Tennessee Handbags, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1969

179 N.L.R.B. 1045 (N.L.R.B. 1969)

TENNESSEE HANDBAGS
Tennessee Handbags, Inc and International Leather
Goods, Plastics & Novelty Workers Union,
AFL-CIO. Cases 10-CA-7681 and 10-RC-7319
December 11, 1969
DECISION ,' ORDER, AND
CERTIFICATION OF RESULTS
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On August 14, 19,69, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding , finding that 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 Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
these allegations be dismissed . Finally, the Trial
Examiner found merit in the Union's objections to
the conduct of the election held on February 11,
1969, in Case 10-RC-7319, and recommended that
the election be set aside . Thereafter, Respondent
filed exceptions to the Trial Examiner 's Decision
and a supporting brief.
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 . this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions , and recommendations of the
Trial Examiner only to the extent consistent
herewith.
1. The Trial Examiner found that Respondent
granted and announced a profit- sharing
retirement- life insurance - plan and a college
scholarship program for employees ' children while a
second election was pending , for the purpose of
interfering with the employees' free choice of a
bargaining representative , in violation of Section
8(axl) of the Act. We do not agree.
The Union filed its petition in Case 10-RC-7319
on February 1, 1968, and an election was conducted
on March 21 pursuant to a Decision and Direction
'Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board 's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products , inc.. 91 NLRB 544, enfd.
188 F.2d 362 (C.A. 3). We find no such basis for disturbing the Trial
Examiner 's credibility findings in this case.
1045
of Election issued by the Regional Director for
Region 10 on February 20. The Union lost the
election. Thereafter, on May 29, the Regional
Director, in sustaining the Union's objections to the
conduct of the election, ordered that a second
election be held on July 11, 1968. However, after
the Union filed an unfair labor practice charge in
Case 10-CA-7397, the Regional Director, pursuant
to established Board policy, held the second election
in abeyance, pending the outcome of that unfair
labor practice proceeding.
At about the time of the Regional Director's
decision to order a second election and its
subsequent blockage by the intervening unfair labor
practice charge, Respondent began work on the
retirement-life insurance plan and the scholarship
program. Respondent had been "thinking about"
the-plan for 2 years, but took no steps to implement
it before this time. The scholarship program resulted
from a suggestion by a local school official that
Respondent help an employee's son attend college.
Respondent's president was a graduate of the
university where the program was established and
had made personal contributions to it before.
With the exception of the isolated 8(a)(1)
violation found by the Trial Examiner, which we
adopt, there is no evidence that Respondent was
conducting an unlawful antiunion campaign when it
announced the two employee benefits. The plan and
program were announced to the employees by letter;
the retirement-life insurance plan on October 31 and
the scholarship program on December 18.2 The
Respondent asserts that the announcements were
timed so that the cost of the benefits could be
charged against the fiscal year ending November 30,
1968.
After the Trial Examiner dismissed the complaint
in Case 10-CA-7397,3 the Union filed a "request to
proceed" with the election with the Regional
Director on January 17, 1969, and the second
election was held on February 11. In that election,
of 419 eligible voters, 139 cast ballots for the Union,
224 cast ballots against the Union, and 29 cast
challenged ballots. Thereafter, the Union filed
objections to the conduct of the election and the
charge in Case 10-CA-7681, and, since the same
issues were involved, the cases were consolidated for
hearing. The complaint alleged, inter alia , that the
benefits were announced at a time when the second
election was pending, for the purpose of causing the
employees to reject the Union.4
'The scholarship was funded by an initial endowment of $10,000 and
provided a $500 annual award with the first priority to children of
employees . The program was approved by Respondent 's Board of
Directors on November 7, 1968
'In Tennessee Handbags, Inc 175 NLRB No. 22 , the Board reversed the
Trial Examiner and found that Respondent had violated Sec. 8 (a)(l) of the
Act by not disavowing an antiunion advertisement in the local newspaper,
even though it was not responsible for placing the advertisement
'In the absence of exceptions by General Counsel , the Board adopts pro
forma the, Trial Examiner 's finding that Respondent did not violate Sec.
8(a)(1) by increasing hospitalization benefits
179 NLRB No. 161
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well established that Section 8(a)(l) prohibits
conduct by an employer "immediately favorable to
employees which is undertaken with the express
purpose of impinging upon their freedom of choice
for or against unionization and is reasonably
calculated to have that effect." Under the
circumstances of this case, we are not convinced
that the General Counsel has established, by a
preponderance of the evidence, that Respondent
granted and announced the benefits for the purpose
of causing the employees to reject the Union.
We agree with Respondent's contention that the
announcement of the benefits was not timed to
affect the employees' vote because, at that time, the
second election was blocked by the intervening
unfair labor practice proceeding. While, in fact, the
Union filed its "request to proceed" 1 month after
the announcements, Respondent, although faced
with the possibility of the second election, did not
know when, if ever, it would be held. When this
circumstance is considered together with the fact
that during the period after the first election, the
Trial Examiner found that Respondent committed
only a single unfair labor practice, and that by a low
level supervisor, it is unreasonable to infer merely
from the timing of the announcements that they
were calculated to achieve the alleged unlawful
purpose. Accordingly, we shall dismiss this
allegation of the complaint.
2. While we adopt the Trial Examiner's findings
that Respondent violated Section 8(a)(1) when its
supervisor, Gattis, threatened one employee that
Respondent would discharge or lay off employees
when the work ran out rather than transfer them to
other jobs if the Union won the election, we hold
that it is too isolated an incident in a unit of over
400 employees to warrant setting aside the results of
the second election. Accordingly, we hereby overrule
the objections to the election.
As we have overruled the objections to the
election and as the tally of ballots shows that the
Union has not received a majority of the valid
ballots case, we shall certify the results of the
election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended, the National Labor
Relations Board hereby orders that Respondent,
Tennessee Handbags , Inc., Dandridge , Tennessee, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or
layoff in the event the employees should choose
International Leather Goods , Plastics & Novelty
Workers Union , AFL-CIO , or any other labor
organization , as their collective- bargaining
representative.
IN L R B v Exchange Parts Co. 375 U S 405, 409.
(b) In any like or related manner intefering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds is necessary to effectuate the policies of
the Act:
(a) Post at its plant in Dandridge, Tennessee,
copies of the attached notice marked "Appendix
A."6 Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly
signed by an authorized representative of
Respondent, shall be posted by it 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 displayed. Reasonable steps shall be
taken by Respondent to insure that such notices are
not altered, defaced, or covered by any other
material.
(b) Notify the said Regional Director, in writing,
within 10 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed, insofar as it alleges
violations of the Act not specifically found herein.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes has not been cast for International Leather
Goods, Plastics & Novelty Workers Union,
AFL-CIO, and that said labor organization is not
the exclusive bargaining representative of the
employees in the unit found appropriate, within the
meaning of Section 9 (a) of the National Labor
Relations Act, as amended.
'In the event this Order is enforced by a judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an Agency of the United States Government
WE WILL NOT threaten employees with discharge or
layoff in the event our employees should choose
International Leather Goods, Plastics & Novelty
Workers Union, AFL-CIO, or any other labor
organization, as a collective-bargaining agent.
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 International Leather Goods, Plastics & Novelty
Workers Union, AFL-CIO, or any other labor
organization, to bargain collectively through
TENNESSEE HANDBAGS
representatives of their own choosing, and to engage in
other mutual aid or protection, or to refrain from such
activities.
TENNESSEE HANDBAGS,
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
730 Peachtree Street, N.E., Atlanta, Georgia 30308,
Telephone 404-526-5760.
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG, Trial Examiner: Pursuant to
an order of the Director for Region 10 of the Board
consolidating for hearing a complaint previously issued by
him in Case 10-CA-7681 alleging that Tennessee
Handbags, -Inc. (herein called the Respondent or the
Company), had violated Section 8(a)(1) of the National
Labor Relations Act, as amended (herein called the Act),
and issues raised by certain Objections to Election filed by
International Leather Goods, Plastics & Novelty Workers
Union, AFL-CIO (herein called the Union or the
Charging Party),a hearing was held in Dandridge,
Tennessee, on May 13, 1969.
The complaint issued in Case 10-CA-7681 on April 15,
1969, was based on an amended charge filed by the Union
on March 24, 1969.' The complaint alleged that while the
petition for election was pending Respondent announced a
profit-sharing plan, additional life insurance benefits, an
increase in hospitalization benefits, and a university
scholarship fund providing preference for children of
company employees, all for the purpose of causing the
employees to reject the Union. The complaint further
alleged various unlawful threats to the employees if the
Union's organizational campaign was successful. The
answer admitted the announcement to the employees of
the various benefits but denied that these actions violated
the Act. The answer denied all other material allegations
of the complaint.
On April 18, 1969, the Regional Director issued his
Second Supplemental Decision, Order and Notice of
Hearing. Noting the issuance of the complaint herein
alleging conduct also raised as Objections to Election, the
Regional Director consolidated the cases for hearing and
ordered that Case 10-RC-7319 be transferred to the
Board.
All parties were represented at and participated in the
hearing and were afforded full opportunity to be heard, to
introduce evidence, to examine and cross-examine
witnesses , to present oral argument , and to file briefs.
Oral argument was waived and briefs were filed by all
parties.
a Bernard Yaker, Esq., of Vladeck, Elias, Frankle , Vladeck & Lewis,
Esqs , New York, N Y., appeared for the Petitioner in earlier stages of the
representation proceedings
'The original charge was filed on February 28, 1969
'In its brief the Union moved to reopen the proceedings to receive
certain documents attached to said brief which related to the Respondent's
profit-sharing plan. Because those documents appeared to have probative
1047
Upon the entire record in the case ,2from my reading of
the briefs, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I find
that Tennessee Handbags, Inc., a Tennessee corporation
with its principal office and place of business located in
Dandridge, Tennessee, is engaged in the manufacture and
sale of ladies' handbags.
During a representative 12-month period, Respondent
sold and shipped finished products valued in excess of
$50,000 directly to customers located outside the State of
Tennessee.
The Respondent is, 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 and meets the
Board's standards for the assertion of its jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
International Leather Goods, Plastics & Novelty
Workers Union , AFL-CIO, is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Chronology of Prior Proceedings
February 1, 1968 - Union filed petition in Case
10-RC-7319. February 20, 1968 - Regional Director
issued Decision and Direction of Election. March 21, 1968
- Election conducted Union filed timely objections.
May 29, 1968 - Regional Director issued Supplemental
Decision, Order & Direction of Election. June 1, 1968 -
Charge filed in Case l0-CA-7397. July 17, 1968
Complaint issued in Case 10-CA-7397. November 8, 1968
Trial Examiner issued Decision and Recommended
Order in Case 10-CA-7397 recommending dismissal of
complaint. January 17, 1969 - Union filed request to
proceed in Case 10-RC-7319. February 11, 1969 -
Second election conducted in Case 10-RC-7319. Union
filed timely objections. March 27, 1969 - Board issued
Decision and Order in Case 10-CA-7397 reversing Trial
Examiner and finding violation alleged.
B. The Grant of Benefits
1. The profit-sharing and insurance plan
On October 31, 1968, on company stationery,
Respondent's President Fred E. Rimmer sent the
following communication to the employees-
Dear Fellow Employee.
I am proud to announce that Tennessee Handbags is
establishing a Profit Sharing Retirement Plan. I have
value in this proceeding I issued an order directing the parties to show
cause on or before July 7, 1969, why the record should or should not be
reopened to receive the Union proferred documents Copies of the
documents were annexed to said order The Union made timely response
to said order urging receipt of the documents into evidence The
Respondent and General Counsel did not respond to the Order to Show
Cause Construing the silence of Respondent and General Counsel as
acquiescence in the receipt into evidence of the Union proferred documents
and as a waiver by them of any response thereto or argument thereon, I
issued an order on July 15, 1969, marking those documents as C P Exhs
1, 2, and 3, and reopening the record to receive those exhibits into
evidence It was further ordered that the record be closed as of that date.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long felt that social security did not provide an
adequate income for an employee's support at
retirement. Every employee working at Tennessee
Handbags will eventually be eligible to participate in
the plan. All employees presently employed with 5
years of continuous service and minimum age of 22 and
a maximum age of 60 are participants. In the future
years, all employees with the above qualifications will
be eligible.
The money to finance the Retirement Plan will come
from the profits of the Company. Profits resulting from
the combined efforts of everyone to produce quality
handbags at competitive prices. This Retirement Plan is
another way by which Tennessee Handbags can repay
the employees for their fine efforts. The funds will be
held in trust to provide you a retirement benefit at age
65. As an added benefit, the plan provides a death
benefit for your family.
The Fidelity Mutual Life Insurance Company will
administer the retirement plan Representatives of this
insurance company will soon be visiting with each
covered employee to explain how the plan works, and
what it means to them personally.
You will note that the entire cost of the plan is borne
by your company. We are gratefully aware of the loyal
cooperation and the faithful service of our employees.
In return, this plan has been set up to help you
guarantee your stake in the future.
The full details of the plan are included in the formal
Trust Agreement which you are free to review upon
request. This instrument will be maintained in my
office.'
Company President Rimmer testified that the
profit-sharing plan had been under discussion for
approximately 2 years and that definite work had been
done on the program since early spring of 1968. Rimmer
explained that the timing of the plan was influenced by a
desire to charge the cost of its first year of operation to
the Company's fiscal year ending November 30, 1968. The
announcement to the employees of the plan was dated
October 31 and Respondent's Board of Directors
approved it on November 7, 1968. The Company received
'C.P. Exh. 2 discloses that on November 22, 1968 , employee Grace L
Butterworth signed an application for insurance in the amount of $7,900,
with a premium of $136.46 and provision for premium notices to be sent to
Fred E Rimmer , Trustee, c/o Tennessee Handbags , Inc. The Fidelity
Mutual Life Insurance Company, administrator of the company
profit-sharing retirement plan, advised Butterworth that her death benefit
of $7,900 was effective as of November 29, 1968 (Charging Party 's Exhibit
1). Butterworth also received the following explanation of what the
Company's profit-sharing plan meant to her (Charging Party's Exhibit 3)
DURING WORKING YEARS
ANNUAL COMPENSATION
From Wages
Fringe Benefits Provided by Tenn. Handbags, Inc.
1. Vacation Pay
2. Employer's Contribution to-
$3,638.52
$163.20
a) Social Security $174.62
b) Workman 's Compensation $ 26.64
c) Unemployment Compensation $112 78
d) Hospitalization Ins. $ 55.92
approval of the profit-sharing plan from the Internal
Revenue Service about 6 weeks prior to the hearing herein
on May 13, 1969.
2 Increased hospitalization benefits
On November 28, 1968, the employees received on the
letterhead of the Tennessee Hospital Service notification
that effective January I, 1969, "your employer is
increasing the benefits in the Blue Cross program. This is
at no additional cost to you who are enrolled in the
program." The letter advised that the increased benefits
constituted a rise in maximum room eligibility under
major medical coverage from $20 to $40 per day and
Extended Care Facility and Home Health Agency
converage. The letter from the hospital service urged
employees not enrolled under the hospitalization program
to sign an application for coverage.
Rimmer testified that the Company had had a
hospitalization program in effect since about 1954. When
first installed the employees had paid the entire premium
for this insurance but as the plan had changed over the
course of the years with increases in premiums or added
benefits all of the increased costs had been absorbed by
the Company. Rimmer explained that as a result of
having changed the basis for the Company's experience
rating in 1966, Blue Cross by late 1968 was able to offer
either lower premium rates or an increase in benefits at
approximately the same cost. At that time the Company
decided to accept the offer of increased benefit under the
hospitalization insurance program and elected to raise the
major medical protection.
3. The university scholarship program
On December 18, 1968, on company stationery,
Rimmer sent the following letter to the employees:
Dear Fellow Employees:
"Christmas" means a lot of things, but to the
employees of Tennessee Handbags this season centers
chiefly around two of the finest things in life . . . home
and friends.
Looking back over the years and thinking of
Christmas days gone by makes us realize just how
empty life would be without the proper home life and
3. Value of 15-minute breaks annually $113 90 $ 647.06
TOTAL COMPENSATION $4,285 58
RETIREMENT
Profit-Sharing Plan'
I Death Benefit $7,900.00
2. Contribution this year $ 545.78
3 Cash Value at age 65 based on 63 earnings $53,623.00
4. Social Security Monthly Benefits at age 65 $ 127.00
5. Monthly Income at age 65 from Profit-Sharing Plan $ 299.00
TOTAL $ 426.00
NOTE : Value of Profit-Sharing Plan depends on future contributions
by employer based on profits earned.
TENNESSEE HANDBAGS 1049
good, true friends. This year in particular has been one
of great importance, to Tennessee Handbags. In
November, your company completed its plans for
creating a profit sharing pension plan for all qualifying
employees. Now, we are pleased to announce that your
company being vitally interested in helping qualified
and deserving students secure a college education, has
started a Scholarship Fund at the University of
Tennessee. I am sure the attached information sheet
dealing with the Scholarship Fund will be of great
interest to you and your family.
So at this season of the year we are thinking of our
fellow employees whose friendship has helped us along
the way. We hope this will be a truly Merry Christmas
for you and everyone at your house and that the New
Year will bless your home with all of the good things in
life.
Attached was a one-page document explaining the
operation of the scholarship program, stating that it had
been funded by an initial endowment from the Company
of $10,000 and that additional funds "shall be added from
time to time at the desire and discretion of company
management." The plan explanation stated that the first
priority in the award of the scholarship would go to "sons
and daughters of TENNESSEE HANDBAG employees
up through and including the foreman level."
The record contains a memorandum dated January 30,
1969, to all employees of the Company from the Financial
Aids Office, The University of Tennessee, Knoxville,
announcing that the Company had endowed a $500
scholarship to be awarded annually. This memorandum
from the University of Tennessee restated that the first
priority of preference in the award of this scholarship
would be to sons and daughters of company employees up
to and including the foreman level.
Rimmer testified as to the scholarship program that the
timing of its institution was influenced by a desire to
charge the endowment contribution to the fiscal year
ending November 30, 1968. The plan was approved by the
Company's Board of Directors on November 7, 1968.
Rimmer explained that as a graduate of the University
of Tennessee he had been making personal contributions
but the Company had not made any contributions to the
University prior to institution of this scholarship program.
Rimmer testified that the plan originated "in my mind"
when he received a call from a local school official
"before high school was out" in 1968 asking if he could
work out some kind of scholarship for the son of an
employee who was starting college in the fall of 1968.
Thereafter Rimmer discussed a scholarship plan with a
University employee who works for the Company 1 day
each week and this eventually lead to the scholarship
program announced to the employees on December 18,
1968.
4. Conclusions and findings
The complaint alleged that "Respondent announced the
profit-sharing plan, announced and granted additional life
insurance benefits , granted increased hospitalization
benefits and announced the university scholarship fund . .
. at a time when it had knowledge of the ... Petition for
Certification of Representative and for the purpose of
causing its employees to reject the Union as their
collective bargaining representative."4
'Complaint par. 11.
General Counsel argues in his brief that since May 29,
1968, Respondent had known that a second election would
be held because its own objectionable conduct had been
the basis for setting aside the results of the first election.
Despite this knowledge Respondent announced and
granted new benefits to its employees before the second
election was held and while a question concerning
representation was pending. General Counsel states that
none of the benefits granted were conceived prior to the
Union's organizational campaign and argues that the
"benefits were granted with the intent and effect of
interfering with the employees' rights as guaranteed by the
Act." As to the argument that Respondent could not
know when the second election would be held because of
the pendency of the prior unfair labor practice proceeding
which was blocking action on the representation case,
General Counsel notes that the unfair labor practices
involved were those of Respondent and that Respondent
should not have an advantage in this proceeding from its
prior unlawful conduct.
Respondent argues that decisional law has established
that the grant of benefits is not grounds for objections to
election or an unfair labor practice finding unless (1) the
benefits are granted for the purpose of interference with
employee rights or their choice of a bargaining
representative, or (2) the benefits or the announcement
thereof is timed for such a purpose. Respondent argues
that neither the grant of these benefits nor their
announcement was for proscribed reasons but rather were
engendered by the motives testified to by Company
President Rimmer. Moreover, Respondent states that "the
benefits did not occur in a critical period" and that it was
the Union which picked the time for the second election
by filing its request to proceed.
The Board has recently reaffirmed that the critical
period where a second election is required is from the date
of the first election to the date of the second. Caribe
General Electric, Inc., 175 NLRB No. 124, citing The
Singer Company, Wood Products Division, 161 NLRB
956, fn. 2.
While the grant of benefit during "the critical period"
may not lead in some cases to the finding of an unfair
labor practices or of objectionable conduct sufficient to set
aside election results,' in the circumstances of this case I
find that the grant and announcement of the profit-sharing
retirement plan, the increased insurance benefits, and the
college scholarship plan were designed to interfere with
the employees' free choice of a bargaining representative
and thus violated Section 8(a)(1) of the Act. N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405.
I "have carefully considered ... evidence in the record
which tends to indicate that Respondent had, prior to the
advent of the Union, given some thought to a grant of [a
profit-sharing plan]."' However, Rimmer's testimony
establishes that the work on the profit-sharing plan did
not start until the spring of 1968, and that as to the
scholarship program the idea of such a plan did not arise
until about the same time. Unlike the situation in Bray
Oil Company, 169 NLRB No. 150, where the employer's
retirement plan was formulated under pressure of
employee threats to seek employment elsewhere or that in
Havatampa Cigar Corporation, 175 NLRB No. 109,
where "the Union had publicized its own pension plan as
'David C Banks, et al , d/b/a Bray Oil Company, 169 NLRB No. 150,
Nalco Chemical Company, 163 NLRB 68.
'Havatampa Cigar Corporation , 175 NLRB No. 109; National Waterlift
Company, 175 NLRB No. 135
'Tonkawa Refining Co., 175 NLRB No 102.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an inducement to the employees," the evidence here
indicates that the employees were in no way involved in or
even aware of either benefit program before Respondent
announced institution of the benefits.'
Coming at a time when Respondent faced the
possibility of a second election, I find Respondent's
justification for institution of the programs at that time (a
desire to charge the endowment of the scholarship plan
and the first contribution to the profit-sharing plan to the
fiscal year ending November 30, 1968) insufficient to
overcome the inference that the grants and announcement
of benefit "were designed to further erode Union support
among the employees." All-Tronics, Inc, 175 NLRB No.
110.9
As to the increase in hospitalization benefits announced
to the employees on November 28, 1968, I shall
recommend that the allegation of the complaint relating
thereto be dismissed.10 The evidence established a long
followed company policy of absorbing increased premium
costs and of passing on to the employees increased
hospitalization benefits Further, it was the Tennessee
Hc3pital Service, rather than Respondent, which initiated
the increased hospitalization benefit and the
announcement was on the insurance carrier's letterhead,
not that of the Company
C. The Tipton-Gattis Conversation
Rex Tipton, whose 4-year period of employment with
Respondent ended after the February 11, 1969, election,
when he was discharged for dishonesty, testified to a
conversation before the election with Company Supervisor
Robert T. Gattis in which Gattis was alleged to have said,
in Tipton's words, that "if [the Union] went in, why we
would probably be fired or laid off, one, and what wasn't
would be out of a job if they got caught up and sent home
and couldn't be transferred over to another job." Tipton
explained that he had been having trouble with another
employee who had been put over him by Gattis. When
Tipton complained to Gattis about the situation, the
foreman brought up the subject of the Union. In this
connection, Tipton stated that Gattis said "they were
trying to get along, to keep from having any trouble, on
account of union trouble." Tipton further testified that
Gattis asked how he felt about voting for the Union, but
Tipton had replied that how he voted was his privilege and
he didn't think he had to tell Gattis how he felt on the
subject.
Both Tipton and Gattis testified that company policy at
the time was to move an employee to another job when
available work on his own job ran out.
Gattis denied making the remarks attributed to him by
Tipton. Rather, Gattis testified, it was Tipton who had
brought up the subject of the Union telling Gattis that it
was his experience that with a union when your job was
done, you went home. Gattis did state his agreement with
.it cannot be said that the profit-sharing plan under which an employee
with weekly wages of approximately $70 may accumulate retirement
benefits with a cash value exceeding $53,000 (C P Exh 3) is "of minimal
significance and would not be likely to interfere with the employees' free
choice." National Waterlijt Company, 175 NLRB No 135
'Beyond Rimmer 's testimony that the action was taken at that time to
charge these expenses to the Company's 1968 fiscal year, no evidence was
offered to establish that the Company would derive greater financial
advantage from placing these expenses in that fiscal year than it would
have achieved waiting until a later accounting period
"Complaint par 9
Tipton's belief. Gattis claimed it was Tipton who
mentioned that people might be fired or laid off if the
Union came in Further, Gattis testified that it had been
Tipton who had initiated the conversation by calling
Gattis over to his work station. The discussion ended with
Tipton saying he wanted no part of the Union and would
quit if the Union came into the plant.
Gattis recalled a conversation with Tipton concerning
problems the latter was having with a fellow employee,
but Gattis thought the conversation concerning the Union
had taken place at a different time In fact, Gattis stated
that he had talked to Tipton about the Union "at least a
half a dozen times " On one occasion Gattis asked each of
the 35 persons he supervised if "they would help us in the
election." Gattis did not tell Tipton or the others how
they could "help" in the election but, he testified, they
knew he was referring to the organization campaign The
conversation in dispute was the last one Gattis and Tipton
had before the election.
In evaluating the conflicting testimony offered by
Tipton and Gattis I am mindful that Tipton was
terminated for dishonesty and the record does not indicate
any challenge to the discharge. Tipton, who was to a large
extent inarticulate, "did not impress me as one likely to
have invented a [story] of this kind." Louisville Chair
Company, inc , 161 NLRB 358, 373. The unvarnished
nature of Tipton's testimony leads me to credit his version
of the conversation as against that of Gattis, who at the
time in question was carrying on a campaign against the
Union, had spoken to each of the 35 employees tinder his
supervision to solicit their vote against the Union, and had
spoken to Gattis about the Union on at least six
occasions.
Accordingly, I find, that as alleged in the complaint,"
Gattis, in violation of Section 8(a)(1) of the Act,
threatened that if the Union were successful in its
organizational campaign employees would be discharged
or sent home if work on their own jobs ran out rather
than being transferred to other work as was then the
Company's policy. Texas Electric Cooperatives. Inc , 160
NLRB 440, 459-460, enfd. in pertinent part, 398 F.2d 722,
724-725 (C A. 5).
D The Taylor-Rimmer Conversation
Employee Betty Taylor testified about a conversation
with Company President Rimmer on February 14, 1969,
after the second election. After the election Rimmer went
through the plant shaking hands with the employees. At
that time Taylor told Rimmer that she wished to talk with
him. Their conversation took place in an office at the
Company's outlet store in its old plant Taylor told
Rimmer that about 4 years before, when a different union
was attempting to organize the plant, her sister-in-law,
who worked in the company office, had come to Taylor
and said that if Taylor would give the Company union
literature and the names of those working for the union,
Taylor could have any favors she asked of the Company.
Taylor testified that she told Rimmer that she had asked
only two favors of the Company, jobs for her mother and
brother, and had been turned down on both. At this point,
Taylor testified, Rimmer said that if he had hired her
mother and brother there would have been two more for
the union and if the union ever came into the plant, he
had enough money to live on.
"Complaint pars 14 and 15.
TENNESSEE HANDBAGS
Rimmer recalled that Taylor had asked to talk with
him and in their conversation had told of her sister-in-law,
who Rimmer identified as a production clerical no longer
employed by the Company, asking Taylor for a union
card or union literature. Rimmer testified that Taylor said
she wanted her mother and brother to work for
Respondent but that he had told her he had not handled
hiring for the Company for years. Rimmer denied
mentioning the union in the conversation, denied saying
that hiring Taylor' s relatives would only be adding union
votes and denied saying that if the union came in he had
enough money to live on. Further, Rimmer testified that
Taylor had not talked about asking for favors or having
been promised favors.
I shall recommend dismissal of these allegations of the
complaint.12 While there was little to choose between
Rimmer and Taylor based on their demeanor while
testifying, I credit Rimmer's version of the conversation I
find it difficult to credit Taylor's claim that Rimmer,
immediately after a decisive victory over the Union"
would gratuitously state that he had refused employment
to suspected union adherents. Moreover , Rimmer 's alleged
statement that if the Union came in he had enough money
to live on was a non sequitor and out of character for
Rimmer, who impressed me as one who carefully weighed
his words before speaking.
IV. REPORT ON OBJECTIONS
As previously noted, the Regional Director, having
found that certain objections filed by the Union to the
February 11, 1969, election raised substantially the same
issues as were raised by the allegations of the complaint
herein, consolidated the representation and complaint
proceedings for the purposes of hearing, ruling, and
decision, and ordered that Case 10-RC-7319 be
transferred to the Board. I have found that the
Respondent in the critical period between the first and
second elections interfered with, restrained, and coerced
its employees in the exercise of their rights to
self-organization in violation of Section 8(a)(1) of the Act,
by the announcement and grant of benefits for the purpose
of inducing the employees to vote against the Union, and
by Gattis' threats to Tipton of discharge or layoff in the
event of a union victory.
I further find that Respondent, by the aforesaid
conduct, prevented the employees from freely exercising
their choice in the February 11, 1969, election.
Accordingly, I recommend that the election be set aside.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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.
"Complaint pars. 12 and 13.
"Of approximately 419 eligible voters, 139 cast valid ballots for the
Union, 224 cast ballots against the Union, and 29 cast challenged ballots
VI. THE REMEDY
1051
Having found that the Respondent has engaged in
certain unfair labor practices it will be recommended 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 record in this case, I make the following.
CONCLUSIONS OF LAW
1. Tennessee Handbags, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Leather Goods, Plastics & Novelty
Workers Union, AFL-CIO, is a labor organization within
the meaning of the Act.
3. By engaging in certain described conduct referred to
in section III, B and C, hereof, Respondent interfered
with, restrained, and coerced its employees in the exercise
of rights guaranteed to them by Section 7 of the Act, and
thereby 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 affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not committed other unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
The Respondent, Tennessee Handbags, Inc., its officers,
agents, successors, and assigns, shall-
1. Cease and desist from unlawfully granting and
announcing the grant of economic benefit for the purpose
of undermining the Union; threatening employees with
discharge or layoff in the event the employees should
choose the Union as their collective-bargaining
representative; or, in any other manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by the Act. However, nothing herein requires
Respondent to rescind benefits previously instituted.
2. Post at its Dandridge, Tennessee, plant, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
representative, shall be posted by Respondent 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
3. Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.13
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
"In the event that 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 In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein found, and
IT IS FURTHER RECOMMENDED that the election
conducted on February 11, 1969, in Case 10-RC-7319 be
set aside.
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, as amended, we hereby notify our
employees that:
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has ordered
us to post this notice and keep our word about what we
say in this notice.
WE WILL NOT threaten to discharge or lay off
employees if the Union becomes their bargaining
representative.
WE WILL NOT unlawfully grant economic benefits to
our employees for the purpose of interfering with their
rights to join or belong to a union . However , nothing in
this Order requires us to discontinue any benefits
previously given to you
You are free to become and remain members of
International Leather Goods , Plastics & Novelty Workers
Union , AFL-CIO, or any other labor organization, or to
refrain from doing so, and we won't punish you in any
way if you do.
Dated By
TENNESSEE HANDBAGS,
INC.
(Employer)
(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, 730 Peachtree
Street, NE., Atlanta, Georgia 30308, Telephone
404-526-5760.