The Borden Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 29, 1971

193 N.L.R.B. 1028 (N.L.R.B. 1971)

1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Borden Manufacturing Company, Employer-Peti-
tioner and Textile Workers Union of America
AFL-CIO-CLC. Case 11-RM-173
October 29, 1971
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Pursuant to a Stipulation for Certification upon
Consent Election executed by the parties, and
approved by the Regional Director for Region 11 of
the National Labor Relations Board on October 23,
1970, an election by secret ballot was conducted in the
above-mentioned proceeding on November 12, 1970,
under the direction and supervision of said Regional
Director. Upon the conclusion of the election, a tally
of ballots was furnished the parties, which showed
that, of approximately 191 eligible voters, 185 ballots
were cast, of which 86 were for, and 90 against, the
Union, and 9 were challenged. The challenged ballots
were sufficient in number to affect the results of the
election. Thereafter, on November 18, 1970, the
Union filed timely objections to conduct affecting the
results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation, and on January 5, 1971,
issued and served on the parties his Report on
Objections and Challenges. In his report, the Regional
Director recommended to the Board that the chal-
lenges to three ballots be sustained; that the chal-
lenges to six ballots be overruled, their ballots opened
and counted and a revised tally of ballots rendered the
Union's objections moot, a Certification of Repre-
sentative issue. He further recommended that the
Union's Objections 3, 4, 5, and 7 be overruled and, in
the event that the resolution of the challenges did not
render the remaining objections moot, a hearing be
held for the purpose of resolving the conflict in
evidence with respect to certain issues raised by
Objections 1, 2, 6, and 8 and additional allegations
which were entitled "Other Acts and Conduct" by the
Regional Director in his report.
Thereafter, on January 25, 1971, the Employer filed
timely exceptions, with a brief in support thereof, to
the Regional Director's report with respect to the
challenges of some ballots and the objections. On
March 18, 1971, the Board issued its Decision and
Direction, wherein it adopted the Regional Director's
findings, conclusions, and recommendations.
Thereafter, on March 25, 1971, the aforementioned
six challenged ballots were opened and counted. The
revised tally of ballots , copies of which were served on
the parties , disclosed that of approximately 191
eligible voters , 86 cast ballots for, and 96 against, the
Union.
On April 5, 1971, the Regional Director issued his
Supplemental Report on Objections and Challenges
and Notice of Hearing , wherein he directed that
testimony be taken before a duly designated Hearing
Officer for the purpose of resolving the issues raised
by Objections 1, 2, 6, and 8 , and by "Other Acts and
Conduct."
Pursuant to the foregoing , a hearing was held before
Robert C. Batson , Hearing Officer, at Goldsboro,
North Carolina, on April 20, 21, and 22 , 1971. All
parties appeared and were given full opportunity to
participate in the hearing, to introduce relevant
evidence bearing on the issues, to examine and cross-
examine witnesses , to argue orally on the record, and
to file briefs.
On July 27, 1971 , the Hearing Officer issued and
served on the parties his Report and Recommenda-
tions on Objections , pertinent parts of which are
attached hereto as an appendix , in which he recom-
mended that Union Objections 1, 2, 6, and 8 be
sustained , and that the election conducted on Novem-
ber 12 , 1970, be set aside and a new election
conducted . Thereafter , the Employer filed exceptions
to the Hearing Officer 's Report , with a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
The Board has considered the objections in question,
the Hearing Officer 's Report, the exceptions and brief
filed by the Employer , and the entire record in this
case , and hereby adopts the findings , conclusions, and
recommendations of the Hearing Officer.
We find , in agreement with the Hearing Officer,
that Supervisors Brock and Brown threatened em-
ployees with discharge for passing out union literature
in nonwork areas on nonworking time ; that Plant
Superintendent Funderburk promised employee La-
nier that fringe benefits would be improved if the
Union were voted out ; that in its speeches to the
employees prior to the election the Employer, in
effect , promised the employees that it would be more
generous in granting benefits if the Union were not
there . On the basis of the foregoing we conclude, in
agreement with the Hearing Officer and contrary to
our dissenting colleague, that the Employer's conduct
interfered with the laboratory conditions necessary
for a fair election. According , we shall set aside the
193 NLRB No. 151
THE BORDEN MFG. CO. 1029
election and direct that another election be conduct-
ed.
ORDER
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.
APPENDIX
It is hereby ordered that the election conducted
herein on November 12, 1970, in a unit of employees
heretofore found appropriate, be, and it hereby is, set
aside.
[Direction of Second Election i omitted from
publication.]
CHAIRMAN MILLER, dissenting:
Contrary to my colleagues, it is my view that the
Employer's preelection speeches, and letter of No-
vember 10, 1970, did not constitute a promise by the
Employer to the employees that the Employer would
give them more benefits if they voted the Union out.
The letters and speeches were in response to a union
campaign in which the Union repeatedly asserted that
unless it was retained as the employees' representa-
tive, all benefits would be lost. To this, the Employer,
in the letters at issue, repeatedly asserted that benefits
would not be lost, and that it would continue its
practice of granting improved benefits in line with
those provided by competitors. Such statements,
particularly in the context here, cannot be construed
as improper or illegal, and instead are protected under
Section 8(c) of the Act.
Moreover, I would not find that the Employer's
restrictions on employees' distribution of union
literature had any significant impact on the election,
or affected the election results, since, as the Hearing
Officer found, the employees on both sides were
permitted a wide degree of latitude in distributing the
literature, none was deterred from continuing his
union activity, and only two instances of objectiona-
ble conduct were found in this respect in a unit of
almost 200 employees.
The Hearing Officer, however, credited the testimo-
ny of one employee that Superintendent Funderburk
promised increased holidays and improved insurance
benefits if the Union were voted out. Such a promise
is clearly improper, but the impact of one such
statement during a campaign in a unit of almost 200
employees is insufficient to justify setting aside the
election.
I would certify the results.
' 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 Co, 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 Employer with the Regional Director for Region I I within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director 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
FINDINGS OF FACT
The Union's Objections 1, 2, 6, and 8 are:
Objection 1: Company supervisors threatened
discharge to employees for passing out union
literature on November 10, November 11 and
November 12, 1970.
Objection 2: On various occasions, Company
supervisors promised employees increase in fringe
benefits if they voted against the Union.
Objection 6: [The] Company in captive audience
speech made by E. B. Borden, President, offered
promises of benefits if the people voted against the
Union.
Objection 8: [The] Company, by means of a letter
dated November 10, 1970, stated that if the Union
wins the election that a strike would occur and that
their voting for the Union was an exercise in
futility. In addition to the above, the Employer
engaged in other actions and conduct which
created an atmosphere in which a free choice of a
bargaining representative was impossible or highly
improbably under the laboratory conditions the
Board requires.
In addition the Hearing Officer was directed to
consider the contents of speeches given by Personnel
Director J. Harry Muir, Jr., and President E. B.
Borden, Jr., on November 3, 9, and November 10 and
11.
In support of Objection 1, the Union presented
testimony relating to three separate instances of
supervisory interference with employees distributing
union campaign literature in nonwork areas and on
nonworking time.
Union witnesses Lawrence Ivey and Randolph Hill
testified that on the evening of November 10, at
approximately 10:22 p.m. they were standing at one
of the plant entrances near the timeclock preparing to
pass out to employees coming to work on the next
shift some union campaign literature Ivey had
obtained at the union hall previously. Second-shift
Overseer Doster Brock came out of a working area
and approached Ivey, in the presence of Hill, telling
Ivey that he could not be doing that. (Passing out the
union leaflets.) Ivey replied that he thought he had a
right to do so and proceeded toward a pay telephone
nearby where he called the union hall and ascertained
from someone there that he could give out the union
literature in nonworking areas. Ivey testified that as
he was walking toward the telephone and Brock was
walking away from he and Hill, Brock added that he
would be fired. Ivey returned from this telephone
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation and advised Hill that he had learned
that they could give out the union leaflets in
nonworking areas and that he and Hill then continued
to pass out the leaflets. Hill corroborates the events set
forth by Ivey except for the alleged comment by
Brock that Ivey would be fired. Hill stated that he did
not hear that comment allegedly made as Ivey and
Brock were walking away.
Brock testified that he did approach Ivey and Hill in
the timeclock area on that evening and advised them
that they could not pass out the union literature there.
He denies that he made any comment suggesting that
they would be fired for doing so. Brock states that he
then telephoned Personnel Director Harry Muir and
apprised him of what these employees were doing.
Muir told Brock that the employees did have a right to
pass out the Union literature in nonwork areas and
during nonworking time.3 Brock, apparently, did not
return to these employees and advise them that he had
learned they had the privilege of passing out the
literature there.
I am persuaded that this event occurred substantial-
ly as testified by Ivey, including Brock's comment
that he would or could be fired for that activity.
Under all of the circumstances, including the fact that
this statement was made as Ivey and Brock were
walking away from Hill, it is highly unlikely that Hill,
a rather aged individual, did or could hear the
comment made by Brock. The Employer contends
and the record adequately supports, that the Employ-
er did make every effort to educate its supervisors as
to the rights of the employees during the campaign
and as to what the supervisors could and could not
say to the employees. Brock knew or should have
known, that under the rules of the game, the
employees were engaging in protected activity and
had a right to distribute their union literature there.
However, even though Brock was mistaken in his
understanding of their right to do so, it had the effect
of interfering with, and restraining, the employees in
the exercise of their Section 7 rights. It is noted that
Brock made no attempt to advise the employees of his
error.
Approximately a month before the election Spin-
ning Department General Overseer Mack Brown
approached employee Judy Osborne at her work
station and said, "Judy have you been passing out
leaflets in the mill." Osborne replied, "not on the job."
Brown retorted, "I said in the mill." At that point
Osborne admitted that she had been passing out
leaflets in the mill and Brown replied, "I would advise
you not to do that anymore or I will have to send you
home."
Brown's version of this event is that he went to
Osborne's work station and asked if she had been
passing out leaflets in the mill. She replied that she
had and Brown told her that he would advise her not
to give anymore out and that she had replied, "All
right." Brown testified that it had been reported to
him that Osborne had been passing the leaflets out in
the mill.
Two or three days prior to the election Brown
observed Osborne sitting on a bench with another
employee in the timeclock area. Osborne had some
union literature in her hand at that time. Brown said,
"Judy I thought I told you you couldn't do this."
Osborne replied, "Well I know my rights." Brown
said, "Well we'll see who is right then." Brown
testified that he then proceeded to his office where he
called Personnel Director Muir and was advised that
she could give out the leaflets in smoking areas,
bathrooms, canteen areas, and the timeclock area, etc.
Brown states that he went back downstairs to tell
Osborne that she was right but did not find her. Later
that day he did see her and tell her that she was right
and could pass out the union leaflets in the timeclock
area.
Brown denies only that he told Osborne that he
would have to send her home if she continued to pass
out the leaflets.
As noted above, the record contains abundant
evidence that the Employer had taken great pains to
indoctrinate its supervisors in the rights of employee
and what they could and could not do. In my opinion
Brown, too, should have known that Osborne had a
right to pass out union leaflets in the timeclock area
and hence his purpose in telling her that she could not
do so was to interfere with and inhibit her union
activity. I am persuaded that Brown did tell Osborne,
that he would have to send her home if she continued
to pass out the leaflets. As in the case of Brock, this is
a particularly appropriate comment, particularly if
Brown honestly thought that Osborne was violating a
company rule which would warrant her discharge.
The only logical interpretation of Brown's term
"send you home" is that he would discharge her if she
continued to pass out leaflets in the mill. This clearly
constitutes a threat to discharge for engaging in
protected union activity and is, a fortiori conduct
which tends to interfere with the election.
The Union endeavored to establish disparate
treatment in that procompany employees were per-
mitted to distribute literature in these areas without
interference from supervisors whereas, the prounion
employees were not. This evidence merely establishes
that employees on both sides were permitted a wide
degree of latitude in distributing the literature and I
am persuaded that the only two instances of interfer-
3 The parties appear to agree that the timeclock area here was a
nonwork area and that these employees were on nonworking time.
THE BORDEN MFG. CO. 1031
ence were those two cited above. Osborne testified
that during the interim between the first and second
events involving Mack Brown that she had passed out
literature on three or four occasions without interfer-
ence . Therefore , I am of the opinion that no pattern of
disparate treatment has been established by this
record with respect to campaigning in nonwork areas
on nonworking time.
With respect to Objection 2 the Union adduced
testimony from employee Joyce Lanier to the effect
that on November 4, Plant Superintendent James
Funderburk came to her work station and told her
that when the Union was voted out the employees
would get benefits , such as paid holidays and hospital
insurance . With respect to the hospital insurance
comment , Funderburk allegedly said , "It's hell when
they take it out of my paycheck." According to Lanier
this conversation lasted until Spinning Overseer Mack
Brown called her away to show her a frame that had
stopped . Brown then told her that she could go back
and finish her conversation with Funderburk. It is
noted that this event occurred on the day after the
first of the plantwide speeches given by Personnel
Director Muir and President Borden wherein various
fringe benefits was the major topic.
Funderburk 's version of this event is that he was in
the Spinning Department doing some work on a
"lapped up roller" and Lanier approached him and
asked why the Company could not give a retirement
plan while the Union was in effect at Borden.
Funderburk replied that he was not in a position to
talk to her about answering questions of that type at
that time and that he , personally, could not give a
retirement plan because he didn't have the authority
to do so . Lanier continued to question Funderburk
about holidays, at which time he told her that the
Union had given up its right to bargain for paid
holidays in the contract some years before. Funder-
burk states that he felt that Lanier was trying to lead
him into making her a promise and that he told her
that he could make "no promises , no threats and no
spying ." As a part of the Company 's campaign
Funderburk states that he adopted a policy of making
himself available each day and that he tried to go
through the plant at least two or three times a day and
stop and talk to people and make himself available to
answer employees ' questions during the campaign. He
states that the Company pretty well knew the
employees who had definitely made up their minds
and there was no possibility of changing them and he
did not attempt to talk with these . He characterized
Lanier as one of that type.
Funderburk testified that he had a policy of
attempting to talk with employees daily and answer
questions they had about the Union . Yet he states that
he replied to Lanier's alleged inquiry as to why the
Company could not give a retirement plan while the
Union was in effect at Borden by stating that he could
not answer questions of that type at that time and that
he personally could not give a retirement plan as he
didn't have the authority to do so. The type of
questions Lanier allegedly was asking of Funderburk
do not appear to me to be designed to entrap him but
rather appear to be designed to obtain information.
For instance , her question as to why the Company
could not give a retirement plan with the Union in was
certainly a question which Funderburk could have
answered by simply stating that they could give one
during negotiations with the Union if the Union asked
for it. While it is not my function to substitute what I
think appropriate answers to questions should be, I
find that Funderburk's denial of these statements is
inconsistent with his asserted purpose of answering
employees' questions . I am therefore constrained to
credit Lanier's version of this conversation . While I
am virtually certain that Funderburk did not use the
word "promise" I am equally certain that he intended
to and did convey to Lanier that the fringe benefits
including retirement and hospital benefits would be
better without the Union.
In further support of this Objection, the Union
presented witness Charlie Bozeman who testified that
on the day before the election his supervisor, Card
and Frame Department Head Howard Green, came
to his work station and apologized to him for not
having had time to talk with him about his problems.
Green allegedly reminded Bozeman that the election
was coming up the next day and that he hoped that
Green would vote right, that he hoped he would vote
for the Company . Bozeman testified that Green
continued as the reason why he should support the
Company by stating that if Bozeman got in a jam and
needed $5, $10, $15, or $20 that he (Green) would
draw an order and he could get it at the office . This bit
of evidence was not submitted to the Regional
Director during his investigation . In my opinion this
fact does not bar admission of the evidence in a
Hearing on Objections providing it comes within the
scope of the Objection under consideration. In my
view , if this occurred it may constitute a promise of
benefits, i.e., the benefit of obtaining loans from the
company and hence would be within the scope of
Objection 2.
On cross-examination Bozeman stated that he had
not reported this event to anyone until the evening
before at which time he told the Union's attorney
about it. He stated that he approached the attorney
about, "his case" and wanted to find out if he had one.
He admits that during the interim he had been visited
by various union representatives and yet had never
mentioned this matter to them.
While Green was not presented by the Employer to
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deny these allegations, based upon Bozeman's de-
meanor, his testimony with respect to how he came to
proffer this bit of evidence and the utter lack of
coherent continuity in his testimony, I find it
inherently improbable that Green made such a
promise to him.
In further support of its promise of benefits
objection, the Union presented Francis VanHoy who
testified that on the day before the election she and
several other employees were in the canteen area
when Personnel Director Muir came in and comment-
ed to the canteen owner and operator, Charlie
Malpass, that "after all this is over I want to see some
10 cent drinks in here. I am tired of paying 15 cents."
Muir denied having made any such comments to
Malpass.
Malpass, when called as a witness by the Employer,
testified that he leased the canteen rights from the
Employer for $15 per week; that he made all
purchases and that he alone determined the prices
that he would charge for his merchandise. Malpass
further corroborated Muir in that Muir had made any
such comment to him.
VanHoy identified several other employees as
having been present at this time, one of whom was
Eunice Faircloth, who was subsequently called by the
Employer as a witness. Neither the Petitioner-Em-
ployer nor the Union questioned Faircloth concern-
ing this event. I am impressed with VanHoy's
demeanor and direct manner of testifying and
conclude that Muir likely made some comment
concerning the pnce of the drinks. I cannot construe
this, as a promise of benefits for rejection of the
Union. Assuming that Muir made the statement as
alleged by VanHoy, under all the circumstances here
it amounts to no more than the expression of a desire
on the part of Muir that the price of the drinks be
reduced to a dime. This is not even, allegedly,
conditioned upon which way the election went.
The Union adduced evidence relating to several
other instances of alleged interference under its Other
Acts and Conduct objection. Judy Osborne testified
that approximately a month before the election,
Supervisor Mack Brown approached her with a form
designed for withdrawal from the Union. Brown
allegedly approached her and stated that he had heard
that she wanted one of those. Osborne told Brown
that she did not want one and asked where he had
heard that she wanted a form. A few days later, after
she had been off from work due to sickness, Osborne
went to Brown's office and told him that she wanted
the form to get out of the Union. Brown gave her the
form without comment which she signed and left in
the office.
On cross-examination Osborne stated that she was
not sure of the date Brown had approached her with
the form but corrolated it to a period of time which
she had worked between absences due to sickness. She
stated that she had returned to work from a few days
absence due to sickness when he approached her and
that she rejected the proferred withdrawal form and
was absent for a few more days. When she returned
from the second absence she went to the office and
signed the withdrawal form.
This testimony is in accord with that of Mack
Brown. Brown states that he had been told by another
employee that Osborne wanted to withdraw from the
Union and based upon that, he approached her with
the withdrawal form. Brown also places the date of
this event as being between two periods of absences
by Osborne due to sickness. The Employer subnutted
into evidence the attendance record of Osborne which
shows inter alia that she was absent from work due to
sickness from September 21 through September 25,
returning to work on September 28, a Monday. It
further shows that Osborne was absent from Septem-
ber 29 through October 2, returning to work on
Monday, October 5. The withdrawal form which
Osborne executed in Brown's office is dated October
5, 1970.
Osborne testified that it was during this second
absence that she talked with a fellow employee on the
telephone and was persuaded to withdraw from the
Union. As noted above, she executed the withdrawal
form on October 5, and the following date she
rejoined the Union, although she did not sign another
checkoff authorization.
Osborne's recollection as to the precise dates was
understandably vague and her correlation of the date
with periods of absences assisted in ascertaining the
date this event occurred. Osborne's attendance record
reflects that after she returned to work on October 5,
she was not absent again until October 30. Clearly, the
proffer of the withdrawal card by Brown occurred on
September 28, the only day Osborne worked between
the two periods of absence.
Clearly such a proffer of a withdrawal card,
although made in good faith by Brown, and upon his
information that Osborne wanted out of the Union, is
still a form of solicitation. However, it appears that it
occurred prior to the filing of the petition in this
matter, on September 30, 1970.
Osborne related another event occurring the day
before the election. She states that she was wearing a
union T-shirt with the letters TWA imprinted across
the front. Osborne started through an overhead
passageway which is known to the employees as the
"tunnel," which is in reality an enclosed walkway
joining two sections of the plant across the street. As
Osborne entered the "tunnel," she states that she
encountered two Supervisors, Thaddeus Crawford
and John Bob Kennedy. As she approached them,
THE BORDEN MFG. CO. 1033
Crawford stated, "I don't like that damn shirt you got
on, but I like what's in it." Osborne states that she
started to reply and Crawford said, "Wait-wait, now
let's not get dirty."
Crawford substantially corroborates this version of
the event stating that he told her that the shirt might
not be the right one or the right thing, but "it sure
looks good on you." He states that Osborne laughed
and made some comment which he could not hear
because it was obliterated by the noise of the opening
electric doors as she proceeded on her way into the
other plant. By either version of this event, it is clear
that the object of Crawford's remarks to Osborne was
to express appreciation for Osborne's appearance in
the shirt and may be considered a mild form of
flirtation. In any event, it is my opinion that his
remark that he did not like the shirt, unaccompanied
by anything else, would not constitute objectionable
conduct.
The Hearing Officer was directed to consider the
content of four speeches given by Personnel Director
Muir and President Borden, along with a letter dated
November 10, which the Employer sent to all
employees, in the light of other evidence adduced at
the hearing. The thrust of the Employer's election
campaign obviously revolved around four speeches
beginning on November 3, 1970, given by Personnel
Director Muir and President Borden. According to
Muir, this speech was delivered twice on the night of
November 3, and three times on November 4, to 25 to
30 employees at a time.
In the first speech delivered by Muir, which is
Appendix A of the Regional Director's Report on
Objections and Challenged Ballots, dated January 5,
1971, Muir reviewed the period of time the Union had
been representing the employees and advised the
employees that during that period of time, not one
material gain had been made. He asserted that the
Company had always given wage increases in line
with the carded yard industry, both before and after
the Union got in, and would continue to do so. Muir
contended that at the time the Company filed the
petition in this case, the Union had only 25 percent of
the employees as members and observed that only
then did the Union send their "high-salaried organiz-
er" to Goldsboro. He observed at that point that the
Company cannot "knock out" the Union, but the
employees could. He then proceeded to advise the
employees that in 1954 the union had bargained away
the right to bargain for paid holidays in return for
keeping the checkoff. He stated that the Union
charges that they would lose certain rights such as
seniority, job posting rights, etc., was without merit.
He opined that this was not true, that the Company
would take away none of these rights as it was not a
good practice to do so. He further observed that the
Company had always granted wage increases when
the pattern was set in the carded yarn industry and
that the Union had never obtained a wage increase or
anything else for the employees. He pointed out that
the Union could guarantee absolutely nothing inas-
much as it had "no jobs to offer, no security, no fringe
benefits, no nothing except the possibility of strike,
strife, and turmoil." He then asked the employees,
"Don't you honestly believe that the Company can do
more for you than the Union? After 24 years, don't
you think it is time to make a change for the better?"
He stated, "You have everything to gain and nothing
to lose by voting it out," and continued to seek their
agreement that the Company is in a better position of
knowing your needs than an outsider. He then
advised the employees as to salaries of various union
representatives and asserted that that was the real
reason the Union wanted to keep the Union in there.
There was a question and answer period after the
speech in which employees inquired about, among
other things, hospital and health insurance plans,
pension and retirement benefits, etc., at which time
Muir advised them that he could make no promises
because of the Board election notices that were posted
throughout the plant. In this or in later speeches, he
encouraged the employees to give the Company a
year to do for them the things the Union had not done
in 24 years.
Muir's second speech was delivered to all employees
in two or three different sections around November 9.
He reiterated much of what he had stated in his first
speech and observed that the Union had no power to
protect their jobs, their earnings, their fringe benefits
or anything else; only the Company could do that. He
then stated that after 24 years the Union had done
nothing and could guarantee absolutely nothing other
than the possibility of strike, strife, and turmoil.
Muir's third speech was delivered on November 10
and 11, and it constituted the introduction of
President Borden. Muir asked how many times had
the Union actually stood in the way of the employees
getting more in the way of progress of the Company?
He asked the employees to think of the things that
they might have been able to get which the Union
swapped for the Union's demands to line union
pockets instead of helping employees. He then
pointed out that the Union could make all sorts of
wild promises but it could not guarantee them a thing.
"While the Company has every intention of living up
to its legal and moral obligations, the law does not
require the Company to give into anything the Union
might demand where the Company in good faith does
not want to give into such demands." He then
observed that the only thing the Union could do to try
to get its demands would be to call a strike. Muir then
introduced President Borden.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borden reviewed his own history with the Company
and observed that questions in most of the minds of
the employees who had not already rejected the
Union was, "what will happen to us if the Union is
voted out at Bordens?" He then discussed six areas in
which questions had been asked and commented on
the Company's intention with respect to them. As to
seniority he stated that with or without a Union it
would be virtually impossible and completely unfair
to abandon the seniority practice and it was the
Company's belief that the longer a person remained
with the Company the more he should be regarded
with first choice in job assignments. As to favoritism,
Borden observed that he strongly disapproved of any
favoritism being shown by any persons and would
personally take immediate action to correct it when it
might exist. On wages Borden observed that it had
always been the policy of the Company to grant
general wage increases comparable to those in the
textile industry and that in his memory there had
never been a wage decrease. As to life insurance,
Borden stated that the Company provided each
employee with fully paid life insurance and that there
were no kickbacks to the Company on an insurance
policy of any kind. On pension plans, hospital
insurance , and paid holidays he observed that he
could not understand why the Union kept pushing
those items as something the Company should be
ashamed of since the Union had been there for 24
years. He then observed that, "before an election we
are not allowed by law to tell you what we might do
without a Union. But it stands to reason that we must
remain competitive and that we have to provide the
same or better fringe benefits at this plant if we are to
keep good people working." He stated, "I believe you
would see quite a difference if we did not have a
Union to impede our progress here." Borden then
proceeded to discuss grievances and the way he felt
about fairness in treatment of the employees. He
stated that the open door policy they had had for
years would be continued and observed; that as a
matter of fact 90 percent of the grievances had been
channeled through management rather than the
Union for the past few years. In closing he asked the
employees to consider the shameful lack of represent-
ation that they had gotten in over 24 years at great
expense in dues money and, "I am asking you to give
your Company a chance for this next year by marking
your ballot, "NO" on Thursday. Remember that the
ballots will be signed and the vote will be conducted
in complete secrecy. You can still vote no whether you
signed a Union card or not." His closing sentence
was, "Please give us this next year to do what the
Union has not done in the 24 years."
After each speech an opportunity was given for
questions, during which time questions were asked,
particularly with regard to pension plans and insur-
ance at which time Borden and the testimony reveals
Muir repeatedly turned to the Board's official election
notice which was posted in the area and pointed to
that section which prohibits the making of promises
during an election campaign, stating that the law
would not allow them to make promises.
The letter distributed to all employees by the
Employer on November 10, and attached to the
Regional Director's Report on Objections as Appen-
dix F, is essentially a continuation of the theme that
had been established by the speeches. Here, the
Employer again remarks that the law allows an
Employer an absolute right to stand firm and not give
in to Union demands just because the Union
threatens to strike.
At the hearing the Employer urged that the
Employer's comments in these speeches and letter
were protected by Section 8(c) of the Act.4 While
Section 8(c) is not applicable to representation cases,
the first amendment to the Federal constitution
guaranting freedom of speech is. Dal-Tex Optical
Company, Inc., 137 NLRB 1789. The Board observed
in Dal-Tex that Congress specifically limited Section
8(c) to the adversary proceedings involved in unfair
labor practice cases and it has no application to
representation cases. In assessing the interplay of
Section 8(c) and the first amendment, the Board has
observed that conduct which may interfere with the
laboratory conditions for a fair election is considera-
bly more restrictive than the test of conduct which
amounts to interference, restraint, or coercion which
violates Section 8(a)(1) of the Act. See Pace, Inc., 167
NLRB 1089.
It would serve no useful purpose here to recite the
entire text of the speeches again. They are attached to
the Regional Director's Report on Objections dated
January 5, 1971, as Appendixes A through D and F. I
have read the speeches and the letter carefully and I
am constrained to conclude that in the light of other
evidence adduced at the hearing they constitute an
unequivocal promise by the Employer to the employ-
ees that the Employer will give to the employees more
benefits if they vote the Union out.
The Employer emphasized the fact that the Union
could give the employees nothing; that all benefits are
derived from the Employer. The central theme of the
Employer, then, was to express to the employees that
if the Union were not there, the Employer would be
4 Sec . 8(c) reads as follows . "The expressing of any views , argument , or labor practice under any of the provisions of this Act, if such expression
opinion , or the written dissemination thereof , whether in written , punted , contains no threat of reprisal or force or promise of benefit "
graphic , or visual form , shall not constitute or be evidence of an unfair
THE BORDEN MFG. CO. 1035
more generous in granting the benefits they were
inquiring about. As noted above, this clearly consti-
tutes a promise of substantial benefits for rejection of
the union and a fortiori a threat that those benefits will
not be given if the Union was retained as the
bargaining agent.
In my opinion, these unequivocal promises of
benefits made in the speeches and the letter had a
substantial impact on the results of the election and
warrants setting aside the election.
CONCLUSIONS AND
RECOMMENDATIONS
The Board and courts have often restated the
premise that elections must take place under laborato-
ry conditions to enable employees to freely express
their views. N. L. R. B. v. Houston Chronical Publishing
Co., 300 F.2d 273 (C.A. 5, 1962). While laboratory
conditions for an election must be maintained, the
Board considers the facts of each case to determine
whether the laboratory conditions have been
breached.
As to Objection 1, I found that supervisors Brock
and Brown threatened employees with discharge for
passing out union literature in nonwork areas on
nonworking time. It is immaterial here that Brock and
Brown were laboring under the impression that the
employees were violating a company rule, as they
were in fact engaging in protected union activity. The
fact that Brown subsequently advised Osborne that he
had been wrong, does not remove the element of
interference it created.
It is unnecessary to consider here whether or not
these two instances of objectionable conduct standing
alone would warrant setting aside the election, in view
of the other findings herein.
With respect to Objection 2, I have found that Plant
Superintendent Funderburk promised employee La-
nier that fringe benefits would be improved if the
Union were voted out. This alone may not be
sufficient to warrant setting aside the election. The
gravamen of the Employer's objectionable conduct,
in my opinion , rests on the unequivocal promises of
benefits it made to the employees in the speeches and
the letter. This is clearly not protected under Section
8(c) or the first amendment to the Federal constitu-
tion.
Having made findings of fact and conclusions based
upon all credible evidence in the record, I conclude
and find that the Union's Objections 1, 2, 6, and 8 are
sufficient to raise substantial and material issues
affecting the results of the election. Accordingly, I
recommend to the Board that Objections 1, 2, 6, and 8
be sustained and that the election conducted on
November 12, 1970, be set aside and a new election
ordered.