Stuttgart Shoe Corp.

National Labor Relations Board - Board Decisions

Nov 13, 1964

149 N.L.R.B. 663 (N.L.R.B. 1964)

STUTTGART SHOE CORPORATION .663
Stuttgart Shoe Corporation and, United Shoe Workers'of Aaimer-
ica, AFL-CIO. Case No. 26-CA-1708. November 13, 1964 .
DECISION AND ORDER -
On August 6, 1964, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. He also found that Respondent had not engaged in
certain other unfair labor practices. alleged in the complaint and
recommended dismissal of those allegations. Thereafter, General
Counsel filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no- prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Deci-
sion , the exceptions, the brief, and the entire record in the case, 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 Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Stutt-
gart Shoe Corporation, shall take the action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint be, and it hereby•isi dis-
missed insofar as it alleges discrimination against Marie Sutton.-
'As the Respondent has not excepted to the violations of Section 8(a)(1) found by
the Trial Examiner, we have not considered the Trial Examiner 's findings on their merits,
but adopt them pro forma.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Hearing in this proceeding was held before Trial Examiner Benjamin B. Lipton
in Stuttgart , Arkansas, on March 17 , 1964, based upon a complaint by the
General Counsel1 alleging that Respondent committed violations of Section
8(a)(1) of the Act-by making coercive statements to the employees in a series
of preelection speeches and handbills , and by revoking a promise to increase
the pay of Marie Sutton because of her union activities . All parties were represented
1 The charge was filed and served on December 26, 1963, and the complaint issued on
February 20, 1964.
149 NLRB No 69.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and participated in the hearing, and, at the close thereof, the General Counsel
argued orally on the record in lieu of filing a brief. Respondent filed a brief
which has been duly considered.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses at the hearing, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, at its place of business in Stuttgart, Arkansas, is engaged in
the manufacture of men's, women's, and children's slippers. During the year
preceding issuance of the complaint, it had a direct outflow in interstate commerce
of finished products valued in excess of $50,000, and a direct inflow in interstate
commerce of purchased materials valued in excess of $50,000. Respondent admits,
and I find, that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Shoe Workers of America , AFL-CIO, herein called the Union, is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background concerning election proceeding
On October 16, 1963,2 the election petition was filed with the Board (Case
No. 26-RC-2063); on November 21, the Regional Director issued a Decision
and Direction of Election; on December 20, the election was conducted which
the Union lost by a vote of 66 to 36, with 4 ballots challenged; on January 31,
1964, objections which had been timely filed by the Union were sustained
by the Regional Director, after investigation, in a Supplemental Decision, Order,
and Direction of Second Election; on February 11, 1964, the Employer filed
with the Board a request for review of the Regional Director's action; and
on March 17, 1964, the Board formally denied such request. It may be noted
that the Union's objections, which were sustained in the representation proceeding,
alleged employer interference with the election based upon the same speeches
and handbills in evidence herein concerning the issues of coercive preelection
conduct raised in the complaint.3
B. The alleged unlawful preelection statements
Concerning these allegations, the sole evidence consists of documents reflecting
three speeches made to the assembled employees by General Manager James
S. Wilson on December 2, 16, and 19,4 and three handbills distributed or mailed
to the employees on December 13 and 17.5 It is necessary to set forth herein
only the relevant portions of these documents.°
2 All dates are in 1963, unless otherwise indicated.
8 Although, as requested, official notice has been taken of the formal facts in the repre-
sentation proceeding, the findings therein are by no means to be construed as res indicate
or otherwise binding upon the Trial Examiner with respect to the present complaint case,
which involves substantively different Issues and a different standard of proof. See The
Little Rock Downtowner, Inc., 143 NLRB 887, footnote 4 of Trial Examiner's Decision.
* It was stipulated that the printed text of each of these speeches was followed without
deviation.
5 Three additional handbills (General Counsel's Exhibits Nos. 8, 9, and 10) were Intro-
duced merely to show "the complete picture or background," and were not alleged as con-
taining any coercive statements. I find nothing of substance in these three exhibits to
warrant discussion of their contents.
6 Selected or particular statements may not be considered as If uttered In a vacuum but
are to be assessed in total context. E g., Carl T. Mason Co., Inc., 142 NLRB 480;
Decorated Products, Ino., 140 NLRB 1383. In describing the "total context" herein, it suf-
flces to indicate only such language and circumstances as are directly related and relevant
to the particular issues raised. Nothing has been omitted as would materially affect the
results. In this connection , - Respondent 's arguments in its brief and In Its request for
review have been carefully examined.
STUTTGART SHOE CORPORATION 665
1. In the first of the speeches, on December 2, General Manager Wilson
stated:
... I do not want a union in this plant. I am firmly opposed to unionization
.and will fight the union in every legal way possible... .
Let's take a good look at this "campaign for trouble" being staged
by the union. In the past we have communicated quite freely as people
working together should do. We have always been able to talk to each
other off the cuff in an informal manner. This privilege is being threatened
by outsiders. The union is trying to come between us.
Wilson then mentioned the "tremendous risk" involved in building and develop-
ing the plant in the 4 years of its existence, the difficulties encountered, and
the growth achieved, thereby making available a greater number of jobs, "with
better job security." This growth, he said, had been accomplished without a
union, and "could not have been accomplished with the blight of unioniza-
tion." He continued at a later point:
In the past we have always tried to discuss with you and satisfactorily
work out any problems that we might' have, because we are personally
interested in you and feel that you are personally interested in this com-
pany ...
However, if you bring in these union outsiders we will know that our
past relationship has come to an end. We will deal with you impersonally
and at arms' length. Our company has no desire to show cooperation and
understanding to anyone that does not trust and have confidence in it. . .
... if a union wins an election all it wins is the right to bargain-nothing
more. We are not compelled to agree to any proposals or requests the
union makes. We are not required to make any concessions to the union.
Let me repeat-extravagant and empty promises are all the union can
give you. The union can't get you a thing unless we agree to it.. .
The next thing I want to discuss with you is of great importance, so
please listen carefully.
A strike could happen here. The only way the union can try to force
us to do something that we are unwilling to do would be to pull you
out on a strike.
Under the law, if you strike to try to force the company to agree to
the union's economic demands you place your job on the line. The company
can and will permanently replace you. You can lose your jobs.
An economic strike can cause us to lose business. This might cause
us to have to shutdown the plant. If so, you will be without a job... .
Respect must be earned. You have earned our respect by your loyalty
and hard work. We have no respect for the union. We owe your personal
request far more consideration than the demands of a union....
Don't sign a union card. If you don't sign, the union never gets its foot
in the door and we won't be faced with the possibility of strikes, trouble and
misery, lost work and lost pay....
2. The handbill on December 13 stated at the outset: "A STRIKE COULD
HAPPEN HERE'! The only way the union can try to force us to do something
that we are unwilling to do would be to PULL YOU OUT ON STRIKE." And on
the second page: "YOU DON'T NEED A UNION TO REPRESENT YOU. We
owe your personal requests far more consideration than the demands of a union.
The union's are strangers to us-we don't owe these strangers anything."
3. Speech on December 16:7
If the union wins the election everything will be up for grabs. The pay
rates, holidays, vacations, and other benefits you now have will be bargained
for anew. Why?
Because bargaining starts from scratch. You might wind out with more
than, or the same as, or you could wind up with less than you have now.
If the union wins the election we will be obliged to negotiate and make a
contract with it-and we will-but we are not obligated to agree to any
demands a union makes....
7 Treated separately , infra, is a portion of this speech which is alleged as a threat to
discharge employees if they vote for the Union.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You will not automatically get a pay increase and additional benefits if the
union wins the election. Pay increases and additional benefits have to be
negotiated....
The union can't give you anything. It doesn't have anything to -give.
The Union does not give pay increases, or fringe benefits-the Company does.
All the union can do is beg and plead. Do you want to be a part of such
of an indignity and farce? Of course not-you want to stand on your own
two feet with dignity and respect.
We owe your personal request far more consideration that the demands of
a union. The union is an outsider to us. We don't owe this outsider
anything.
4. The handbill on December 17 8 was presented in question and answer from, viz:
1. If the Union gets in will it call a strike?
The Company will be obliged to negoiate with the union, but it is not
obligated to agree to any of the extravagant and empty promises the
union has made to you or any other proposals or requests that it makes.
The only way the union can try to force us to do something we are un-
willing to do WOULD BE TO PULL YOU OUT ON STRIKE.
2. If a strike is called can I lose my job?
Yes! If you go out on strike to try and force the Company to agree
to the union's demands on wages and benefits, the Company is free to
permanently replace you. YOU COULD LOSE YOUR JOB.
3. Will the Company give in to the union's economic demands if a strike is
called?
NO. The union can stretch a picket line from here to Casscoe and
back again but we will not yield to strike pressure-EVER.
4. If I go on strike for wages, and benefits will the Company replace me?
YES! This Company will exercise its legal right to permanently re-
place you....
6. What can I gain by going out on strike?
Everbody knows that strikes means trouble and dissension, strife and
misery, lost work and lost pay, debt and regret....
7. What does the union win if it receives the majority of the votes cast?
All it wins is the right to bargain-NOTHING MORE. BARGAIN-
ING STARTS FROM SCRATCH. The pay rates, holidays, vacations,
and other benefits you now have will have to be bargained for anew.
EVERYTHING IS UP FOR GRABS! You might wind up with more
than, or the same as, or YOU COULD WIND UP WITH LESS THAN
YOU HAVE NOW.
5. In another handbill on December 17, Respondent repeated the language with
the same emphasis as contained in its answer to question 7, immediately above. In
addition the one-page handbill states:
You have always been free to discuss your problems with me, PERSON-
ALLY AND INDIVIDUALLY. This is an advantage no union can equal.
If you vote this union in here it will legally represent you. I CANNOT
deal with you individually. OUR PERSONAL RELATIONSHIP WILL BE
GONE.
Do you want to lose our PERSONAL and INDIVIDUAL relationship and
have to depend on an outsider, the union, who can't possibly know and
understand your problems the way I do?
If you bring in this outsider I'll deal with it HARD-I'll deal with it
COLD-I'll deal with at ARM'S LENGTH... .
6. Speech on December 19
This is the last opportunity I will have to talk with you in a group before
the election tomorrow.
The union is still hard at•work peddling its misrepresentations and outright lies.
Yesterday it accused the Company of ignoring the law.
General Counsel's Exhibit No. 7.
STUTTGART SHOE CORPORATION 667
It said I deliberately lied to you about bargaining from scratch and accused
me of trying to scare you into voting NO.
You know my reputation for honesty-that I have never knowingly lied to
anyone and I never will.
I leave the deliberate misrepresentations and lies to the union. Let me give
you proof positive that the union is deliberately misleading you.
Lets look at the law:
This is Volume 118 of the Decisions of the National Labor Relations
Board. (Hold book up and show.)
I would like to read several statements to you from the Schick, Inc., case on
pages 1160, 1164.
This is the current law today and it has not been overruled.
(Then read the words and passages underscored in red.)
What did the Board hold? The Board held that the statements "bargain-
ing starts from scratch" and the other statements by the foremen were permis-
sible and legal.
Lets set the record straight: I say again, bargaining starts from
scratch. The pay rates, holidays, vacations, and other benefits you now have
will have to be bargained for anew.
Everything is up for grabs. You might wind up with more than, or the
same as, or you could wind up with less than you have now.
Every word of this statement is true and I am not ignoring the law.
If the union boys say this is untrue, tell them to have their attorneys check
the following case: Schick, Inc.; Volume 118 NLRB Decisions pages 1160-
1164. If you would like to read the case you are welcome to come in my
office and do so.
Let me read you a quote from Universal Producing Company, Volume 123,
NLRB Decisions, Page 550.
"Should a contract be negotiated, present wages, benefits, etc., are first
thrown out the window. When negotiating we start from scratch. Nothing
will be carried over."
The Board found this to be merely an expression of the employers' legal
position .... 9
Analysis and conclusions
For purposes of an unfair labor practice proceeding, statements uttered in a
preelection campaign are of course privileged under Section 8(c)- as free speech
unless they expressly or impliedly contain a threat of reprisal or force or promise of
benefit. Also, in determining whether such statements have a tendency or effect
of being coercive, consideration must be given to the nature of the election con-
test-in which frequently emotions are aroused and extreme zeal is brought to bear
in expounding partisan views. Certain statements in themselves are clearly coer-
cive or clearly privileged; others have to be construed, in the light of the entire
picture, whether the employees may reasonably infer restraint or coercion. There
is no pat formula. In the many cases before the Board, there are constantly
evolving similarities and variations, but rarely are two cases identical. Thus, the
parties assume a risk, in lifting language from Board cases for use in electioneer-
ing, that they may be misconstruing or misapplying the Board holding or that the
situation in the prior case may be materially different from their own. And al-
though the message is conveyed in the form of one's opinion stating or misstating
the legal effect of the Board decision, any coercive impact upon the employees is
not thereby lessened or licensed.
Here, it is evident as to certain of the statements described above, considering
tone, content, and context, the Respondent has exceeded the bounds of privilege.
(1) While Respondent may argue that it intended merely to express its prefer-
ence for individual bargaining, i.e., maintenance of the status quo, the reasonable
import of its actual communication to the employees was that they would suffer a
distinct detriment if they chose in the election to change to a collective form of
representation. Thus, the point was repeatedly made, in necessary effect, that
Respondent "has no desire to show cooperation and understanding" to any em-
ployee who, by voting for the Union, demonstrates that he does not "trust and have
9 Among other things, in the remainder of this speech, Wilson repeated in the same
form the language in his first speech on December 2, supra, beginning with "A strike
could happen here," and ending with "if so, you would be without a job."
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confidence" in Respondent; that Respondent would have "no respect for the union"
if selected by the employees; that all a statutory bargaining representative can do
is "beg and plead," and the employees would not want to be "part of such an
indignity and farce"; that Respondent would accord the employees' personal re-
quests "far more consideration than the demands of a union"; and that the Union
would be an "outsider" to whom Respondent would not owe anything.
Nothing is more fundamental in the Act than the right of employees in dealing
with their employer to protect their mutual interests by being represented in a
collective fashion 10 Their union representative, when properly chosen, is fully
entitled to respect and recognition from the employer. While in certain aspects
the Union also has status as a separate entity, it is nevertheless in a vital sense the
agent and alter ego of the collective employees in the bargaining unit.
Respondent had expressed its antipathy to union representation generally, and
indicated, e.g., that the company growth and availability of greater job security
for employees could not have been accomplished in the past-and impliedly would
not be possible in the future-with "the blight of unionization." In such a context,
Respondent's statements in question could reasonably be construed by the em-
ployees as deprecating the principle of collective bargaining and, specifically,
threatening the employees that Respondent would accord less consideration to their
requests and demands concerning employment conditions if made through the
medium of a duly designated union than if made by them personally. Such a
stated position, I find, contains threats that, if the Union won the election, Respond-
ent would refuse to bargain in good faith and would deprive the employees of
tangible advantages and benefits they would otherwise be given without repre-
sentation."
(2) In the present situation, Respondent clearly was not, in its repeated use of
the entire "bargaining starts from scratch" argument to the employees, merely
mentioning a technical phrase by way of stating a noncoercive legal position.12
It reiterated that "everything was up for grabs," and specified pay rates, holi-
days, vacations, and "other benefits you now have." As portrayed by Respond-
ent13 the concept of bargaining from a start of "scratch" would logically and
reasonably connote to the employees that all existing benefits would be withdrawn
when bargaining commenced, thus depicting an immediate economic detriment if
they designated a union to represent them.14
The Seventh Circuit Court of Appeals held in the Marsh case: 15
The Board found speeches of Marsh's officials to employees ... contained
threats of loss of benefit and economic reprisal.
The statements found to have been made are that "if a union got in and we
started negotiations . . ., everything would be wiped cleaned," and that the
employees would lose some benefits, especially the existing vacation plan, and
would have to "start from scratch "
... We cannot say the Board erred in concluding that the statements of
respondent's official . . . were not protected by § 8(c) and that they violated
§8(a)(1) of the Act. The Board could have reasonably inferred that the "lis-
tener-employees" took the statements as threats of loss of benefits and of
economic reprisal. Hendrix Mfg. Co. v. NLRB, 321 F. 2d 100, 104, 53
LRRM 2831 (5th Cir. 1963).
10 Section 7: "Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their own
choosing . . . "
"The statements relied upon, as described hereinabove, were made between Decem-
ber 2 and 16. The coercion inherent therein was not neutralized or dissipated by Respond-
ent's further statements on the subject in the handbill on December 17, supra, in which
-Respondent indicated the legal interpretation, in substance, that if the Union were selected
it could no longer bargain with the employees individually, and the existing personal and.
individual relationship would therefore be gone.
32iCf Trent Tube Company, etc., 147 NLRB 538.
18 Especially in light of Respondent's hostility to the principle of a collective bargaining,
as discussed in subsection (1) above
1, Marsh Supermarkets, Inc., 140 NLRB 899, enfd. In relevant part, 327 F. 2d 109
(C.A. 7) ; Surprenant Mfg. Co., 144 NLRB 507; General Industries Electronics Company,
146 NLRB 1139; Dal-Tex Optical Company, Inc., 137 NLRB 1782.
15 Ibid.
STUTTGART SHOE CORPORATION 669
Much has been spoken in Board cases on the subject of, "bargaining from
scratch" and, arguably, over the long period the holdings are not entirely consis-,
tent and clear. However, I do not believe the current controlling precedent con=
flicts with the view which I hold that the proposition that "bargaining starts from
scratch," as described to the employees by Respondent, is coercive in nature and
basically at odds with the collective-bargaining purposes of the Act. Certainly,
employees having tenure and existing employment conditions would not in their
individual capacity bargain with the employer from "scratch," but rather from the
level of those benefits they already enjoyed. Just because these same employees
resort to their statutory right of having an agent represent them collectively
should not and does not alter their prerogatives and benefits nor, especially, serve
to justify a deliberate reversion by the employer to "scratch" as the starting point for
bargaining on a collective basis. For an employer, as here, to tell the employees
in an election campaign that it will take such a position at the outset of bargaining
with a union impliedly conveys a threat of reprisal and of discontinuance of exist-
ing benefits; it is not the same as telling them that all their conditions of employ-
ment are subjects of bargaining and negotiable.
Respondent seeks to establish a distinction here on the strength of its added,
remarks that "you might wind up more than, or the same as, or YOU COULD
WIND UP WITH LESS THAN YOU HAVE NOW." How the employees may
wind up would not of course detract from the coercive effect of how, as they are
told, they will have to start bargaining. Moreover, as shown, the emphasis
was placed by Respondent on the clause that they "could wind up with less,"-a ;
tactic which would appear designed to impress the employees that such is the likely
event.16
(3) Respondent repeatedly alluded to the prospect of strikes, accompanied by
trouble, dissension, strife, misery, lost work, and lost pay; it referred to the Union
as staging a "campaign for trouble"; and it insisted that-"The only way the union
can try to force us to do something that we are unwilling to do would be to
PULL YOU OUT ON STRIKE," that "A STRIKE CAN HAPPEN HERE," that it
could cause a plant shutdown because of lost business, and that Respondent would
exercise its right permanently to replace economic strikers. In all the record
circumstances, these remarks reasonably could lead employees to understand that
their selection of the Union would inevitably result in a strike, with the conse-
quences of trouble, misery, etc., and loss of jobs through replacement or plant
shutdown. The intended effect, I find, was to instill in the employees a sense of
fear of such dire results and to impress upon them the futility of attempting to
have the Union represent them 17
Accordingly, it is concluded that Respondent, in making the preelection state-
ments discussed in subsections (1), (2), and (3), above, interfered with, restrained,
and coerced employees in the exercise of their self-organizational rights, in viola-
tion of Section 8 (a) (1) of the Act.
Alleged threat of discharge in December 16 speech
The General Counsel relies on Wilson's remarks, viz:
The Union has started a vicious rumor that you will be fired if you don't
vote for the Union. This rumor is absolutely false.
I give you my personal assurance that you will not be fired for voting NO'
against the union.
Its an old union campaign trick to tell employees the company will fire the
ones that have signed union cards unless you vote for the union to'proteet
your job.
"'Particularly, as Respondent's communications to the employees stressed that only'
Respondent had full control of their conditions, e.g.: "It is the company that furnishes
you your job-not the union. It is the company that pays you your wages-not the
11union....
14 E g., Ideal Baking Company of Tennessee, Inc., 143 NLRB 546 ; Universal Manu-
facturing Co., Inc., 145 NLRB 1365; Surprenant Mfg. Co., supra; General Industries'
Electronics Company, supra. Of. Shure Brothers, Incorporated, 147 NLRB 43, in which
the'employer's preelection reference to the union's record of strikes and violence was held
not to have interfered with the election, where it was not accompanied by any statement
that reasonably could have led the employees to believe in the futility of selecting a repre-
sentative, or that the employer would not bargain in good faith, and where the union had
ample opportunity to reply on the subject of its strike record.
670 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
Even though you may have signed a• union card, you can- vote for the
company and against the union with complete assurance that your job is safe.
[Emphasis supplied.]
Only the company can fire you, and I certainly am not going to fire anyone
for voting for the company.
Quite often you hear about employees that have been fired because they
were for the union. Have you ever heard of an employer firing anyone for'
being for the company? Certainly not-and you never will.
If you signed a union card-forget it. I won't fire you for voting NO.
Plainly, Respondent was purporting to answer and emphatically deny an alleged
rumor attributed to the Union that employees would be fired if they did not vote
for the Union. It is also apparent that Respondent seized upon this alleged rumor
as a basis for making propaganda of its own. It equated voting against the
Union with voting for the Company, and elaborated on an obvious point that no
one would be fired for voting for the Company. While the statements made are
not free of ambiguity, I cannot agree with the contentions of the General Counsel
that, by failing to point out the alternative, and to include the express assurance,
that employees would not be fired for voting for the Union, Respondent impliedly
threatened employees with discharge. Particularly in view of Section 8(c), I
would not in this instance place such a burden on Respondent to pass upon alter-
natives. In my opinion, the conclusion sought by the General Counsel is entirely
too remote, and it would be unreasonable for employees to draw such an infer-
ence of a discharge threat.
C. Alleged discrimination against Marie Sutton
Sutton's regular job for 4 years has been that of a cutter in the cutting depart-
ment. There her average pay, on a production quota basis, has been $1.50 to
$1.60 an hour, except during slack periods. She has also worked in the shipping
department for short intervals when asked to assist there because of pressure of
work; and on such occasions she received her average pay of a cutter, as compared.
with the standard rate of $1.25 an hour given to the regular shipping employees 18
On September 12, in operating her cutting machine, Sutton suffered a physical'
injury.19 On September 21, she visited her doctor, who told her not to work
on her cutting machine for a period of 6 weeks. Thereafter, she spoke to Respond-
ents plant superintendent, W. G. McCormack, concerning the matter. McCor-
mack asked her to obtain medical confirmation from the doctor of her choice, and
set in motion procedures for workmen's compensation. Sutton's doctor wrote to
Respondent, recommending in effect that Sutton be placed on another job temporar-
ily. Although it was eventually determined that her injury was covered by work-
men's compensation, Sutton chose to continue working at a different assignment.20.
On October 14, she was temporarily transferred to the shipping department with
instructions not to do any heavy lifting and with the understanding that she would
be given the regular pay in that department of $1.25 an hour.21
On November 12, about 9 a.m., General Manager Wilson had a conversation
with Sutton. According to Sutton, he told her, "We have decided that you are as
valuable to us back here as you were on your cutter, so we have been thinking
about adjusting your pay accordingly." 22 Sutton was under subpena, at the Union's
18 This was in accordance with Respondent's promulgated policy: (a) An employee tem-
porarily transferred to a lower paying job because of company need is paid at the average
rate of his regular job; and (b) an employee who runs out of work at his regular job and
in lieu of being laid off is temporarily transferred to a lower paying job is paid the
lower rate .
19 Occupational bursitis and muscle spasm syndrome about her left shoulder.
.20 If she had stayed home because of the injury, she would have received about $35 a
week.
21 McCormack credibly testified that he told Sutton at the time of her, transfer that she
would receive $1.25 an hour. Sutton had denied there was any discussion of pay.
22 Wilson testified that he said she was "doing a very good job and that if I could, I was
going to try to get her higher pay while she was back there." He stated that he meant
10 or 15 cents an hour more than the $1.25 she was getting. Sutton stated that her
understanding was that she would receive the average rate she would have made on her
cutting job, i.e., $1.50 to $1.60 an hour. It is unnecessary to resolve this conflict in view
of the finding ultimately made herein. - ,
STUTTGART SHOE -CORPORATION 671
request, to testify later that morning at the Board hearing scheduled for 10:30
a.m. About 10:15 a m., after Wilson had spoken to her, she informed Respond-
ent23 of her subpena and then left the plant for the-hearing. She was present in
the hearing room but was not called-to testify. When she returned to the .plant,
Wilson brought her back to his office and told her that, under the company policy,
she was required to give notice when she had to be off from work so that someone
could take her place, and he warned her that if it ever happened again, or she was
ever late for work, she would be terminated.24
Several days later, Wilson "contacted" Respondents attorney (of record herein)
and asked him if he "could do anything about the wage rates in the factory" and
his answer was "not to change any previous pay practices that we had had before
the petition for an election . . . because we might be charged by NLRB with
trying to influence the employees...."
Following November 12, when Wilson first spoke to Sutton about a possible pay
raise, the payroll period ended November 16, and paychecks therefor were issued to
the employees on November 22. On the latter date, when Wilson came by her
workstation, Sutton asked him "about this adjustment, as her check did not reflect
any wage increase. Sutton testified that Wilson said, "Well, Marie, you've gone
union. . . We couldn't do it because it might be considered a bribe." She indi-
cated at the hearing that she "felt sure" that he was referring to her personally
as having "gone union." Wilsons version, which I credit for reasons shown below,
was that he merely "told her because of the union we couldn't make any changes
at that time," as "it might be considered a bribe." The following Monday, No-
vember 25, 6 weeks after her transfer to shipping, Sutton was returned to her
regular job in the cutting department.
Conclusions as to Sutton
Apart from her appearance at the Board hearing on November 12, there is no
evidence or assertion that Sutton engaged in any union activity, or that Respond-
ent so believed.25 The complaint does not allege that Wilson's promise to Sutton
on November 12 regarding a pay raise was an allurement or attempt to influence
her as to her testimony at the representation hearing, or that, for any reason, it
constituted a violation by Respondent. General Counsel contends that Respond-
ent's knowledge of Sutton's union activity is to be inferred from her appearance at
the representation hearing, and that Wilson, on November 22, revoked his promise
of a wage raise "solely as retaliation for her appearance as a witness on behalf of
the union at the `R ' case hearing." For its part, Respondent "admits" that Wil-
son's promise to Sutton on November 12 "was per se violative of the Act, even
when corrected by Respondent on November 22," but submits that this was an
"isolated incident" and "insufficient to warrant any remedial order."
It does not follow that any pay raise given during the pendency of an election
petition is an unfair labor practice. No violation is committed where it is clear and
can be found as a matter of evidence that the purpose in giving or promising a
pay raise was unrelated to the pending election and was not otherwise unlawfully
motivated. I do not construe Respondent's admission of a "per se" violation to
mean that, in making the promise to Sutton on November 12, Respondent was
improperly motivated, and I would not, therefore, base any finding on such an
admission.
It is evident, as the General Counsel notes in his argument, that on No-
vember 12 Sutton was not actually promised a wage increase, at least not
immediately; that the conversation took place toward the end of the 6-week period
of her temporary assignment ; that any raise would have been, at most, for a period
of under 2 weeks; and that Sutton was back on her regular job as a cutter the
next workday after the withdrawal of the alleged promise on November 22.
Concerning her conversation with Wilson on November 22, Sutton's -testimony
that he told her she would not receive a raise because she had "gone union"
attributes to him a virtual admission of the alleged violation . This version appears
improbable, especially when considered with (a) her further testimony that he gave
as a reason that such a raise might be considered a bribe, and (b) the dearth of
evidence that Respondent had knowledge of any union activity on her 'part. Her
23 She did not specify to whom she had reported.
u Presumably , Wilson admonished Sutton because she gave insufficient notice (15
minutes).
21 Sutton was an observer for the Union at the 'Board election on December 20.
672 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
own testimony that Wilson's stated reason for not granting the raise related to
the pending Board election does not plausibly comport with the asserted theory
that the Respondent's purpose was one of reprisal against Sutton. The fact that
Sutton attended the Board hearing under subpena at the Union's request is a slim
and insufficient basis, in the circumstances, to support the contention that Respond-
ent's motive was to retaliate against her for such attendance. On the Respond-
ent's side, there is apparent justification in its defense that Sutton's raise was withheld
in line with its policy generally of not granting raises at this time in order to avoid
any charge of attempting to influence employees in connection with the forthcom-
ing election. An unlawful motive cannot be ascribed to Respondent on this ground.
Accordingly, the allegation involving Sutton will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that Respondent, Stuttgart Shoe
Corporaton, Stuttgart, Arkansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that if they select United Shoe Workers of America,
AFL-CIO, or any other labor organization, as their collective-bargaining representa-
tive, it will discontinue existing benefits, refuse or fail to bargain in good faith, or
take other economic reprisal against them, including job loss, or instilling in its,
employees the impression that it would be futile to have a collective-bargaining
representative.
(b) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of their rights under the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act.
(a) Post at its Stuttgart, Arkansas, plant; copies of the attached notice marked
"Appendix." zs Copies of said notice to be furnished by the Regional Director for
Region 26 shall, after being duly signed by Respondent, be posted by it immedi-
ately upon receipt thereof and be maintained for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by any other material.
sa If this Recommended Order Is 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. If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order."
HERMAN WILSON LUMBER COMPANY 673
(b) Notify the Regional Director for Region 26, in writing , within 20 days
from the date of this Trial Examiner's Decision and Recommended Order, what
steps Respondent has taken to comply herewith.27
It is further recommended that the complaint here be dismissed insofar as it
alleges violations of the Act not specifically found herein.
211f this Recommended Order is adopted by the Board , this provision shall be modified
to read : "Notify the Regional Director for Region 26, in writing , within 10 days from the
date of this Order, -what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, you are notified that:
WE WILL NOT threaten our employees that if they select United Shoe Work-
ers of America, AFL-CIO, or any other labor organization , as their collective-
bargaining representative , we will discontinue existing benefits or take other
economic reprisal against them , including job loss, or refuse or fail to bar-
gain in good faith , or instill in our employees the impression that it would be
futile for them to have a collective -bargaining representative.
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce our employees in the exercise of their right to self -organization, to
form, join , or assist the above -named , or any other , labor organization, to
bargain collectively through representatives of their choosing , and to en-
gage 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
refrain from any or all such activities.
STUTTGART SHOE CORPORATION,
Employer.
Dated------------ ------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone
No. 534-3161, if they have any question concerning this notice or compliance with
its provisions.
Herman Wilson Lumber Company and International Wood-
workers of America, AFL-CIO, CLC. Cases Nos. 26-CA-1683
and f6-CA-1704. November 13, 1964
DECISION AND ORDER
On June 17, 1964, Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. The
Trial Examiner also found that the Respondent had not engaged in
certain other unfair labor practices, and recommended that the al-
legations pertaining thereto be dismissed. Thereafter, both Respond-
ent and General Counsel filed exceptions to the Decision and support-
ing briefs.
149 NLRB No. 70.
770-076-65-vol. 149-44