours before the election
because it would be a violation of the law to speak during
the 24 hours immediately preceding the election. Gayden
continued.
[McKeon] also said if we voted the Union in, - he
said he could shut the plant down but he never did say
he would shut it down. He said he could shut it down
On redirect examination, Gayden repeated that McKeon
"only said he could shut the plant down if he wanted to
and the Union couldn't do anything about it." According
to Gayden, McKeon also said that if it came in, the
Union would cut the working hours:
He said if the Union would cut all wages down to 32
hours a week. He said if anyone worked over 30 or 32
hours a week he would, Mr. McKeon himself would
have to get more information from the union
representative before he could let anyone work over 32
hours a week.
In answer to leading questions on cross-examination,
Gayden recalled, somewhat vaguely, McKeon's having
said that he would have to "talk" with the Union but that
the Union could not, in the words of Respondent's
counsel, "automatically make the company do anything."
McKeon also "said the Union didn't sign your paycheck
and they didn't hire you and they wouldn't fire you."
Gayden was unable to recall other specific statements
testimony . Although Jordan denied any recollection of any conversations
with Radliff, Logan or Seals concerning the Union, almost immediately
thereafter he acknowledged having spoken to Seals about the possible
adverse effect unionization might have on older employees
"In its brief, Respondent appears not to question Seals' testimony.
"On cross-examination , Seals testified "Q Is it the practice with Olson
that the colored employees and the white employees work side by side9
A No, sir " There was no other relevant evidence.
J. A. OLSON COMPANY
attributed to McKeon in the form of leading questions by
Respondent's Counsel. According to Gayden, McKeon
was "doing both, speaking and reading. He would look
down on some paper and he would look up and just talk a
while."
Employee Troy Yates also recalled McKeon's starting
by referring to the 24-hour rule. Yates' direct testimony
concerning the speech was:
[McKeon] said in this speech that he could or would
close the plant.
Q. When [you] said could or would [did] you mean
he said both or you don't remember which?
A. I don't remember which he said . he said one
or the other . . . . [i]f the union came in.... He said
about a 32 hour week that if [the Union] came in they
would be cut down to a 32 hour week.
In answer to leading questions on cross-examination,
Yates was unable to recall any specific statements by
McKeon except that, in counsel's words, "the company
would operate as best it could if there was a strike" and
that "the union couldn't make the company do anything."
On cross-examination Yates also testified:
Q. (By Mr. Bowling) Did he say anything about you
could lose through negotiations?
A. He said he didn't have to sit down and bargain
with them on anything.
* * *
Q. Are you sure that's what he said? Didn't he say
he would negotiate?
A. I do not remember him saying that.
Respondent's counsel then proceeded to question Yates
about an employee meeting held a day or two earlier, at
which McKeon had projected slides on a screen and had
apparently circulated among the employees a marked
copy of the Board's Regulations and the Act. Yates'
testimony concerning the slide presentation was, in part,
as follows:
Q. (By Mr. Bowling) Do you remember his showing
a page of this book up on the screen'?
A. He showed us so much I don't remember what he
showed us.
Q. Do you remember him reading something the law
says that the company had to negotiate, but such
negotiations did not require either party to make a
concession'?
Do you remember him reading that?
A. He read so much I don't know.
* * * * *
Q. . . Do you recall him showing you parts of this
book [ just identified, on the screen, right?
A. I remember him showing parts of that.
Q. Do you remember his reading parts of the book
on the screen to you, don't you?
A. I reckon it came out of that book he read off the
screen.
Without indicating that he was turning from the slide
presentation to the "Twenty-four Hour Speech" of March
5, counsel proceeded to cross-examine Yates as follows:
Q. You don' t recall Mr . McKeon saying negotiations
could go up and go down?
A. I don' t remember that.
Q. Did you hear anything about you could wind up
with less?
445
A. I don't think anything could be less than $1.60 an
hour.
Q. I am not asking you what you think. I asked you
if Mr. McKeon said it could be less?
A I don't know that.
Q. Did he say maybe the union and company would
get together and make a counter proposal for 32 hours;
did he say that?
A He didn't say that.
Q. Did he say he had a right to propose 32 hours9
A He just made a statement about a 32 hour week.
Q. He said definitely if the union came in there
would be a 32 hour week?
A He didn't say definitely. He said there would be a
32 hour week.
Q. There could be a 32 hour week. But you do not
recall him saying anything at all about talking to the
union about it? Do you9
A. No, sir.
On further cross-examination, Yates recalled McKeon's
having said in the March 5 speech that he would give the
employees written guarantees that, in counsel's words,
"nobody would lose their fobs " Yates said that McKeon
spoke of the written guarantees on two occasions but
Yates did not recall McKeon's having called for a show of
hands by those employees who wanted such a guarantee.
Counsel then returned to McKeon's statements concerning
negotiations with the Union:
Q. He didn't say anything about negotiating with the
Union?
A. He said he didn't have to negotiate a contract
with them.
* * * * *
Q. What do you remember him saying about the
contract?
A. Just what I told you. He did not have to negotiate
a contract with the Union.
Q. Do you recall him saying he would not negotiate?
A. No, I don't remember him saying that.
Yates was unable to recall other specific statements
attributed to McKeon in leading questions by
Respondent's counsel. Counsel then returned to the
question of reduction in hours, as follows:
Q. Did he say to make the best deal with the union
the company would have the right to reduce working
hours; did he say that? .. .
A. I don't remember.
Employee Calvin D. Brown testified as follows
concerning McKeon's March 5 speech:
. I recall him saying that if the union got in the
plant it would cut our hours to 32 hours a week.
I also recall him saying if it got in he could move the
plant or he could close it down.
Q. He could move it or close it? Did he say either of
both?
A. He said both
Brown testified that McKeon then asked how many of the
employees had received guarantees from the Union and
how many would like a guarantee from the Company.
Brown did not see any hands raised On cross-examination
he substantially repeated his direct testimony, adding that
he did not remember "what kind of guarantee" McKeon
mentioned - "I just remember him saying a guarantee."
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's counsel then started to question Brown
concerning McKeon's slide presentation. The General
Counsel objected on the ground that there were "no
allegations in the complaint about the slide presentation."
The Examiner overruled the objection and the
cross-examination continued:
Q. (By Mr. Miller) Do you recall during the slide
presentation Mr. McKeon making the statement that
the union constitution called for a 30 hour week?
A. No, sir
Q. You don't recall anything like that?
A. No, sir.
Counsel then returned to the March 5 speech but elicited
no further recollection by Brown.
Next, employee Grady E. Downs testified as follows on
direct examination by the General Counsel:
A. [McKeon] stated that the bosses would close the
plant before they would let the union come in.
He also stated the union would cut our work week to
32 hours a week.
He also stated the union would call us out on strike
and we would all have to walk the picket line without
pay.
Q. Do you recall anything else?
A. That's all I can recall.
Q. Was anything said about groceries?
A. Yes, they had a grocery display there.
Q. What was said about that?
A. He told us after we voted we could [go] back and
help ourself to the groceries.
Q. Did he tell you when the drawing would be'?
A. No. [26 ]
Q. Was anything else said about giving him another
chance?
A. Yes, he also asked everyone to give him another
chance to correct the working conditions and other
things in the plant.
On cross-examination, again over the General Counsel's
objection, Respondent inquired concerning the earlier slide
presentation. Downs recalled some discussion of the union
constitution but could not recall any statement by
McKeon to the effect that, in the words of Respondent's
counsel, "the union constitution calls for a 30 hour week."
Employee Patricia Yates summarized McKeon's March
5 speech as follows:
He first started out telling us he had only been here
a year and that he knew it was - there were problems
in the plant. He was going to try to amend them. He
said if the union came in the plant could close.
He said, I do not remember if it was 30 hours or 32,
I think it was 30. 1 can recall him saying they would
cut the working hours down to 30 hours a week.
Employee Blaylock's testimony concerning the March 5
speech was essentially the same as Patricia Yates':
A. I don't recall too much. I just know that he said
he had been there about a year. And that there was a
lot of things that needed to be seen after. And he would
like for us people to give him some time to get it
"Sometime before the election Respondent placed on display $60 worth
of groceries, with a sign indicating that this was what could be bought with
one year's union dues . On the day of the election , the groceries , with the
sign , were placed on a table in the hallway leading to the room in which
the balloting was conducted . As the employees passed by on their way to
vote , they were given slips for the raffle drawing for the groceries which
was to be held after the polls closed . The grocery matter has not been
alleged as an unfair labor practice and the Regional Director dismissed an
objection to the election based on this conduct
straightened out. And that if the union came in there
they could close the plant. He didn't say they would he
said they could close the plant.
He said if the union came in they could cut our
hours and we wouldn't make as much time as we had
been making.
Q. Do you remember that he mentioned a figure
when speaking of the hours?
A. It seemed like he said 32; 1 am not sure.
Employee Elaine Rivers added a few new thoughts:
[McKeon] asked if everyone would give him another
chance. And he said he had only been down here a little
over a year and he had several problems he had to get
under control such as sales programs. He said there
wouldn't be any more drinking on the job.
He said later on everyone would get more money.
He said if the union came in that there would be - he
said if the union came in - no, I am sorry; he said the
union that was trying to come in had in their contract
for a 32 hour workweek.
He said if he wanted to work anyone over 32 hours a
week that he would -- it would have to be cleared with
the union. And then he said he could close the plant.
* * * *
He said if the union came in that he could move the
plant. He said he could move or close the plant....
On cross-examination, Rivers repeated much of her direct
testimony, adding the fact that McKeon said that working
conditions would be improved when he had solved the
problems in the plant. Rivers recalled McKeon's calling
for a show of hands concerning the guarantee but could
not say how many hands were raised. She testified that
she had attended the slide presentation but did not recall
McKeon's having said, in the words of Respondent's
counsel, that "the union constitution called for a 30 hour
workweek."
Respondent produced two witnesses, in addition to
McKeon, concerning the speech. Employee Lee Dale
Collins testified on direct examination:
Well, [McKeon] said various things. I do not recall
just what he did say, but he did not say anything about
closing the plant down. He did not say anything about
32 hours a week.
He didn't say anything about moving the plant to
Arkansas.
Q. Tell me just what he did say.
A He said if the union came in that by law
negotiations would be necessary and the company
would negotiate with the union, but necessarily didn't
have to agree on everything they had.
He did say that....
He said he would give us a written guarantee which
he did....
He did say the best I can remember if the union
came in there would be certain adjustments that would
have to be made which would be natural. Collins
repeated that McKeon "positively" did not say he
would cut the work week to 32 hours if the Union came
in. Collins could not recall how long the speech had
lasted. He said that no questions had been asked - "It
was more or less just a speech."
Frances27 D. Witty, a designer for Respondent, testified
in some detail concerning McKeon's speech. She is more
"Since Witty is female , the Examiner hereby corrects the transcript to
have her first name changed from "Francis" to "Frances "
J. A. OLSON COMPANY
articulate and obviously better educated than the other
employee witnesses." She testified that. "It was definitely
a prepared speech which was read. I was standing very
close to him." However, she then set her distance from
McKeon as about 15 feet, said that she was standing while
he was on a raised platform with a podium, and admitted
she "can't be sure" he read the speech. She said she had
never seen a copy of the speech. She further stated that
she had not discussed the subject of her testimony with
Respondent's counsel or any representative of the
Company. In this connection, she testified:
A. I only found out this morning I was going to be
here and I came in immediately as I found out.
Q. Who sent you?
A. Mr. McKeon asked me to come.
Q. Did Mr. McKeon talk with you about the speech'?
A. No, he did not.
Q. Did anyone talk with you about the speech?
A. The only thing that was said when he called me to
his office was if I would be willing to come up and
testify, to please do so and to tell the truth as well as I
could remember it.
* * * * *
Q. (By the Trial Examiner) Had you communicated
to anybody in management or to counsel that you
recalled Mr. McKeon's speech in any detail?
A. No, I hand't as a matter of fact.
The detail of her recollection of a speech she heard almost
3 months earlier, under less than ideal circumstances, is so
unusual as itself to cast considerable doubt on Witty's
protestation that she hftd not discussed the matter before
testifying. Further, it is incredible to the Examiner that, of
some 400 people who heard the speech, Respondent
secured such detailed testimony by sheer luck when
presenting a witness without prior interview. The following
testimony by Witty on cross-examination suggests that the
testimony was not as spontaneous as she would have it
appear:
Q. Was [McKeon] cautioning on the probabilities of
a strike throughout his speech'?
A. Not the probability, the possibility.
Q. Possibility?
A. I think he used the word several times , possibility
. As well as I can reconstruct the text he pointed out
the possibility. He would say, this can happen, not it
will but it can. It is a possibility.
The text of the speech (reproduced as Appendix A to this
Decision) does not once contain the word "possibility" or
"possible." On the contrary, it contains statements such
as: ". . . the only thing the Union can do by itself is to
call you out on strike in order to save face if they can't
live up to their promises" and the only way the Union can
"do anything" is "by either calling a strike or presenting
proposals acceptable to the Company" and the "Company
will take a strike and we will take a long strike, and we
will hire strike replacements if it is necessary to do so to
maintain the integrity and the ability of this Company to
operate here in Winona."
The Examiner discredits Witty's testimony and will
disregard it as evidence of what McKeon actually said to
the employees in his speech on March 5. Witty was not
questioned about the earlier slide presentation.
"The record does not disclose whether Witty is a member of the unit or
what her status is.
447
McKeon was Respondent's last witness to testify
concerning the speech He denied having said he would"
close the plant or that there would be a 32-hour work
week if the Union won. His testimony continued-
I told them in the speech that with or without a
union it would be the right of management to reduce
working hours or to lay off if work dropped off.
* * * * *
I asked them to vote no and said if they did vote
no and the union did not get in the union would not
have an opportunity to collect dues nor would the union
have an opportunity to put up a picket line if we did
not agree in our negotiations. And they would not have
a chance to shut the plant down or try to shut it down.
Respondent's counsel then moved to the slide presentation
and again the General Counsel objected because of the
absence of any "allegation in the complaint or in the
objections concerning a slide presentation on March 4."
The Examiner overruled the objection and McKeon
testified that he had shown a clause from the Union's
constitution which, according to McKeon, states "that
their long-range aim is to have a 30 hour work week."
McKeon then testified that on March 5 he read from a
prepared text, deviating only once, to ask for a show of
hands by those employees who wanted a job guarantee by
Respondent. He thought "at least two-thirds" of the
employees raised their hands. He denied having said that
"if the Union came in [he] would close the plant down"
or "there would be a 32 hour workweek."
On cross-examination, the General Counsel asked
McKeon whether at the slide presentation he had spoken
of the Union's "long-range" aim of a 30-hour week.
McKeon first said he did not remember and then said he
"thought" he had used the word "long-range."
The General Counsel then demanded production of the
text of the speech, for which a subpoena duces tecum had
been served on McKeon about 3 weeks earlier.
Respondent's counsel produced the subpoenaed document
only after the Trial Examiner indicated an inclination to
strike all of Respondent's evidence concerning the speech
and to deny Respondent the right to present evidence in
defense against the allegation of the complaint referring
thereto because of counsel's refusal to produce. Rule
37(b), Fed. R. Civ. P. After examining the text of the
speech, the General Counsel had McKeon acknowledge
several portions, which, individually and collectively, laid
great emphasis on the potential for strikes, with attendant
hardships, if the Union came in. When neither the
General Counsel nor Respondent nor the Charging Party
offered the text of the speech in evidence, the Trial
Examiner introduced it without having read it.30
The Examiner does not credit McKeon's testimony that
he read the text of his "Twenty-four Hour Speech"
verbatim, with only one deviation. For example, there was
credited testimony by Grady Downs that McKeon at least
added some reference to the grocery display and drawing,
which does not appear in the text. On the other hand, the
testimony does show that McKeon did state much of the
substance of the text as it appears in the record. Most
importantly, however, the evidence establishes that the
"He did not expressly deny having said he "could" close the plant,
which was the statement that the employee witnesses generally attributed
to him
"Through inadvertent error, the reporter marked the text as TX Exh. 2
Actually, it is the only exhibit marked or introduced by the Examiner. It is
reproduced as Appendix A to this Decision
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees did not keep statements made by McKeon on
March 5 completely separated from those made at the
slide presentation a day or two earlier. It would have been
virtually impossible for the listeners to keep them
separated. The typewritten text of the October 5 speech
refers back to the slide presentation and Respondent's
counsel treated them as intertwined.
The allegation in the complaint does not specifically
refer to a particular speech as such, but alleges only two
specified threats made by McKeon "on or about March
5." Although in the hearing the General Counsel objected
to reference to the slide presentation, his objections were
overruled and, at the instigation of Respondent, that
matter was fully litigated. The Examiner thus believes,
and rules, that evidence concerning the slide presentation
is properly to be considered in passing on the allegations
of the complaint. On this basis, the Examiner credits the
testimony of the General Counsel 's witnesses " and finds
that in the slide presentation and the "Twenty-Four Hour
Speech," taken together, McKeon did state, in effect, that
the workweek would be reduced to 30 or 32 hours and he
could close the plant if the Union came in.
In so finding, the Examiner notes that there was no
suggestion that McKeon had given the slide presentation
from a prepared text, whereas the typewritten text of the
March 5 speech says: "I am sorry that I will be referring
to and reading from this written material in this talk to
you, but because it is the last opportunity I will have to
talk to you in a group before the election we want to be
sure to maintain a record of exactly what I have to say so
that later there can be absolutely no misunderstanding."
Despite this statement, as previously noted, Respondent at
first refused to produce the text in answer to a subpoena
duces tecum and did so only when threatened with the
application of sanctions under Rule 37(b) of the Federal
Rules of Civil Procedure.
C. Discussion and Conclusions
I General considerations
The present complaint alleges numerous specific
incidents of interference with employee rights by
supervisory personnel and coercive threats by a top
management representative during a union organizational
campaign. Most of the allegedly violative conduct was
committed by relatively low-echelon supervisors or zgents
of Respondent and many of the incidents , if insularly
viewed, might well appear to be noncoercive or
insignificant. But they must be evaluated in context; acts
are molded and colored by the background against which
they are performed. Statements by a foreman to an
employee might well be innocent incidents in a
conversational exchange between friends in one context,
but become seriously coercive when they reflect, or appear
to reflect, the views of management. For example, it
might well not violate the Act for a foreman to ask an
employee how he feels about the union if he has clearly
and consistently stated a position of neutrality. However,
where, as here, management has made clear its
"In this connection , the Examiner also notes that by leading questions
put to employee Troy Yates, Respondent's counsel intimated that McKeon
had said that the Company could propose a reduced work in negotiation
with the Union , whereas he testified only that he informed the employees
that a 30-hour week was the Union 's self-professed aim It cannot be
assumed that counsel was posing leading questions without any factual or
evidentiary basis Cf Wigmore, Evidence Secs . 780, 1808 (3d Ed ), 58 Am
Jur , Witnesses Sec 566
unequivocal opposition to the Union, a foreman's question
of an employee's feelings could not appear to be or be
accepted by employees as entirely casual or innocuous.
The Supreme Court has recently definitively set forth
the risks an employer assumes when he engages in
"brinkmanship." N.L.R.B. v. Gissel Packing Co
[Sinclair CompanyJ, 395 U.S. 575, 620, citing Wassau
Steel Corp v N L R B. 377 F.2d 369, 372 (C.A. 7).
When an employer plays this dangerous game, he must
assume the burden of seeing that none of his subordinate
supervisors overstep of bounds of permissible activity. See
Bush Hog, Inc., 161 NLRB 1575, 1581, enfd. 405 F.2d
755 (C.A. 5), a case which bears considerable factual
similarity to the present.
The evidence here establishes that during the campaign
several supervisors' meetings were held at which the
Union was discussed. Indeed, apparently without
precedent, around the middle of January the supervisors
were called to the plant on a Saturday for a meeting
devoted to discussion of the union campaign. Although
between half an hour and hour was devoted to the Union
at three or four meetings, there is very little specific
evidence as to what was said, except that McKeon
reportedly told the supervisors not to "threaten, question
or promise" the employees. McKeon conceded that he
asked the supervisors to keep him posted as to anything
they might learn about the Union's campaign. There is no
satisfactory evidence that any precautions were taken
against the supervisors' overzealously attempting to satisfy
McKeon's curiosity. Indeed, it is undisputed that almost
immediately after the first supervisors' meeting at which
the Union was discussed Sanders spoke about the Union
with each of the approximately 30 employees in her
department In the absence of clear evidence, one can
hardly assume that she kept her statements on the sunny
side of the shadowy line which even sophisticated labor
law experts cannot define with confidence or assurance.
Except for the alleged threats by McKeon, the
complaint alleges, and the evidence establishes, incidents
involving only a relatively small percentage of the
approximately 400 members of the bargaining unit. But
this fact does not negate the coercive nature and impact of
the conduct, since , as the Board has often recognized, it is
a fair assumption that news spreads widely. Staver's
Johnsonville Meats, Inc., 174 NLRB No. 94, fn. 3.
Further, the record clearly establishes that
Respondent's opposition to the Union was forcefully
communicated to the employees in a considerable volume
of written and printed material. In addition, McKeon's
slide presentation and speech on March 5 were given to all
the employees. They epitomize Respondent's overall
attitude, which forms the background against which
individual statements must be appraised.
In the March 5 speech, as it appears in the typewritten
text, McKeon repeatedly emphasized that the Company
would continue to run the plant; that the Union could not
secure anything that the Company was unwilling to give;
that any "cure" the Union might effectuate could well be
worse than the "disease"; that the Company was prepared
to "take a long strike"; that if a strike was necessary to
secure an increase , it "might take (the employees] years to
get back what the Union had cost [them] during the
strike;" that "a lot of people could wind up making less
money in the long run" if the Union enforced
"unreasonable" demands. And McKeon prophesized that
,the "in-plant pushers" would "be the last ones working
J. A. OLSON COMPANY 449
here in the plant alter everyone else is out on the street."32
Thus, the speech at least suggested that unionization
might be, at best, futile, and, at worse, detrimental, if not
catastrophic.J1 With such an attitude manifested on the
part of the Company, employees would naturally take
very seriously, and perhaps even overact to, individual
statements by supervisors. As the Supreme Court
recognized in Gissel, supra, employer statements must be
assessed "in the context of its labor relations setting" and
employees, because of their economic dependence on the
employer may "pick up intended implications of the latter
that might be more readily dismissed by a more
disinterested ear." II' it did nothing else, McKeon's speech
certainly emphasized the employees' economic dependence
on the Company."
The specific allegations of the complaint will now be
considered in the light of the foregoing considerations.
2 Specific allegations
a Threats
(I) Plant closure . The complaint alleges that foreman
Allread and McCorkle, leadman Jordan and President
McKeon all threatened plant closure in the event of a
union victory. The evidence summarized above does
establish that Jordan said the plant would be closed if the
Union won . However, the evidence shows generally that
the other named supervisory personnel said only that
Respondent "could " close the plant if the Union came in
Respondent apparently maintains that any reference by
McKeon or other supervisors to a potential plant closure
amounted only to a permissible "prediction" of the
possible economic consequences of excessive demands by
the Union . This apparently was the position stated by Mr.
Bowling, Respondent ' s counsel , to a group of employees
on the morning of the election." But the statements
attributed to supervisory personnel were not couched in
terms of economic predictions based upon foreseeable
facts; according to the testimony , they were flat
statements " that the Respondent would possibly go out of
business if the Union were to be successful in their
campaign ." Snyder Tank Corp., 177 NLRB No. 94,
TXD. Emerson Electric Co.. 177 NLRB No. 4, TXD, and
cases there cited . Clearly they did not meet the standards
"At the same time McKeon was giving each employee a very formal
appearing "PERSONAL GUARANTEE" and "LEGAL CONTRACT"
that the employee "will have a job with our Company whether the Union
gets into our plant or not, . . . as long as you perform your work
satisfactorily and we are economically able to operate this business
successfully and work is available."
"The overall message appears very similar to that condemned in Boaz
Spinning Co., 177 NLRB No . 103, a representation case However, the
Examiner refrains from finding such a violation because the complaint
contains no such allegation . After the text of the speech was finally
produced at the hearing , the General Counsel did not move to amend the
complaint . Cf. Grafton Boat Co , 173 NLRB No 150
"E.g.. ". . . There is a reason the Union will not put anything in writing
to you, it is because you can't promise to do something when you don't
have the power to make that promise come true You can't promise to give
away something that's not yours to give in spite of the Union's efforts
to keep your Company from giving you a guarantee of a job and a
paycheck, and in spite of the Union 's efforts to keep you from having the
same type of guarantee of job security that other employees across the
country have enjoyed, we are not going to deny you of this advantage and
this guarantee simply because the Union has tried to keep us from giving it
to you because they are unwilling and afraid to give it to you themselves
You will have my guarantee of a job and a paycheck at Olson and your
guarantee will be backed up by your Company."
"Employee Patricia Yates testified as follows concerning Bowling's
for permissible free speech delineated as follows in Gissel,
supra, 395 U.S 575, 618.
. [An employer] may even make a prediction as to
the precise effects he believes unionization will have on
his company. In such a case, however, the prediction
must be carefully phrased on the basis cf objective fact
to convey an employer's belief as to demonstrably
probable consequences beyond his control or to convey
a management decision already arrived at to close the
plant in case of unionization. . If there is any
implication that an employer may or may not take
action solely on his own initiative for reasons unrelated
to economic necessities and known only to him, the
statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without the
protection of the First Amendment. . . "[c]onveyance
of the employer's belief, even though sincere, that
unionization will or may result in the closing of the
plant is not a statement of fact unless, which is most
improbable, the eventuality of closing is capable of
proof." 397 F.2d 157, 160.. .
The Examiner thus finds that, as alleged, Respondent,
through Allread, McCorkle, Jordan and McKeon, violated
Section 8(a)(l) by threatening plant closure if the Union
won.
(2) More arduous working conditions The complaint
alleges that foremen Allread, McCorkle, Sanders and
Johnson threatened less favorable working conditions in
the event of a union victory It has hitherto been found
that Allread told Peeler that if the Union won, the
employees would be deprived of their present privilege of
washing up twice a day on company time. . . Buss
Machine Works, Inc, 170 NLRB No 109, TXD.
McCorkle told employee Palmertree that, if the Union
won, employees would be required to make up for errors
on their own time and would be subject to summary
dismissal for three errors Sanders warned Patricia Yates
that if the plant were unionized employees would be laid
off rather than transferred when their particular work
became slack. That the foreman sought to place the onus
for such untoward results on "union rules"" does not save
the statement under the Gissel formulation of free-speech
principles. Certainly the foremen could not confidently
predict that the Union would demand a deterioration of
working conditions or that the employer would be
compelled to accede to any such demands.37 The Examiner
finds that the allegations concerning McCorkle, Allread
and Sanders have been sustained General Stencils, Inc .
178 NLRB No. 18, fn 2.
statements " I asked him if the plant could close down or if it could be
moved He said, yes , it could be not 20 miles away but a radius of 75
miles they couldn ' t move to another state " Employee Mary Beach, a
witness for Respondent , testified that when Yates asked if it was true that
the plant was going to be moved to Arkansas , Bowling replied that "the
company wouldn ' t move and couldn't move only under economical
conditions He said they could be forced to move but that they couldn't
move down the road to get away from the Union " When asked what
Bowling meant by "economical conditions ," Beach replied " I guess he
meant financial reasons I wonder what else" Bowling did not testify
Bowling's statements are not alleged as violative of the Act and the
Examiner makes no finding with respect thereto
"McKeon at least impliedly made similar threats in his speech of March
5, as it appears in the typewritten text He there rhetorically asked "Does
anybody in this room honestly feel so strongly against me and this
Company that they would like to try and force their fellow employees to
follow strict Union rules like we have seen down at Laurel, Mississippi9"
The complaint , however, contains no corresponding allegation
"in his March 5 speech McKeon repeatedly pointed out that the
Company did have to accede to any union demands
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence fails to establish any threats of more
arduous working conditions made by Johnson
Accordingly, such allegation in the complaint is dismissed.
(3) Reprisals. Johnson unlawfully threatened Blaylock
when he advised her to be more discrete about expressing
her pro-Union sympathies because he would hate to see
her lose her job. In its brief, Respondent argues that
"Johnson was giving Blaylock friendly advice and
obviously not threatening her." It does not appear why
such "friendly advice" was in order unless Blaylock's
vocal support of the Union was, at least in foreman
Johnson's view, placing her in some jeopardy
The Examiner has also heretofore credited the
testimony of employee Troy Yates that Johnson said that
after the election "the company was going to get ahold of
names of the people that signed cards and it was going to
be rough on them." This constituted a threat of reprisals.
And foreman Sanders clearly violated Section 8(a)(l)
when she warned that employee Campbell would be fired
if got " tangled up" in the Union.
At the hearing the complaint was amended to allege
that on or about May 15, 1969, McCorkle "threatened an
employee by stating that the employee could be sued and
could have her child taken away for giving a statement to
an agent of the Board." The Examiner finds that whatever
McCorkle said to employee Palmertree along these lines
was said purely in jest. When McCorkle saw that
Palmertree was distressed, McCorkle immediately gave
assurance that she was simply joking. Additionally, at
McKeon' s request , McCorkle promptly apologized." On
all the evidence, the Examiner finds that the General
Counsel has failed to establish that McCorkle threatened
Palmertree on or about May 15 in contravention of
Section 8(a)(l). Accordingly, it will be recommended that
this allegation of the complaint be dismissed.
(4) Detriment to older and handicapped employees. The
evidence previously summarized establishes that Allread,
McCorkle, Jordan and Burst" all indicated that
unionization would result in discharge of or other
detriment to older and/or handicapped workers. The
threatening nature of the statements was not obviated by
attributing such untoward results, as Jordan did, to
"union rules ." See Gissel. as quoted above.
(5) Reduced hours. Several employee witnesses testified
that McKeon stated that if the Union won hours would be
cut to 30 to 32, with McKeon being uable to provide more
work without clearance from the Union. Respondent
maintains , in effect, that such statements were based
solely on the Union's Constitution. However, McKeon
was not even sure that he had advised the employees that
the Union' s constitution speaks of a 30 hour week only as
a "long- range" aim. There can be no question that the
employees understood, as McKeon manifestly wanted
them to understand , that a union victory would result
immediately in a reduction in the work week. Such
"prediction" was either a misrepresentation of the
provision of the Union Constitution or a direct threat of
action to be taken by Respondent." Crustal Tire Co.. 165
"The record also indicates that several employees disliked McCorkle as
a supervisor apparently for reasons not associated with union
considerations.
"As to Burst, the evidence was simply that he expressed "concern" for
the welfare of the older employees . Respondent argues " It is extremely
difficult to understand how someone' s expression of concern for people
could be construed as a threat that they will be fired." A supervisor's
expressed concern for a group of employees in the event of a union victory
manifestly implies that the group may be adversely affected as a result of
such victory
NLRB No. 82, enfd. 410 F.2d 916 (C.A 8).
The Examiner finds that McKeon did, as alleged,
threaten the employees with a reduced work week in the
event of a union victory Under the principles previously
discussed, the statements were not saved by being made
ostensibly as a "prediction" of union requirements. 01
(6) Racial integration. As previously stated, there was
uncontradicted evidence that Jordan told Seals that a
union victory would result in the hiring of more Negroes
and enforced association of the races. It has been
definitively held that such statements can amount to
threats in contravention of Section 8(a)(l). N L R B. v.
Bush Hog, Inc., .supra, 405 F.2d at 757, fn. 2:
. . the company plainly implied that it could
preserve plant segregation while a union victory would
result in a requirement that Negroes be hired. Such
"speech" is unprivileged under Section 8(c) and
amounts to a promise of what was considered a benefit.
Thus, the appeals to racial prejudice clearly violated
Section 8(a)(I).
To be sure , there are possibly significant distinctions
between the present case and Bush Hog, Inc In Bush
Hog. "[t]here was considerable evidence in the record to
indicate that the all-white management, foremen, and
employees were virtually unanimous in their anti-Negro
sentiments and in their opposition to any form of
integration." In the present case, on the other hand,
Respondent currently employs both Negro and white
workers. Further, and perhaps most noteworthy, Seals and
Logan, to whom Jordan's statements were made, are both
Negro. Respondent argues:
It is inconceivable how the General Counsel can
consider a statement made to a Negro that the Union
would require the white people and Negroes to work
side by side could be considered a threat in view of the
current developments in this country.
While there was no direct testimony that the Negro
employees desire to maintain the status quo,'r Jordan had
known these two employees for a considerable period of
time Since Jordan was opposed to the Union, it is
inconceivable that he would have advised Seals to "vote
no, and it will be just like we are" unless Jordan thought
the Negro employees preferred the segregated status quo.
The Examiner finds that Jordan's statement amounted to
an unlawful threat that a union victory would be followed
by an undesirable change in working conditions and a
"Additionally , as previously indicated , in leading questions put to a
witness for the General Counsel, Respondent ' s counsel indicated that
McKeon had suggested that the Company might propose a reduced work
week in its contract negotiations This suggestion is borne out in the text of
the March 5 speech , which reads in part " in spite of what the Union
would have you believe , Union or no Union , this Company and any
Company has the right to layoff and to reduce working hours when work
drops off
"There was evidence that foreman McCorkle told employee Palmertree
that all the Union was "guaranteeing " was 25 hours of work per week and
said to employees Downs and Crowder that "if the Union went in [the
lemployees ] will get more money but less hours ." Since the complaint does'
not allege threats of reduced hours made by McCorkle, the Examiner
makes no finding concerning this evidence.
"For the purpose of impeaching Seals on another matter, Respondent
introduced into evidence Seals' pretrial affidavit . In that affidavit, referring
to an earlier incident , concerning which he did not testify at the hearing,
Seals impliedly indicated his preference for the existing segregation as
follows : "The first thing [Jordan ] said was that the Union would bring in
the Civil Rights Act , and make us all like one. I said what do you mean,
there ain't nothing to this because the Union ain't said anything about
J. A. OLSON COMPANY
corresponding "promise of what was considered a
benefit " Bush Hog, Inc., supra, 405 F.2d at 757, In. 2.°J
b. Interrogations and surveillance
The complaint alleges that Burst "solicited an employee
to report to Respondent concerning its employees' union
activities." This allegation was supported by employee
Green's credited testimony that Burst, in the course of a
conversation devoted to the Union, "said if I found out
anything to keep him posted." Green testified, without
objection, that he was asked by Burst how he felt about
the Union, if he had signed a Union card and if employee
Bobby Gass was "in on it." When Green replied that he
did not know about Gass, Burst replied: "I think he is."
This credited testimony establishes improper interrogation
and creation of the impression of surveillance
As amended on April Il, the complaint alleges that
Jordan "interrogated an employee concerning
[Respondent's] employees' union activities" and "solicited
an employee to report to Respondent concerning its
employees' union activities." The testimony of Seals set
forth above, corroborated in substantial part by Radliff,
supports these allegations. The conduct alleged and shown
is clearly violative of the Act. General Automation Mfg.,
Inc., 167 NLRB No. 66; Svlgab Steel & Wire Corp, 167
NLRB 303, 328.
The complaint also alleges that Johnson "[c]reated the
impression of surveillance of [Respondent's] employees'
union activities by asking an employee where the
employee had been the previous evening , which was the
date of a union meeting." The evidence in support of this
allegation was simply that Johnson, having tried
unsuccessfully to reach employee Blaylock by telephone
one evening, asked her the next morning where she had
been. In answer to that question, Blaylock disclosed that
she had been at a union meeting . So far as the record
shows, Johnson had telephoned Blaylock purely socially.
The General Counsel has failed to adduce any evidence
which would warrant a finding that Johnson was
motivated by a desire to learn anything about the Union
or that Blaylock would reasonably conclude that he was
checking up on union activities. The Examiner will,
therefore, recommend that this allegation of the complaint
be dismissed.
Evidence summarized above also establishes, as alleged
in the complaint, that McCorkle "created the impression
of surveillance of its employees' union activities by telling
[employee Palmertree] that she knew who supported the
Union." Palmertree's testimony also establishes that
McCorkle questioned her about the union sympathies and
activities of Palmertree and of other employees and
requested Palmertree to find out what she could about
other employees' union activities and report back to
McCorkle and to secure a union card and give it to
McCorkle. Employee Ware also testified that McCorkle
had asked her if she had signed a union card and
discussed the Union with other employees. And McCorkle
admitted having asked one employee what foremen's
names had been mentioned at a union meeting.
The evidence summarized above establishes that around
the middle of January, Allread and Sanders questioned
employees concerning union activities and sympathies, as
alleged in the complaint.
mixing the people . He said well you'll see."
"The Negroes ' preference for segregation , to which Jordan appealed,
may well evidence the pernicious "docility" engendered by racial
discrimination which Judge Wright discusses in United Packinghouse Etc
Workers v . N.L.R B., 416 F.2d 1126 (C.A.D.C.)
451
The amended complaint also alleges that supervisor
George Parker interrogated employees on February 27
concerning their union activities, membership and
sympathies. As previously indicated, the Examiner finds
that this allegation was not supported
c. Promise of benefits
The complaint alleges that supervisor Sanders promised
an employee a wage increase as an inducement to vote
against the Union The General Counsel does not refer to
this allegation in his brief . The only evidence which might
be said possibly to support the allegation is employee
Campbell ' s statement that Sanders "said Mr. McKeon
said when the plant started making more money we are
all going to get a raise ." There was no suggestion that any
raise might be dependent upon the outcome of the election
or on Campbell ' s vote According to the text of his
speech, on October 5 McKeon had made it clear that
improved profits would mean increased wages irrespective
of the outcome of the election . The Examiner thus finds
that the General Counsel has failed to establish any
violative promises made to induce antiunion votes
III. OBJECTIONS TO ELECTION
As previously stated, eight specific objections to the
election were referred to the Examiner for hearing. All
these objections" refer to conduct also alleged as unfair
labor practices and discussed above.
The only conduct occuring after January 20, 1969,
when the petition was filed, which has been found to have
interfered with the employees' rights, is that by Jordan
and McKeon. Such unfair labor practices a fortiori
require setting the election aside: They specifically sustain
the allegations contained in Objections II, A, F, H, and J,
which the Examiner will recommend be sustained. Since
the remaining objections have not been supported by
evidence of facts occurring after January 20, 1969, it will
be recommended that they be overruled.
CONCLUSIONS OF LAW
1. Respondent , J. A. Olson Company, Division of
N.M.S. Industries , Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union , Southern Council of Lumber and
Plywood Workers , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO , is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent interfered with , restrained , and coerced
its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and thereby committed unfair labor
practices affecting commerce within the meaning of
Section 8 (a)(l) of the Act by: interrogating employees
concerning their union sympathies and activities;
threatening plant closure , reduction in hours, less
favorable working conditions (including racial integration),
discharge or other detriment to older and /or handicapped
"With one possible exception , namely , Objection 11, E, which states that
Respondent "Threaten[ed] employees with moving the plant to avoid
dealing with the Union should the Union win the election " The Charging
Party did not independently introduce any evidence The General Counsel's
evidence suggests that Respondent 's counsel may have made such a veiled
threat the morning of the election. See In 35, supra However, because
other objections are sustained , the Examiner deems it unnecessary to pass
an Objection 11, E specifically
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers, and more frequent layoffs in slack periods if the
Union were elected bargaining agent, threatening
discharge of or other reprisals to union adherents if the
Union were defeated in the election; soliciting employees
to report on union activities of themselves and other
employees; and creating the impression that the
employees' union activities were being kept under
surveillance.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. It has not been established that Respondent
committed unfair labor practices other than those
specifically found herein.
6 Objections 11, A, F, H, and J, filed by the Union to
the conduct of the election have been supported by
evidence that between the filing of the representation
petition on January 20 and the election on March 6, 1969,
Respondent (a) threatened the employees that if the Union
won the election the work week would be reduced to 30
hours, older and handicapped workers would be
discharged and more Negro employees would be hired,
with resultant racial integration, and (b) requested an
employee to attend a union meeting and report back to an
agent of Respondent.
7. Objections 11, C, D, E, and [ to the conduct of the
election have not been sustained by substantial evidence of
misconduct affecting the election committed between
January 20 and March 6, 1969.
THE REMEDY
Having found that Respondent interfered with the
rights of its employees under Section 7 of the Act, the
Examiner will recommend the customary cease-and-desist
and notice-posting remedies. While several separate unfair
labor practices have been found, many of them were
relatively minor and resulted more from carelessness and
an excess of zeal on the part of lower-echelon supervisors
than on a determination by Respondent to defeat the
Union by fair means or foul. In the Examiner's opinion,
the record as a whole does not establish a deep-rooted
proclivity on the part of Respondent to violate the Act.
Accordingly , it is not recommended that a broad
cease-and-desist order be issued.
It will also be recommended that the election of March
6, 1969, be set aside and the representation proceeding be
severed and remanded to the Regional Director for
appropriate action.
RECOMMENDED ORDER
Upon the entire record, and pursuant to Section 10(c)
of the Act, the Trial Examiner recommends that
Respondent, J. A. Olson Company, Division of N.M.S.
Industries , Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from unlawfully questioning
employees; threatening them with reprisals , maintaining or
creating the impression of maintaining surveillance over
their union activities; advising them that employment
policies with respect to race may depend on whether or
not they designate the Union; or in any like or related
manner interfering with, restraining, or coercing them in
the exercise of the right to self-organization , to form labor
organizations , to join or assist Southern Council of
Lumber and Plywood Workers, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act, or to refrain from any
or all such activities.
2. Take the following affirmative action in order to
effectuate the policies of the Act.
(a) Post at its Winona, Mississippi, plant copies of the
attached notice marked "Appendix B"06 Copies of said
notice, on forms provided by the Regional Director for
Region 26, shall, after being duly signed by the Company,
be posted by the Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to assure
that the posted notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director in writing, within 20
days from the receipt of this Decision, what steps the
Company has taken to comply herewith.-
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein
IT IS ALSO FURTHER RECOMMENDED that the election of
March 6, 1969, be set aside and that Case 26-RC-3375 be
severed and remanded to the Regional Director for further
appropriate action.
"In the event that this Recommended Order be adopted by the Board,
the words "A Decision and Order" shall be substituted for the words "The
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board 's Order be enforced by a decree of a United States
Court of Appeals, the words "A Decree of the United States Court of
Appeals Enforcing an Order" shall 6e substituted for the words "A
Decision and Order "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX A
TWENTY-FOUR HOUR SPEECH
I would appreciate it very much if everyone would give
me your close attention, because what I have to say is
certainly a very serious matter that could very well affect
the future of everybody in this room.
I am sorry that I will be referring to and reading from
this written material in this talk to you, but because it is
the last opportunity I will have 'to talk to you in a group
before the election we want to be sure to maintain a
record of exactly what I have to say so that later there
can be absolutely no misunderstanding.
In speaking of these legal matters, I want to clear up
one thing from the very start. The Olson Company is in
the business of making picture frames and we are not in
the business of collecting dues. The Union has a large
staff of attorneys who live in Miami and Florida working
for them, and yet they seem to object to the Company
hiring a very competent attorney to advise us on what we
can legally do and cannot do. They know we are not in
the business of strikes, picket-line violence and collecting
dues and union fines; they know that this is a strange
business for us and yet they would like to try to trap your
Company and deny your Company of the right of having
an attorney to advise us. This is like trying to throw some
J. A. OLSON COMPANY
of you in jail without giving you the right to defend
yourself. And incidentially, this Union has a very good
reason for not liking our particular attorney whom many
of you may have met already, and that's because our one
attorney has beaten their fifty attorneys in just about
every case that has ever come up, and our attorney has
exposed this Carpenter's Union as just exactly what it is
in many cases. For instance, the Carpenters' Union
President, William Hutcheson, paid out almost a quarter
of a million dollars of Carpenter's Union members dues
for a book to be written about himself, of all people, and
the funny thing about it is hardly anybody ever saw this
book.
Mr. William Hutcheson, the Carpenter's Union
President, when called before the Senate investigating
committee and demanded to testify about what he had
done with the Carpenter's Union members dues, refused
to answer any questions and was cited by Senator
McClellan for contempt for refusing to disclose what the
Carpenter's Union bosses had done with their members'
dues. This is just one example of many examples of
dealings in the Carpenter's Union and it is no wonder they
are trying to put up a smoke screen by making a big fuss
about the Company having an attorney, when they know
full well they have spent literally thousands of dollars in
the past few years in Court. And these are the very people
who tried to sell you on how religious they were. But let's
get away from some of the activities of the Carpenter's
Union bosses where they received almost $80,000 for
some property they bought in Florida with Carpenter
members' dues and let's also get away from the Yonkers
Race Track where the Carpenter's Union paid almost a
half a million dollars, actually it was $450,000 to a man
by the name of Johnson, who was vice-president of the
Carpenter's International, for being their "labor
consultant." I think these Carpenter Union bosses here in
Winona have a lot of gall saying anything about your
Company hiring an attorney to try to advise us on the
best way to operate this business and the best way to
continue operations.
But let's get down to the situation here in Winona and
things that will effect you immediately. First of all, I want
everybody to understand one thing clearly and that is
whether you have ever signed a Union card or not, no one
in this room is obligated in any way to the Union, and
anybody can vote against this Union even if at one time
or another you may have signed a Union card.
When you go into the election area you will be handed
a ballot and on the bottom of the ballot will be two boxes.
On the left-hand side will be the box that says "Yes" that
you are for the Union and on the right -hand side of the
ballot will be a box that says "No" that you are opposed
to this Union in this plant . Employees who desire to give
this Company a chance to move ahead will want to put an
"X" in the lower right-hand square of the box that says
"No." In this way the Union will not be able to collect
fines out of your paycheck, and in this way the
Carpenter's Union will not be able to put up a picket line
and try to shut it down or prevent you from coming in to
work. No one in the Carpenter's Union will ever know
how you voted so if you want to protect what you have
and protect the future of this Company we strongly ask
you to consider putting your "X" in the "No" box.
Another thing that might have confused some
employees is the Union sales pitch that you should vote
for the Union to see what it can do because as Mississippi
is a "right to work" State, you wouldn't have to join or
pay dues until you wanted to. In other words , they say
453
give the Union a chance and they won't start taking
money from you until they can show you what they are
going to do. What the Union pushers who have used this
trick haven't told you is that if there was a picket line
around this plant or a strike - everyone would be
involved and kept from working whether you were in the
Union or not because labor trouble affects everyone -
just like everyone would be affected if this plant were to
be destroyed by a foreign bomb or shut down by fire.
We have certainly admitted during this campaign that
this Company has problems and that we should give
attention to making improvements in many areas.
Unfortunately, when I first came here the Company was
in such a position that unless we were able to pull
ourselves up by our boot straps it was very doubtful that
we would be in operation today. The first thing I was
concerned with was trying to save the jobs of everybody
here in this plant and to try to save this Company here in
Winona from years of loose management. I think we are
about at the point where I can say we have accomplished
this. We have accomplished this together. The first thing
we had to do when I came here was to help the people
who were already here to be sure this Company could stay
in business and start making a reasonable amount of
money It is only by making these improvements in our
efficiency that the Company will be able to afford to do
anything in the future.
I know the Union has told you that they could get you
more money, but what they haven't told you is that they
cannot get blood out of a turnip. We have shown you in
the slide presentation the law that says that no Company
has to agree to anything the Union might want to do or
ask in order to collect dues from its members.
Have you ever stopped to consider that Unions often
create more problems than they ever solve. The
Carpenter's Union cannot show you a single contract
where the Union runs the plant. The Union is not going to
fire anyone, employees or supervisors, and you can count
on that. The Union is not going to make any rules by
itself to tell us how to run this plant - the only thing,
and I repeat, the only thing the Union can do by itself is
to call you out on strike in order to save face if they can't
live up to their promises. Now that we are about to get
over our financial crisis here, I know that all of us would
much rather work out our problems together without loss
of personal freedoms to union rules, and I hope you feel
that way, too. Does anybody in this room honestly feel so
strongly against me and this Company that they would
like to try and force their fellow employees to follow strict
Union rules like we have seen down at Laurel,
Mississippi . Certainly, if there's anybody in the room who
feels that way, they should have come to us long ago and
talked it out face to face. People sometimes think that the
Union is a magic pill that's going to cure everything but is
often like someone taking a penicillin shot for a cold. The
cold may not harm them but the reaction to the penicillin
might be stronger than they expected.
Now sometimes when people vote a Union in they
mistakenly think that the Union is bound to mean higher
wages and more benefits to everybody. Nothing could be
further from the truth. While your Company would have a
legal obligation to bargain with the Union what often
happens in negotiations depends on what your Company is
Able to give and perhaps whether or not some of you
might be willing to go out on a strike . In other words, the
economic strength of the parties. Of course, if there were
an economic strike we would have a perfect right to hire
strike replacements so the Union could end up by causing
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you to be replaced on your job. We certainly hope nothing
like that would ever happen here as we have always had,
more or less, a family type pleasant situation here and
many of you who have worked for this Company for a
long time know perhaps more than I that none of us want
any disagreeable things to happen here. Anything the
Union might tell you they would get for you on one side
the Company would have a perfect right to look at the
situation and see where we could cut costs on the other, if
it cut into our operational costs.
A Union can mean different things to different people.
To some it might mean more money and to others no
layoffs. But no Union can furnish or guarantee job orders
or guarantee employment. In spite of what the Union
would have you believe, Union or no Union, this
Company and any Company has the right to lay off and
to reduce working hours when work drops off and to seek
ways to improve plant efficiency. And don't forget, out of
any raise the Union might get 2 cents or 3 cents of that
raise which would go for Union dues And then, too, if
you had to strike to get this an increase might take you
yearsjust to get back what the Union had cost you during
the strike.
Quite frankly, if the Union got into the plant, there
would be some changes made or else there wouldn't have
been any reason for voting for the Union in the first
place. I'm not saying that to you to sound tough or
anything like that because that's not my nature, but I'm
saying that if the Union gets into this plant through
necessity there are going to be some changes made. Under
a Union Contract the Union has to represent everyone
whether you wanted them to or not even if you voted
No-so the Union would have some voice in your job even
if you didn't want them to. And it's no sure thing you
would like some of the changes or whether you would
approve of any of the changes that the Union would want
to be made. By law, we would have to negotiate with the
Union but by law we don't have to agree to everything
and by law we have a perfect right to make counter
proposals to increase plant efficiency and do anything
possible to reduce the costs and time it requires in dealing
and arguing with this Union. So, in the long run , you can
see that if the Company is forced to tighten up its
operation whenever work begins to get the least bit slack
and send people home early to save costs, then a lot of
people could wind up making less money in the long run
after a Union gets in the plant if unreasonable Union
demands put your Company in this position.
The Union organizers have been in town for quite some
time now . During that time have they ever given anyone
a written guarantee that they would or could do anything
for anybody except collect dues? The Union won't give
you a guarantee of anything . And yet they expect you to
put your jobs and your paychecks in their hands if they
should call a strike . There is a reason the Union will not
put anything in writing to you, it is because you can't
promise to do something when you don ' t have the power
to make that promise come true. You can ' t promise to
give away something that 's not yours to give . In spite of
anything you have heard from any of the Union pushers
of what they say they will do, has any of them shown you
the courtesy of telling you exactly how they plan to do
anything. How? Have they told you how? The only true
answer could be by either calling a strike or presenting
proposals acceptable to the Company. And that's the
danger to you and that ' s the danger to this Company and
that 's the danger to all of us, and that ' s why we are
opposed to this Union and why we are fighting it so hard.
A strike does not help anyone, employees lose jobs and
paychecks and the Company loses customers which only
hurts the employees jobs in the long run. Loss of
customers means loss of business and loss of business
means loss of jobs. And remember unless Union
proposals were such that the Company could operate
successfully and we could agree to we would have a right
to disagree No! The Union people are afraid to tell you
how they are going to bring all their magic promises
about. Believe me, this Company is not going to roll over
and play dead to the Carpenter's Union or any other
Union We are going to try to keep this plant in
operation and if it takes a long, hard battle or strike to
maintain our ability to operate successfully here in
Winona that's exactly what it's going to be. This plant
will operate to the best of our ability Union or no
Union. If the Union demands are unreasonable in order
to save face for their big promises they will find out that
we have no intention of jeopardizing Olson's chances of
staying in business here in Winona. If anybody in this
room thinks that your Company is afraid of talking a
strike they have another thought coming. I want to make
that absolutely clear. Your Company will take a strike
and we will take a long strike, and we will hire strike
replacements if it is necessary to do so to maintain the
integrity and the ability of this Company to operate here
in Winona. I hope it never happens here and there's no
need for it to ever happen, but we know what this
Company can do better than any outside Union. We know
what it takes to make this Company successful here in
Winona and before we will jeopardize any of this, this
Carpenter's Union will find out and perhaps a few other
people, that your Company is not going to roll over and
play dead just to satisfy the ego of some Union organizers
and some of the in -plant pushers who expect to get a raise
out of this whole thing by playing one plant and one
employee against the other. We know what these in-plant
pushers want because we have seen it happen in other
cases. They are the ones who end up being the shop
stewards, they're the ones who will have super-seniority
and will be the last ones working here in the plant after
everyone else is out on the street.
The Union is scared to death that the Company is
going to give you a guarantee of a job and of a paycheck.
The Union knows they cannot give you any guarantee
whatsoever because you could sue them for breach of
promise or breach of contract. The Union has tried to
warn you about the Company giving you a guarantee but
at one other plant where I was plant manager I gave
employees a guarantee that has stood up and every
employee has enjoyed a job security that was guaranteed
to them under the guarantee that I gave them. Why hasn't
the Union given you some written assurance that they will
deliver on their promises and will guarantee you that they
will not cost you any money by calling you out on strike.
If they are so interested in you why won't they get all of
these wonderful things for you without charging you dues
for them? How much money do you think the Union
organizers have been spending here in town? Certainly,
after all the money they have already spent why wouldn't
they show you the courtesy and respect to put their
promises in writing so that you could sue them if they
failed to deliver and you could sue the Union if the Union
caused you to lose your job or to lose your paycheck in a
long strike . No, the Union is afraid to give you a
guarantee because they know you will hold them
accountable in court for their failure to deliver. No, in
spite of the Union's efforts to keep your Company from
J. A. OLSON COMPANY
giving you a guarantee of a job and a paycheck, and in
spite of the Union ' s efforts to keep you from having the
same type of guarantee of job security that other
employees across the country have enjoyed , we are not
going to deny you of this advantage and this guarantee
simply because the Union has tried to keep us from giving
it to you because they are unwilling and afraid to give it
to you themselves . You will have my guarantee of a job
and a paycheck here at Olson and your guarantee will be
backed up by your Company.
That' s about all I really have to say , I felt I had a real
obligation to let you know exactly how I feel and how
your Company feels . If I sincerely believed that this
Carpenter ' s Union has your interest at heart or would
help this Company in any way whatsoever and that a
majority of our employees would profit from it , I would
let you right now go ahead and vote for this Union and let
it get in , but I know that this Union is trying to play this
plant against other plants.
Let me make this suggestion to you if I may. Almost a
year ago this Union was voted into the Hamilton
Manufacturing plant over in Kosciusko , Mississippi.
Employees over there thought that they would
automatically get a big wage increase but six or seven
months have now gone by and absolutely nothing has
happened . Even if the Union gets in the plant it must
negotiate a contract - - now go ask some of the employees
at Hamilton Manufacturing Company over in Kosciusko
about how their negotiations with the Union are getting
along - how long have they been going on and ask them
exactly what the Union has accomplished . If the example
of Hamilton Manufacturing Company holds true don't
you think we can spend the next year better by working
together . I need your confidence for the next year. And I
can assure you that if we have not justified your
confidence in a year then I am not the plant manager I
should be . It just takes time for me to get to know and
understand all of our problems and I haven't been with
you that long . If I have failed in my obligation to run this
Company vote the Union in next year but I feel that you
will agree with me that progress in all areas takes time
without union interference . Look at what happened down
at the Masonite Corporation in Laurel. Hundreds of
employees down at Masonite lost their jobs because of the
Union and many of you had a chance to read the letter
the Union president wrote to their members in which he
told them he was sorry that the Union caused so much
trouble , but there was absolutely nothing that he could do
about it . Don't let the same thing that happened to the
people at Masonite happen to our employees here at
Olson without searching your conscience to see if you
have given me a chance.
I want to thank each one of you very much for your
attention . I feel that these are things that had to be said
and I feel that these were things that must be said because
I sincerely feel that once good , honest intelligent people
such as our employees here at Olson know all the facts
and know the truth of the situation, they will make the
right decision . I hope you will make the right decision and
vote "NO UNION" next Thursday, because I know in
that way you will be expressing your confidence in me and
this Company to move ahead as I know that we can do
but only by our working together without Union
interference.
Thank you very much.
455
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which all parties had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the law
and has ordered us to post this notice and to keep our
word about what we say in this notice.
WE WILL NOT question our employees about their
own union activities or opinions or the union activities
or opinions of their fellow, employees.
WE WILL NOT ask employees to learn about and
report back to us concerning union meetings or other
union activities.
WE WILL NOT threaten employees with being fired,
laid off, or otherwise badly treated if they support or
vote for a union.
WE WILL NOT threaten that the workweek will cut
down or that working conditions will be changed if the
employees choose a union to represent them.
WE WILL NOT threaten to discharge or otherwise
badly treat older or handicapped workers if the
employees choose a union to represent them.
WE WILL NOT make our employment policies with
respect to race depend on whether or not our employees
choose a union to represent them.
WE WILL NOT in any similar or related manner
interfere with , restrain , or coerce our employees in the
exercise of their rights to self-organization, to form,
join, or assist a labor organization, to bargain
collectively through a bargaining agent chosen by
themselves, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or,protection, or to refrain from any or all such
activities.
All our employees have the right to join or assist, or
not to join or assist , Southern Council of Lumber and
Plywood Workers, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other union.
J. A. OLSON COMPANY,
DIVISION OF N.M.S.
INDUSTRIES, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 746 Federal
Office Building , 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.