The Lux Clock Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1955

113 N.L.R.B. 1194 (N.L.R.B. 1955)

1194 DECISIONS OE-NATIONAL LABOR RELATIONS BOARD
3. All employees of Respondent, excluding office clerical employees , -guards, su-
,pervisors , and professional employees , constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
4, International Woodworkers of America , Local 5-5, CIO, was on September 27,
1954 , and at all times thereafter has been and now is the exclusive representative of
all employees in the aforesaid appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
5. By refusing on September 27, 1954, and at all times thereafter to bargain col-,
-lectively with the Union as the exclusive representative of the employees in the afore-
said appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
6. By interfering -with, restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 ( a) (1) of theAct.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
8. Respondent has not discriminated with respect to the hire and tenure of employ-
ment of Allen Lowe.
[Recommendations omitted from publication.]
The Lux Clock Manufacturing Company, , Inc. and International
Association of Machinists, AFL. Cases Nos. 10-CA.-2069 and
10-IBC-f818. August 26, 1955
DECISION AND ORDER
STATEMENT OF THE CASES
Pursuant to a Decision and Direction of Election in Case No.
1O-RC-2818,1 an election was conducted among certain of the Em-
ployer's employees on September 17, 1954, in which a majority of
the employees voted not to be represented by the Petitioner. On Sep-
tember 21, 1954, the Petitioner timely filed objections to the election
based on an unfair labor practice charge it filed at the same time.
Upon the charge, as amended by the Petitioner (hereafter called
the Union), the General Counsel of the National Labor Relations
Board (herein called respectively the General Counsel and the Board),
by the Regional Director for the Tenth Region, issued a complaint
in Case No. 10-CA-2069, dated November 8, 1954, against the Em-
ployer , (hereafter called the Respondent), alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and
Section 2 (6) and (7) of the National Labor Relations Act, as
amended. Copies of the charges, complaint, and notice of hearing
were duly served upon the Respondent and the Union.
The complaint alleged, in substance, that the Respondent, by and
through its president, Frederick Lux, on or about September 15, 1954,
unlawfully threatened its employees that a plant expansion would be
canceled and the plant closed if they persisted in their union and
3 Not reported in printed volumes of Board-Decisions and Orders.
113 NLRB No. 117.
THE LUX CLOCK MANUFACTURING COMPANY, INC. 1195
concerted activity, and unlawfully promised its employees benefits if
they ceased such activity.
The Respondent filed an answer in Case No. 10-CA-2069, in sub-
stance, admitting the jurisdictional allegations of the complaint, but
denying that it had engaged in any unfair labor practices.
Thereafter the two cases were consolidated and all parties entered
into a stipulation setting forth an agreed statement of facts. The
stipulation provides that the parties thereby waive the right to a
hearing, Intermediate Report of a Trial Examiner, the making of
proposed findings of fact, conclusions of law, and issuance of a pro-
posed order by the Board, but reserve the right to file briefs and
present oral argument before the Board. The stipulation further
provides that the charge, amended charges, complaint, notice of hear-
ing, and order indefinitely postponing hearing in Case No. 10-CA-
2069, the report on election, objections to election, and recommendation
to the Board, and the Board's order directing hearing in Case No.
10-RC-2818, and the order consolidating Cases Nos. 10-CA-2069 and
10-RC-2818 shall constitute the entire record herein and that, upon
such record, the Board may issue a Decision and Order as though after
hearing and Intermediate Report.
On February 15, 1955, the Board approved the stipulation, made it
a part of the record herein, and transferred the cases to the Board.
Thereafter the Respondent, the Union, and the General Counsel filed
briefs and the Respondent filed a reply brief. 'Upon the basis of the
aforesaid stipulation and the entire record in the cases, and upon full
consideration of the briefs,2 the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Lux Clock Manufacturing Company, Inc., is a corporation in-
corporated under the laws of the State of Connecticut with its principal
office and place of business located at Waterbury, Connecticut, and
with plants located in the States of Connecticut and Tennessee, includ-
ing the one at Lebanon, Tennessee, involved herein, where it is engaged
in the manufacture of alarm clocks. During the 12-month period
ending October 1, 1954, which period is representative of all times
material herein, the Respondent sold finished products valued in excess
of $100,000 which were shipped from its Lebanon, Tennessee, plant to
points outside the State of Tennessee.
We find that the Respondent is engaged in commerce within the
meaning of the Act and that it will effectuate the policies of the Act
to assert jurisdiction over the Respondent 3
The Respondent 's request for oral argument is denied because , in the Board's opinion,
the record and the briefs adequately present the issues and the positions of the parties.
3 Jonesboro Grain Drying Cooperative, 110 NLRB 481.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and we find that the Union is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS
TO THE ELECTION
On September 15, 1954, the Respondent assembled the employees
of its Lebanon, Tennessee, plant and, through its president, Frederick
Lux, addressed them concerning the Union and the Board election
to be held on September 17, 1954.
The General Counsel and the Union contend that Lux's address and
subsequent remarks contained threats to close the plant if the Union
won the election and a promise that certain benefits, withheld because
of the Union's organizational activity, would be granted if the Union
lost the election-all in violation of Section 8 (a) (1) of the Act.
They also contend that the alleged threats and promises prevented a
free election, and request that it be set aside and a new election ordered.
The Respondent argues, in essence, that the speech, including the re-
lated remarks, was a presentation of facts intended to correct erroneous
information given the employees by the Union, was a good-faith ex-
pression of the Respondent's views on unions and their general impact
upon the country's economy, and was, in its entirety, a representation
of the Respondent's opinions and attitudes within the meaning of Sec-
tion 8 (c) containing no unlawful threats or promises.
The issue for decision is whether Lux's speech and related remarks
were of such nature, in the context of all the facts involved herein,
as to impose involuntary restraint on the will of the employees and so
prevented them from making a free choice in the election or forced
them to act contrary to their desires with respect to the organization
of the Union.
In the area of speechmaking the Act imposes a strict limitation
upon interference with the individual independence of an employer
if his remarks have no coercive or promissory thrust. 4 We believe
that the dividing line between an employer's exercise of its freedom of
speech right and those words and conduct intended to frustrate the
will of employees should be determined by viewing the entirety of an
employer's statements and actions. 5 We deem such a review partic-
4 Section 8 (c) of the Act provides :
The expressing of any views , argument , of opinion , or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.
5N. L. R. B. v. Enid Coy-operative Creamery Association , 169 F. 2d 986 ( C. A. 10),
wherein the court held "an employer . . . surely may tell an employee that . it
would not be beneficial for him to join a union if he makes it plain that such employee
has a free choice without fear of reprisal ." N. L. R. B. v. Western Kentucky Coal Com-
THE LUX CLOCK MANUFACTURING COMPANY, INC. 1197
ularly essential where, as here, the Employer's conduct and statements
are confined' in time and subject matter to a single incident.
In this case Lux's speech lends itself easily to summarization. The
Respondent explained its concept of the nature and operations of labor
unions and expressed its general philosophy that unions have a stulti-
fying effect upon industry. More particularly, the Respondent ex-
pressed the view that a union, as representative of its employees, would
be a blight on the growth and expansion of the Respondent's plant by
preventing effectuation of its individualized plan for operating the
plant-a project which did not contemplate a union representative
for the employees. The Respondent requested the employees to give
its plan, which had been operating for about 1 year, the opportunity
to continue, pointed out some of the benefits of the project that the
employees had already realized and would receive in the future, and
advised that some benefits, to which the workers were entitled, had
been withheld because continued recognition of employee achievement
would have been unlawful during the Union's organizational cam-
paign. Lux explained that increased benefits would result only from
the employees' own efforts and could not be "squeezed" out of the Re-
spondent by the Union if adverse business conditions continued.
The Respondent also explained that it would be obliged to bargain
with a union that represented its employees, but stated that it was not
obliged to sign a specific contract with a union if economic circum-
stances ruled against such an agreement. Lux expressed a belief that
enlightened management and employees could work more coopera-
tively absent outside interference. He told the employees that a
worker who had signed a union designation card was not thereby
obligated to vote for the Union in the Board election, and that, in
Tennessee, an employee's job did not depend upon his membership in
a union . In conclusion, the Respondent requested every employee to
vote as he felt he should, whether for or against the Union.
Where, as in this case, there is absolutely no evidence of any other
Employer conduct pertaining to the employees' union activity, the ex-
pression of such views involves no threat or promise and, manifestly,
falls within the, area of permissible free speech established in numer-
ous Board and court decisions. For example, the court of appeals
has, in a similar case, 6 stated :
We think the case of N. L. B. B. v. Virginia Electric ct Power Co.,
314 U. S. 469 ... supports the view that an employer may dis-
seminate facts within the area of dispute, may even express his
opinion of the merits of the controversy even though it involves
pany, 152 F . 2d 198 ( C. A. 6), wherein the court reversed a Board finding that portions
of a statement made by the employer violated Section 8 (1), because the record before
the court did not contain the employer 's entire statement.
6 In N. L. R. B. v. J. L. Brandeis & Sons, 145 F . 2d 556 (C A. 8)
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations; may indicate a preference for individual
dealings with employees, may state his policy with reference to
labor matters, and may express hostility to a union or the repre-
sentatives.
Indeed, the General Counsel and the Union do not claim that Lux's
speech, as an integrated whole, violated Section 8 (a) (1). They ask
instead that the Board find certain portions of Lux's remarks unlaw-
fully threatened the Respondent's employees and promised them bene-
fits. Of necessity our consideration of the speech as an entirety re-
jects such a disjointed approach to the issue posed for decision. How-
ever , even the portions of the speech taken out of context, as relied
upon by the General Counsel and the Union, are within the bounds of
the Respondent's freedom of speech rights. The General Counsel
would have the Board find that five excerpts from Lux's remarks vio-
lated Section 8 (a) (1). The Union agrees with the General Counsel
that the first 5 excerpts are unlawful and relies upon 3 others. The
excerpts are these :
ITEM 1: Up in New England we used to have some wonderful
chestnut trees. We used to have around our typical New England
green a lot of elm trees. We also used to have up in New England
a lot of textile industries. The chestnuts are all gone, the elms are
all going, and the textile industry has also moved out of that area,
due to what might be called a blight. There isn't much you can
do with a chestnut tree when it's got the blight except to cut it
down, probably you can use the lumber. There's nothing you can
do with an elm tree-they won't even let you use it for kindling
wood-because that blight will spread to other trees. You can't
do very much with any factory that is afflicted with a blight, and
the factories up in New England have all been-particularly the
textile factories-have been afflicted with the blight of unionism.
I'm talking now about the long range view and what happens to
companies.
ITEM 2: All you get for it is ,a blight on your particular
company.
ITEM 3: Further, if you get the union in, our system will not
work, and you will never have a chance to verify that what I'm
telling you is true. So, I ask you all as intelligent people, not to
blight the growth of this company. When you vote next Friday,
vote for no union.
ITEM 4: Question : Mr. Lux, is it true that if the union wins
the election, the factory will shut down?
F. Lux : Unfortunately, if I made the proper answer to that
thing-no, I'm sorry, I cannot make any comments on that par-
ticular question-it's against the law.
THE LUX CLOCK MANUFACTURING COMPANY, INC. 1199
ITEM 5: You folks have attained our required schedule-the
schedule we planned for. You folks have actually made, for the
last several days, 4M clocks per day. A performance like that,
and particularly when it occurs on the anniversary of our starting
this place, requires some recognition. I'm sorry to have to tell
you that we cannot recognize it, because your union is in the way.
It's against the law for. us to make any recognition of such things
while a union is organizing a plant. You would have had your
recognition earlier if you didn't have this organization going on.
ITEM 6: They [the Union] may try to squeeze us into a posi-
tion to pay you more money, but I'll say to you I'm not the kind
of a guy that can be squeezed-in fact, I can't be squeezed-and
I'll tell you why-because long before it's necessary to do any
squeezing I've given you folks what you rate. It's purely a mathe-
matical fact-you got it before a union.
ITEM 7: Should a union get in this plant we are obliged to
negotiate with them. We are not obliged to sign a contract with
them. . . . This year business is terrible. . . . What we can do is
nothing.
ITEM 8: You just cannot violate the laws of economics for any
length of time-it will hit you as sure as God made green apples,
exactly the same as the New England mills were hit.
The General Counsel and the Union argue that items 1 through 3
and 8 imply that the Respondent would close its plant if the Union
(the "blight") won the election and that item 4 confirms the implica-
tion. We do not so construe the words of the five excerpts. In fact, the
excerpts themselves establish quite the contrary-that the Employer
expressed the intent to continue operating its plant whatever the out-
come of the election. After referring to the "blight of unionism," Lux
said, "I 'm talking now about the long range view and what happens
to companies." In requesting the employees to vote for no union, he
asked them "not to blight the growth of the company." Lux also said,
"You just cannot violate the laws of economics for any length of time";
and "Should the union get in this plant we are obliged to negotiate
with them." [Emphasis supplied.] Each of these expressions con-
notes circumstances of the future in the event the employees selected
the Union to represent them ; I a threat to close the plant, as alleged
T Other portions of Lux's speech , which the General Counsel and the Union failed to
note, establish even more obviously the Respondent 's intention to continue operating its
plant if the employees selected the Union to represent them For example , commenting
on the employees ' increased earnings since the plant had opened, Lux said, "But you, your-
selves, by your own efforts , have raised your wages about 200/0 since you started, and
you are not finished." In mentioning the Respondent 's debt incurred for the new plant
building , he remarked , "It will take 20 years to pay it off " Lux also said , "If you want
the union please vote for it" ; and "whether a person belongs to a union or doesn't
belong to a union is all the same to me-each individual will be treated precisely the
same "
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the General Counsel and the Union, would necessarily have to pre-
clude a future involving the Union.
The Union itself takes a position on items 6 and 7 (to be treated
separately hereafter) completely inconsistent with its contention that
items 1, 2, 3, 4, and 8 constituted a threat that the Respondent would
close its plant if the Union won the election. The Union interprets
items 6 and 7 as a threat by the Respondent that it would not bargain
in good faith if the Union won the election. A refusal to bargain
in good faith after an election, as claimed by the Union, implies some
sort of continuing relationship between the Respondent and the Union
and conclusively negates an alleged threat of a plant shutdown after
the election.
The General Counsel and the Union seem to rely upon item 4 as the
strongest string in their bow of alleged threats. They claim the
Board should deem the Respondent's refusal to answer the direct
question whether the plant would be closed in the event of a Union
election victory to be equivalent to a "yes" answer. They argue that
the Respondent's reason for refusing to answer the question-that it
would be against the law-implies only a "yes" answer. We cannot
agree with such a conclusion grounded exclusively upon innuendo.
We consider applicable here, as elsewhere, the requirement that the
General Counsel establish a violation of the Act by affirmative, con-
crete evidelice. At best the General Counsel has shown only that
Lux's posture left the answer to the question in doubt; he has not
proved a threat or any form of coercion on the Respondent's part.'
The General Counsel's emphasis on innuendo cannot reasonably be
found to overshadow an explanation of Lux's answer to the effect
that he was thinking of his opinion of the long-term effect of unions-
an explanation in tune with the rest of Lux's remarks-but refrained
from giving an answer to such a loaded question because he feared
that his answer would be misconstrued.
Accordingly, and as the complaint does not even allege that the Re-
spondent engaged in any conduct-other than Lux's speech-that in-
dicated as little as an antiunion bent, we do not deem that Respond-
ent's remarks contained in the five excerpts a threat that the plant
would be closed precipitately if the Union won the election.
With respect to item 5, the General Counsel and the Union claim
that it was, in effect, a threat that benefits were being withheld from
the employees because of the Union and a promise that such benefits
would be granted if the Union lost the election. We cannot go along
8 We note in this regard a recent holding of the court of appeals ( In N. L. R. B. v.
The Sun Company of San Bernardino, California , 215 F . 2d 379 ( C. A. 9) that an employer
had not violated Section 8 (a) (1) where he assumed a verbal position almost identical
to that of the Respondent here. In that case the employer stated, "I am prohibited by
law from telling you that I will never sign a contract with the Typographical Union."
It is particularly significant that the court so held notwithstanding its findings that the
employer had otherwise violated Section 8 (a) (1) and ( 3) of the Act.
THE LUX CLOCK MANUFACTURING COMPANY, INC. 1201
with the claim that item 5 evinced some devious, unlawful design.
The meaning of the words is clear; we see no threat or promise of any
kind there. Item 5 is merely a statement of the Respondent' s position
on wages and an explanation of the Respondent's concept of its legal
obligations in the course of the Union' s organizational campaign. As
such, the statement did not violate Section 8 (a) (1).9
The Union claims that by items 6 and 7 the Respondent threatened
the employees that it would not bargain with the Union if it won the
election. As indicated above, the General Counsel does not join in
this contention. Demonstrably, the Union's argument has no merit;
within the very statements relied upon by the Union is Lux's remark :
"Should a union get into this plant we are obliged to negotiate with
them."
As Lux's speech and related remarks, either considered in entirety
or disjointedly by excising excerpts therefrom (as the General Coun-
sel and the Union suggest), was an expression of the Respondent's
views within the meaning of Section 8 (c) and did not impinge upon
the employees' right to do as they pleased without fear of retaliation
or expectation of special benefit, we shall dismiss the complaint in
Case No. 10-CA-2069 and overrule the objections to the election in
Case No. 10-RC-2818.
[The Board dismissed the complaint in Case No. 10-CA-2069, and
the objections to the conduct of the election and conduct affecting the
results of the election in Case No. 10-RC-2818.]
MEMBERS MURDOCK and PETERSON, dissenting :
In our opinion, Lux in his speech and subsequent remarks to the
employees just before the election made threats of reprisal and other
unlawful remarks to the employees in violation of Section 8 (a) (1)
of the Act, thereby preventing a free election, as a result 'of which
the election should be set aside.
We note that the majority first lays great stress on the necessity for
viewing Lux's speech in its entirety in order to determine whether
Lux made unlawful threats and other unlawful remarks, and then
inconsistently concludes that Lux's remarks were permissible free
speech on the basis of a very general and incomplete summary of the
speech which loses the true and complete import of the speech.io
The majority then points to the allegation of the General Counsel
and the Union that only certain portions of the speech were unlawful,
and contends that the majority's alleged consideration of the speech
as an entirety :rejects such a disjointed approach to the issue posed
for decision. We fully agree that the speech should be viewed in
9 Standard Coil Products, Inc., 99 NLRB 899.
10 The majority summarizes the speech in two short paragraphs . The speech , which is
attached to this opinion as an Appendix , consists of 51,2 pages of single space typing.
1202 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
its entirety. However, the fact remains that the whole consists only
of its parts, and therefore a consideration of the whole speech neces-
sarily requires an examination of its specific parts. And it is hardly
necessary that every part of the speech contain unlawful statements
in order to find that the speech as a whole was coercive. It is cer-
tainly sufficient, as will be shown below, that 8 separate portions of
the speech were coercive in nature so as to render the entire speech
coercive in the absence of any effective disavowal of the coercive
import of these 8 portions of the speech. Accordingly, as is necessary,
we shall proceed to a consideration of these eight specific portions of
the speech and such other specific portions of the speech which cast
light on the total impression conveyed by the speech.
In item 1, Lux stated that in New England the textile industry
had moved out because of the "blight of unionism," and that "You
can't do very much with any factory that is afflicted with [such] a
blight." [Emphasis supplied.] Moreover, Lux later stated in item 8
that "it [the blight of unionism] will hit you as sure as God made
green apples , exactly the same as the New England mills were hit."
[Emphasis supplied.] Thus, item 1, particularly when considered
in the light of the later statement made in item 8, contains the plain,
and not very subtle, implication that if the Union got in the Respond-
ent would close its plant because of such a "blight" in the same way
as the New England mills had closed because of the "blight of union-
ism." Clearly, therefore, item 1 of Lux's speech contained a threat
of reprisal in violation of Section 8 (a) (1).
Similarly, in the light of the unlawful threat to close the plant
because of the "blight of unionism" which was made in item 1, Lux's
statement in item 2, that "all you get for it is a blight on your particu-
lar company," also contained by implication an unlawful threat to
close the plant. [Emphasis supplied.]
In item 3, which is the last paragraph of the speech, Lux stated
"if you get the union in, our system will not work, and you will never
have a chance to verify that what I'm telling you is true." In view
of the previous unlawful threats to close the plant if the Union came
in which were made in items 1 and 2, the plain implication of this
statement is that the Respondent would close the plant if the Union
came in. Lux then stated : "So, I ask you all as intelligent people,
not to blight the growth of this company. When, you vote next
Friday, vote for no union." In view of Lux's previous threats to
close the plant because of the "blight of unionism," this admonition
"not to blight the growth of this company" can only be construed as
another threat to close the plant if the employees voted for the Union,
otherwise by now known as the "blight." We would find, therefore,
that item 3 contained unlawful threats of 'reprisal.
THE LUX CLOCK MANUFACTURING COMPANY, INC. 1203
Moreover, it is clear that the employees themselves construed these
statements as containing a threat to close the plant if the Union won
the election. Thus, the very first question of an employee after the
speech was : "Mr. Lux, is it true that if the union wins the election, the
factory will shut down?" In our opinion, this clearly indicates that
the employee had gathered from the speech that Lux intended to close
the plant if the Union won the election, and was seeking a "yes" or
"no" answer to this impression. And any doubts on this score were
quickly removed by Lux's answer to this question. Thus, Lux an-
swered : "Unfortunately if I made the proper answer to that thing-
no, I'm sorry, I cannot make any comments on that particular ques-
tion-it's against the law." [Emphasis supplied.] First, as pointed
out by the General Counsel and the Union, it would not have been
"against the law" for Lux to have answered "No" to the question, but
only for him to have answered "Yes," and therefore Lux impliedly
answered "Yes" to the question. And if there is any doubt on that
score, the first portion of Lux's answer made his position crystal clear.
"Unfortunately, if I made the proper answer to that thing," could
have only one meaning, viz, that the true answer, if given explicitly,
would be "Yes." [Emphasis supplied.] It could only be "unfortu-
nate" if the answer were "Yes" that the plant would close, and not if
the answer were "No" that it would not close. Thus, by clear implica-
tion , Lux answered "Yes" to the question, and thereby conveyed to the
employees an unlawful threat to close the plant if the Union won the
election. It is clear, therefore, contrary to the contention of the ma-
jority, that Lux did not simply refuse to answer the question or leave
the answer to the question in doubt. Instead, by his "unfortunately"
preface and his explanation that it was "against the law" to answer the
question, he clearly implied that he was answering "Yes" to the ques-
tion. We would find, therefore, that item 4 itself constituted an un-
lawful threat of reprisal.il
n In an attempt to support its position that Lux's reply to the question was not an un-
lawful threat of reprisal, the majority "notes" a recent holding of the court of appeals
in N. L. R. B. v. The Sun Company of San Bernardino, California, 215 F. 2d 379 (C. A. 9),
that an employer had not violated Section 8 (a) (1) by stating that: "I am prohibited
by law from telling you that I will never sign a contract with the Typographical Union."
However, the reason stated by the court for its decision was : "Since we fail to find in
Guthrie's statements implying that he would never deal with the Union a 'threat of
reprisal or force or promise of benefit,' we regard these statements as being within the
protection of Sec. 8 (c)." Thus, the basis for the court's decision was not that an
implied threat had not been made, but rather that the implied threat which had been
made was a threat never to deal with the union, and was therefore not a "threat of
reprisal" against employees, and consequently was protected by Section 8 (c). Clearly,
therefore, the court's legal conclusion does not apply to the situation here where there
was an implied threat to close the plant, and therefore a "threat of reprisal" against the
employees. We note, however, that the court's factual finding that an implied threat
had been made there by similar implication supports our position that an implied threat was
made here. But none of the foregoing Is to be construed as an agreement on our part
with the court's legal conclusion that an anticipatory refusal to bargain is not a violation
of Section 8 (a) (1).
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite all these clear threats to close the plant if the Union won
the election, the majority contends that Lux otherwise expressed the
intent to continue operating the plant whatever the outcome of the elec-
tion. We disagree. The first such expression, "I'm talking now about
the long range view and what happens to companies," is vague and
ambiguous, and is hardly a clear expression of intent to continue oper-
ating the plant whatever the outcome of the election. The second, an
admonition "not to blight the growth of the company." by voting for
the Union, is more consistent with the threats to close the plant if the
employees voted for the Union. The next, "You just cannot violate
the laws of economics for any length, of time," indicates that the
threats to close the plant if the Union got in would be carried out al-
most immediately. The next, "Should the union get in this plant we
are obliged to negotiate with them," was simply a statement of the
Respondent's legal obligation under the Act, but any intent to actually
perform this obligation was immediately removed by the very next
statement, in effect, that the Respondent would not sign a contract
with the Union. The next such expression reads "But you, yourselves,
by your own efforts, have raised your wages about 20% since you
started and you're not finished," thereby clearly indicating that this
could not be done with the Union. The next, that it would take 20
years to pay off the plant building, was simply part of an explanation
that the Respondent had to borrow money for the building, and the
mortgage term was 20 years. In the last such expression referred to
by the majority, Lux did state a neutral position with respect to the
Union. However, in view of all the unlawful threats to close the plant
cited above, and other coercive statements in the speech cited below,
we view such purported "neutrality" statements as merely pious pro-
nouncements which could not possibly remove the coercive effect of
all the unlawful statements made by Lux.
The majority also contends that there is some sort of inconsistency
in finding, as we would do in agreement with the Union's contentions,
that Lux in certain portions of his speech threatened to close the plant
if the Union won the election and in other portions threatened not to
bargain in good faith if the Union won the election; that the refusal
to bargain implies some sort of continuing relationship between the
Respondent and the Union and therefore negates any-threat of a plant
shutdown after the election. We fail to see any inconsistency between
a threat to close the plant and an anticipatory refusal to bargain.
The two are completely compatible and not the least bit unusual.'2
"The majority also points to the absence in the complaint of any allegation that-the
Respondent engaged in any conduct-other than Lug's speech-that indicated as little as an
antiunion bent on the part of the Respondent. In our opinion, the speech itself was
more than sufficient not only to show an antiunion bent but a carefully designed intent
to defeat the Union at the polls by unlawful threats of reprisal and unlawful anticipatory
refusals to bargain.
THE LUX CLOCK MANUFACTURING COMPANY, INC. 1205
Under other circumstances, we might agree with the majority that
a statement such as that made by Lux in item 5 was motivated by
a reasonable desire to avoid violating the Act, and was therefore not
a violation of the Act. However, in view of the unlawful threats
to close the plant which were made by Lux in other parts of his
speech, we would find that Lux's statement that the Respondent was
withholding a wage increase because of the Union was motivated by
a desire to penalize the employees for engaging in union activity, and
was therefore a violation of the Act.13
In item 6, Lux stated that "I can't be squeezed" into paying the
employees any more money by the Union, thus adopting the categorical
position that under no circumstances could the Union get any more
money for the employees. In our opinion, this statement revealed a
fixed determination not to bargain in good faith on the subject of
wages, and was therefore a violation of Section 8 (a) (1).14
In item 7, Lux stated that "We are not obliged to sign a contract"
with the Union, and "What we can do is nothing" in negotiations
with-the Union. In our opinion, these statements were tantamount
to saying that the Respondent would never sign a contract with the
Union, and were therefore violative of Section 8 (a) (1).15
As already indicated in our discussion of item 1, item 8, when
considered in the light of the statements previously made in item 1,
contains a clear threat that the Respondent would close its plant be-
cause of the Union "exactly the same as the New England mills" were
closed because of the unions, and constituted an unlawful threat of
reprisal.
In view of the foregoing, we conclude that all portions of Lux's
speech alleged to be coercive were coercive, and that in the absence of
any effective disavowal of the coercive import of these portions of
the speech, the speech viewed in its entirety was coercive.
We would find, therefore, that Lux's speech violated Section 8 (a)
(1) of the Act, and further constitutes grounds for setting aside the
election.
23 Cf. Standard Coil Products, Inc., 99 NLRB 899.
14 See United States Gypsum Company , 90 NLRB 964, 969.
is See F. W. Woolworth Co., 101 NLRB 1457, 1458. As indicated above, these two
statements clearly show that Lux's previous remark, "Should a union get into this plant
we are obliged to negotiate with them," was simply a statement of the Respondent's legal
obligation under the Act, with no intent to perform such obligation
APPENDIX
TRANSCRIPT OF TALK GIVEN BY MR . FRED Lux AT THE Lux CLOCK MFG . COMPANY
PLANT IN LEBANON , TENN . ON WEDNESDAY , SEPTEMBER 15, 1954
Last evening about-late yesterday afternoon I finished my day's work about
4:30-went home , packed a bag, and drove to LaGuardia field-about 90 miles-got
in a plane and flew down here , and went to bed about 1 o'clock-just for the purpose
of coming down here and probably rounding out your information on the pros and
cons of whether of not we want our company to operate with a union.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have just about an hour to speak to you-I 've got to beat it again , take a plane
and get back home-have a part of tomorrow to work , and I 've got to go away on
a six weeks mission Friday noon. I'm taking, actually, about 25% of my time
to come down here and tell you what this is all about-because I think it is important.
Up in New England we used to have some wonderful chestnut trees. We used
to have around our typical New England green a lot of elm trees . We also used
to have up in New England a lot of textile industries . The chestnuts are all gone,
the elms are all going, and the textile industry has also moved out of that area,
due to what might be called a blight. There isn't much you can do with a chest-
nut tree when it 's got the blight except to cut it down , probably you can use the
lumber. Theie's nothing you can do with an elm tree-they won't even let you
use it for kindling wood-because that blight will spread to other trees . You can't
do very much with any factory that is afflicted with a blight, and the factories up in
New England have all been-particularly the textile factories-have been afflicted with
the blight of unionism . I'm talking now about the long range view and what hap-
pens to companies.
Another thing I don 't believe you are fully aware of-that this matter of unionism
is big business. There are a lot of people employed by the union; they get a very,
very good day's pay for it, and they have accumulated surpluses way beyond what
our company and thousands of other companies have been able to accumulate. The
particular union that is trying to interest you people to belong to them , or to join
up with them-their national union has approximately $ 1,000 ,000 in surplus.
They're much wealthier than we are-and personally the members don't benefit very
much from that $ 1,000,000-that sum is for people who make unionism their busi-
ness to use and enjoy. What a very, very nice soft job.
They further have a great habit of making statements that are not true. If I
wanted to be a little impressive about this thing I would say that-I'll omit the pro-
fane words-simply plain lies. I have here a few of the circulars that have reached
you by the union-let's see what they have to say. I'll just take one typical one.
"Analyze these questions and answer them yourselves. These things and these
things only persuaded Mr. Lux to establish this plant in Lebanon:
#1 was the bright picture of a brand new building, paid for by the citizens
of Lebanon , by supporting a Bond issue;
#2 was the promise of low wages-Mr. Lux was assured that his company
would have hundreds of workers at his command at a miserly wage scale, and
he jumped at the chance;
A new building-rock bottom labor costs-a reservoir of employees. What could
be more attractive?"
The bulk of those things are-and I 'll again omit the profane words-lies-plain
ordinary misstatements of fact . We came down here to Lebanon because this is
the center of the market for Alarm Clocks. Shipping charges are very, very expen-
sive and they 're getting more and more so . By having our plant located here in
Lebanon we could be more competitive-we could sell more clocks and we could
serve the people who use Alarm Clocks. You don't know it but the use of Alarm
Clock, spring-powered, of the type you,make here, is going down in the United
States. It's an item that's used mostly by poor people who can't afford electric
clocks-or whose homes aren't wired for electricity-it's about the same thing.
Price to them is very, very important.
Further, before we established our plant here in Lebanon, my son and I traveled
around to about a dozen different towns in this area . Lebanon hasn 't got one thing,
insofar as its location is concerned , better than those other towns , but somehow or
other I like the people in Lebanon-I still like the people in Lebanon. I'll say to
you that I get a big thrill when I go through this plant and have a chance to have
a word or two with a lot of very, very intelligent people. I still think that you
have intelligence, and I believe that we did not make a mistake in putting our plant
here in Lebanon, primarily because I felt the people here would be better people to
work with.
Now, as to low wages. I'll say to you in all sincerity and honesty-and when I
say things to you, I'm a man of substance-if I make a mistake I can be attacked.
I can't afford to be attacked-but I 'll say to you in all honesty there are locations
within 30 miles of Waterbury, where the wages earned by the people in the plant are
less than you people are earning right here and now . I happen to have a distant
relative who is working in an organized plant-a union plant-within 15 miles of
Waterbury-and after all the promises made by the union to have those people's
wages raised-the people in that plant are earning less than you are earning here.
That's an absolute fact.
THE LUX CLOCK MANUFACTURING COMPANY, INC . 1207
Further, I think it's not cricket-I'm not adverse to any argument, or any fight
or any bargaining with anybody. I've been doing it all my life and I'll take my
chances with anyone when it comes to good square bargaining. Back here when
we first started this operation in this plant last March, believe me you and I, and
Joe, and Bill, and everyone of us were a bunch of greenhorns. We've learned a
whole lot since. That conditions at that time were bad I'll admit. I'll admit it
purely because we were trying to take a bunch of people who had never made a
mechanical product in their lite before, and have them make such an intricate prod-
uct as a clock. That it was a discouraging experience I'll have to admit. That you
had a right to be disgruntled without knowing all the facts, that is also a fact. But
I'll ask you now-aren't conditions in the plant today better by a whole lot than
they were then? The records of your daily earnings demonstrate that is so. There
are some of you people in this group who have already attained the degree of effi-
ciency, so that your earnings are as high or higher than any other plant here in
Lebanon. Now that is a fact.
I'll say to you further that it takes at the longest two years for a person on a
large number of jobs to become really proficient. You folks have not reached your
peak earnings as yet. But you, yourselves, by your own efforts, have raised your
wages about 20% since you started, and you're not finished. That's the Lux method.
We will pay every nickel a person earns and make every opportunity to earn it-
but they have to earn it. We cannot pay one nickel beyond that because we haven't
got it. We only get our money from the sale of our products. I am only your
agent . We have to sell our clocks to our customers, and when I sell a clock to a
customer, by golly, I'm selling your work. If it isn't there, you can't get it. If it is
there you're going to get it-you've just got to get it under our method of operation.
To start in organizing this plant when it is in that condition, I think was a very,
very unfair thing to do. And I'll say to you further, that this organization job started
at that time not because they wanted to organize us, but because this group here was
a source of revenue to this union. They got word that another union was trying
to organize, so they jumped the gun and got in quick-irrespective of whether it
was fair to you, or fair to the company, or.fair to anybody. What they did not want
to lose was that $350.00 a month that you fellows will pay into the union, when you
got this place organized and start paying dues, initiation fees, and all that sort of
thing. I think it's the most unfair thing-it's like actually taking milk away from a
baby.
I have already touched upon the fact that you folks' earnings have been improving-
I'm quite sure they have-it's a matter of record-and I don't need to spend-require
any defense to you on that.
There is one more factor. We have not been able to disclose our company's poli-
cies to you because some of the policies have to do with performance. Some of the
policies, had we disclosed them to you, with your relative inexperience in industry,
might have been misconstrued. We have had our plant here in Lebanon now for-
in fact, here about two weeks ago, was the anniversary. You folks have attained our
required schedule-the schedule we planned for. You folks have actually made, for
the last several days, 4M clocks per day. A performance like that, and particularly
when it occurs on the anniversary of our starting of this place, requires some recog-
nition. I'm sorry to have to tell you that we cannot recognize it, because your union
is in the way. It's against the law for us to make any recognition of such things while
a union is organizing a plant. You would have had your recognition earlier if you
didn't have this organization going on.
Should a union get in this plant we are obliged to negotiate with them. We arg
not obliged to sign a contract with them. If we have any reasonable economic
reasons for not signing a contract, we don't have to sign it. It's a case of bickering,
arguing, arguing, bickering-and I've been at this business long enough to know
what this company can do and what it can't do, and I haven't got to be reminded by
anyone what it is able to do. I know as far as our performance, last year was a
pretty good year. This year business is terrible. The profits from our operations,
between here and Waterbury-I'm not at all proud of it. What we can do is noth-
ing. What you can do for yourself helps, and you can do it.
I had a union in our plant back in 1942. They got in by a very, very small major-
ity. At the end of the year practically every one of the people who belonged to the
union resigned. Our people in Waterbury today are the highest paid people in that
town-have the highest earnings of anybody in that town, but they earn it and they
get it, and it isn 't obtained from the company by force. What you obtain by force
leads to strikes and all sorts of things. The only possible way for the company to
379288-56-vol. 113-77
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay you more money is to have you earn it. I know you can-I know it by the
progress you have made thus far, and you can keep on going. I think that the facili-
ties set up for you here make it possible to do so.
Oh-yes-I muffed something completely and I have to go back. There was a
statement that this plant was built or paid for by the people of Lebanon. I don't
know whether it says that or not, but that's my understanding of it. Let me tell you
folks that this plant was built with borrowed money on the credit of The Lux Clock
Company, and we are already starting to pay it off. We have to pay off the whole
thing. This building doesn't cost you one red cent-it doesn't cost the town one red
cent. This building, the place where you work, was built by borrowed money that
this company, our company, your company is paying off, and it will take us 20 years
to pay it off. When a person or any individual makes a reference to-make a state-
ment that isn't true-in fact, makes two statements that aren't true-how can you
believe any statement they make to you.
All right-another thing. You talk about union organization. There are 60 mil-
lion plus people-working people-here in the United States. Unions claim to have
about -15 million, and I'm going to say to you that 15 million is not a majority of the
people. They are the minority. If the thing was so darn good and so wonderful and
everything else, they wouldn't have to work so hard for over 30 years and only got 1/4
of the people that have a right to belong to a union. The other 45% have confidence
in their organization, have confidence in their Management all the way down-as well
as the organization having confidence in the people on their team-and that's the
way to operate a factory.
There's one more thing I think is rather important-and I do not know whether
or not you know it, or whether you have been told. If you get a union in this
plant you've got it, and you can't get out of it. There is nothing you can do about
it. You'll be paying tribute to their union for holding your job all your life-as
long as you work here. They don't give you any idea-never told you how if you
don't like it, you can get out-did they? They want to get you in-they want to get
you in from now on, as long as you work-you pay them tribute. Is that the Amer-
ica way of doing things? All you get for it is a blight on your particular company.
I've run factories all my life and never had a union in any of them, except for that
short period-and that short period proved that I was right. You can get more co-
operation with enlightened Management and an enlightened group of employees than
you.can with some outsider sitting in, who is only making-profanity again-a pest
of himself, just to justify his job and let you know what a big shot he is. That's all
they do really.
Further, and this is basic-unions haven't any power to make an employer do one
single thing except a strike, and it is actually a fact that the people who lose on a
strike is not the company but the poor people out there who are out of a job for Lord
knows how long. I want to have you bear in mind that your union leaders from the
International's other places, go right on getting their pay. They don't strike-they
never lose anything-they may possibly run a union and win you a couple of things-
but they don't lose any money when they ask you to go out on a strike, and you lose
it. In the Lux Clock Co. you haven't got to go out on a strike to get a raise if you
earn it.
Now, there is one more thing and I'll wind this story up. There's going to be an
election here Friday afternoon at 2:30. I would like to see every single one of you
people vote. I want to have you vote as you feel you should vote, but please vote.
I'm so afraid of.people having their policies, or whatever they voted for, lost because
of one vote. If you want the union, please vote for it. If you don't want the union,
please vote for that too.
Another thing I believe a lot of you people have been told-that if you have signed
one of the cards requesting. an election, you are obligated to vote for the union.
That is one of the lies that I've ever heard tell. You do not have to vote for the
union. If there were so, why have an election? Why have an election if you have
to vote the way the cards-I can conceive how it is possible for a person to sign a
card last March and April when things were going along pretty bumpy here. A
person has a perfect right to change their mind-they have a perfect legal right to
change their mind-that is why this ballot is secret-you can vote as you please,
whether you signed the card or not. While the union stresses the point that the vote
is secret-that I won't know how you vote-they don't know how you vote either.
That's a two-edged sword, but the way they tell it-try to keep it a secret from me.
For me it doesn't make much difference. I always play a deck of cards the way they
happen to play I love to play bridge and I'll play whatever hand I get.
THE LUX CLOCK MANUFACTURING COMPANY, INC. 1209
And another one-some of you have been told that your job depends on your be-
longing to a union. That is absolutely not so. In fact, the State of Tennessee has a
"right to work" law. The union tries to make it that way so that you have to belong
to a union to hold your job, and that's marvelous-because then they get 70 more
monthly fees. That's a wonderful trick if they get away with it, but it does not ap-
ply. Whether a person belongs to a union or doesn't belong to a union is all the same
to me-each individual will be treated precisely the same. There is no difference as
far as I'm concerned. You're all Americans the same as I am-you can do as you
please. Please be intelligent.
Most of you have been here less than a year-your earnings are improving every
day, every week they're going up. I've already mentioned this, but I'll mention it
again, just to reiterate. Have you ever heard of an industrial strike in a plant that
had no union?
I am asking you in all sincerity to give the company a chance to prove to you that
our methods of treating our people, both insofar as the working conditions they have
are concerned, and insofar as the earnings are concerned-give them a chance to
work. It takes more time than you have been here. If you do it, you're all your
own free agents, you won't be bossed around by any union's stewards, or anybody
else-you only have one person to look up to, and that is yourself. Even not to me,
even not to Joe. You have a perfect right to go to Joe, or anyone else if you have any
grievance. This place is plenty small enough-and there aren't so many people here
that Joe can't take care of your individual grievances. He can do that perfectly
lovely-he ought to be able to do it. He's one of your neighbors, he knows you much
better than I do, and that is the reason I put Joe in. I deliberately took a man who
never had one bit of industrial experience, but he did know his neighbors. I thought
that he was a man who was liked by his neighbors. I put one of your own people in
here to manage the plant for you. Give the poor guy a break-I am. Give him a
chance.
Further, if you get the union in, our system will not work, and you will never
have a chance to verify that what I'm telling you is true. So, I ask you all as intelligent
people, not to blight the growth of this company. When you vote next Friday, vote
for no union.
Now, if you have any questions, I'll be very glad to answer them.
QUES: Mr. Lux, Is it true that if the union wins the election, the factory will shut
down?
F. Lux: Unfortunately, if I made the proper answer to that thing-no I'm sorry,
I cannot make any comments on that particular question-it's against the law.
Are there any other questions? Any comments?
J. Atkinson: If there's anything you want to find out, or you're not clear about,
speak up. Don't be bashful.
QUES: If the union should come in here, do we all have to belong to it?
F. Lux: No, but if the majority here vote for a union, those who do not belong to
the union have to be treated the same as union people do-they are all treated alike.
If the plant goes out on a strike, whether or not you belong to the union, you'll have
to go out too.
QUES: The only thing is that they don't take the money out of your pay every
month.
F. Lux: No, they don't-that's right.
Oh, by the way, I just want to make this little comment. A little job that the com-
pany does is to put money into your pay checks-they take it out. They may try to
squeeze us into a position to pay you more money, but I'll say to you I'm not the kind
of a guy that can be squeezed-in fact, I can't be squeezed-and I'll tell you why-
because long before it's necessary to do any squeezing I've given you folks what you
rate. It's purely a mathematical fact-you get it before a union. As I mentioned
to you before-they want to get credit for every little iota-they've got to show some-
thing for the money you pay them. Every little grievance they go to work and make
a mountain out of a molehill. All right, you got a tummyache and want-to go home,
and the boss says stay another hour. They go see the boss and let you out. Oh, boy,
what a wonderful thing they've done. I've had it. -
QUES:
F. Lux: You certainly do, and you don't know whether your dues that you pay are
constant. It was in the paper yesterday they're going to double the dues-they're
going to double the dues of the automobile union.
I want to mention another thing that has a bearing on it-you have heard that the
people in the steel business got a raise-I think 50 per hour or 30 per hour, something
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like that-but in any event when you put the raise through they raised the price of
steel . It has gotten to a point now where we are throwing steel out and using alumi-
num. You have heard about Mr. Lewis' union . Can you take a ride today on any
train that uses coal? You do not-they use oil. Up in New England we 're taking
out coal burning furnaces, and as fast as we can get new ones we're putting in oil
burners or gas fired furnaces.
You just cannot violate the laws of economics for any length of time-it will hit
you as sure as God made green apples , exactly the same as the New England mills
were hit. They were union dominated and pretty well told the boss what to do-
even if they didn't know the first damn thing-beg your pardon , I was just being
expressive--didn't know the first darn thing about running a mill. They came in
there and tried to make big shots out of themselves , threw out their chest-see what
a wonderful thing I did for you . As a matter of fact-well-are there any other
questions?
Joe-do you want to make some comment ? Thank you folks-thanks for listening.
J. Atkinson : There are no more questions ? Well, I hope all of you have a better
understanding of the thing , and if there is no more questions I'll just comment-take
your break and in about 10 minutes we'll start back to work . Thank you much for
your attention.
Local 1976, United Brotherhood of Carpenters and Joiners of
America, AFL, its agent, Nathan Fleisher, and Los Angeles
County District Council of Carpenters 1 and Sand Door and
Plywood Co. Case No. 21-CC-189. August P26,1955
DECISION AND ORDER
On December 13, 1954, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in and were not engaging in the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, excep-
tions and briefs were filed by the General Counsel, the Charging Party,
and the Respondents, and a brief amicus was filed by the Chamber of
Commerce of the United'States. Pursuant to notice, oral argument
was held on July 7, 1955, before the Board at Washington, D. C., in
which the General Counsel, the Charging Party, and the Respondents
participated.
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 Inter-
mediate Report, the exceptions and briefs, the oral argument, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner only insofar
as they are consistent with this Decision and Order.
1. The Respondents except to the Trial Examiner's recommenda-
tion that jurisdiction should be asserted herein. The complaint alleges
that the Respondents induced and encouraged employees of Havstad
& Jensen and of other employers to engage in concerted refusals to
The name of the District Council appears as amended at the hearing.
113 NLRB No. 123.