Tilton Tanning Corp.

National Labor Relations Board - Board Decisions

May 29, 1967

164 N.L.R.B. 1168 (N.L.R.B. 1967)

1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tilton Tanning Corp. and Amalgamated Meat
Cutters & Butcher Workmen of North
America, AFL-CIO, Allied Local 128. Cases
1-CA-5589 and 1-RC-9008.
May 29,1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 24, 1967, Trial Examiner C. W.
Whittemore issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
and recommended that such allegations of the
complaint be dismissed. In addition, the Trial
Examiner found no merit in objections to the
election in Case 1-RC-9008, recommended that
these objections be overruled and severed from Case
1-CA-5589, and that it revert to the Regional
Director for Region 1 for his disposition. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief, the
Respondent filed cross-exceptions, and the General
Counsel filed an answering brief to the Respondent's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, the
cross-exceptions, and the answering brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and
modifications:
1. We agree with the Trial Examiner that the
Respondent did not violate Section 8(a)(5) of the Act
by refusing to recognize and bargain with the
Union. The Trial Examiner found, and the record
' Member Brown also disagrees with the Trial Examiner's
finding that the preelection campaign literature distributed by
Respondent was not in violation of Sec. 8(a)(1) of the Act. He
agrees with the General Counsel's contention that this literature
constitutes `veiled threats that with a union it would be costly for
employees to process grievances ; that the plant might close if the
Union negotiated `high rates', and that employees would be
sustains such finding, that the General Counsel
failed to prove that the Union represented a majority
of the employees in an appropriate unit when it first
requested recognition and bargaining, or at any time
thereafter.
2. The Trial Examiner found that the Respondent
did not violate Section 8(a)(1) of the Act by certain
acts of interrogation, by statements made by
supervisors, and by ,the distribution of certain
campaign literature. The Trial Examiner found that
Plant Manager Colby questioned employees
Robinson and Buczynski as to their attendance at a
union meeting and then asked them how they liked
the Union, that Foreman Polidori had remarked to
employee Robinson that "I feel sorry for you girls if
the union gets in" and ". . . if the union doesn't get
in, [Respondent] will be very generous" and that
Foreman Stetson had stated to employee O'Leary
that ". . . [the Union] is going to hurt you," and "if
the union doesn't get in, you are going to get more
money anyway." He nevertheless concluded that
Colby's interrogation of Robinson was too trivial to
warrant a finding that it was coercive, and that the
remarks by Polidori and Stetson, uttered in the
context of the heat of an election campaign, were too
vague and ambiguous to be interpreted as threats
and promises and, furthermore, since only 2 or 3 of
90 or more employees were involved in the incidents,
the acts were too isolated to reach the stature of
violations of the Act. We find merit in the General
Counsel's exceptions to these findings.
While it is true that the incidents occurred during
the heat of an election campaign, it is also true that
they occurred against a background of employer
opposition to union activity. If anything,
interrogation of employees as to union activities in
the course of an election campaign would be more
likely to have a chilling effect on their union
activities. Nor can we consider them of a trivial and
relatively isolated nature and without any impact on
the employees' selection of a bargaining
representative particularly when it is noted that the
Union lost the election by a margin of only three
votes. As for the remarks of Polidori and Stetson,
they could readily be understood as promising
higher wages if the Union were defeated, but that the
employees stood to suffer economic reprisals if the
Union were successful. We are of the opinion, and
find, that Colby's interrogation and Polidori's and
Stetson's remarks tended to coerce employees in the
exercise of their Section 7 rights and constitute
violations of Section 8(a)(1) of the Act.'
subjected to loss of preexisting benefits " In addition , he notes
that the literature was distributed in a context of employer
hostility to union organization For these reasons, he would find
that literature distributed by Respondent to the employees
interfered with and coerced employees in the exercise of their
statutory rights and thereby violated Sec. 8(a)(1) of the Act.
164 NLRB No. 155
TILTON TANNING CORP. 1169
3. The Trial Examiner found, and we agree, that
the nature of the questions asked by Respondent's
General Manager Porreca of employees in the
course of Respondent's preparation of its defenses
in this hearing went beyond permissible
interrogation, and under the principles of Johnnie's
Poultry 2 were violative of Section 8(a)(1) of the Act.
However, in finding the violation, we do not in the
circumstances of this case rely on the fact that
interrogation here was by a representative of
management rather than by an attorney. We note
that General Manager Porreca was not involved in
any of the incidents of interrogations or threats and
promises, and that no representative of management
who was so involved was present at this
interrogation.3
4. We have found that the Respondent engaged in
violations of Section 8(a)(1) of the Act by
interrogations, threats, and promises of benefits.
These incidents occurred after the filing of the
petition and before the election was held in Case
1-RC-9008. Since it is clear that the above incidents
had an effect on the election, we find merit in the
Union's objections and shall set aside the election
conducted on July 25, 1966, in Case 1-RC-9008, and
direct that a new election be held by the Regional
Director for Region 1.
CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's
Conclusions of Law, except for paragraph 2, which
we hereby change to read as follows:
"2. By interrogating employees in a coercive
manner , by promising higher wages if the Union was
defeated, and by threatening economic reversals if
the Union was successful, the Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Tilton Tanning Corp., Tilton, New Hampshire, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with loss of
benefits and closing the plant if they select the
Union to represent them as their collective-
bargaining representative.
(b) Promising benefits to employees conditional
upon their rejection of the Union as their collective-
bargaining representative.
(c) Coercively interrogating or interviewing its
employees in regard to their union membership,
activities, or sympathies, or in regard to testimony
which they might be called upon to give in any Board
proceeding.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Post at its plant in Tilton, New Hampshire,
copies of the attached notice marked "Appendix."4
Copies of said notice, to be furnished by the
Regional Director for Region 1, after being duly
signed by an authorized representative of the
Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify said Regional Director, in writing,
within 10 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that allegations of the
complaint as to unfair labor practices other than
those specifically found herein be, and they hereby
are, dismissed.
IT IS FURTHER ORDERED that the election in Case
1-RC-9008, held July 25, 1966, be, and it hereby is,
set aside, and that Case 1-RC-9008 be, and it
hereby is, remanded to the Regional Director for
Region 1 for the purpose of conducting a new
election at such time as he deems that
circumstances permit the free choice of a bargaining
representative.
[Text of Direction of Second Election 5 omitted
from publication.]
2 146 NLRB 770.
3 Cf. N L.R.B. v. Neuhoff Brothers Packers, Inc, 375 F.2d 372
(C.A. 5), enfg 151 NLRB 916
4 In the event that this Order is enforced by a decree of a
United States Court of Appeals , there shall be substituted for the
words "a Decision and Order " the words "a Decree of the United
States Court of Appeals Enforcing an Order "
5 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 1 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 comply with this requirement shall be
grounds for setting aside the election whenever proper objections
are filed Excelsior Underwear Inc., 156 NLRB 1236.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
WE WILL NOT threaten our employees with
loss of benefits and closing the plant if they
select Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO, Allied
Local 128 , as their bargaining representative.
WE WILL NOT promise our employees
benefits if they reject Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO, Allied Local 128, as their bargaining
representative.
WE WILL NOT coercively interrogate or
interview our employees in regard to their union
membership , activities , or sympathies, or in
regard to the testimony they might be called
upon to give in any Board proceeding.
WE WILL NOT, in any like or related manner,
interfere with, restrain , or coerce our employees
in the exercise of their rights guaranteed in
Section 7 of the Act.
All our employees are free to become or remain
members of the above-named Union , or any other
union , and they are also free to refrain from joining
any union , except to the extent that such rights may
be affected by the provisos in Section 8(a)(3) of the
Act.
TILTON TANNING CORP.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 20th Floor, John F. Kennedy Federal
Building, Cambridge and New Sudbury Streets,
Boston, Massachusetts 02203, Telephone 223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
C. W. WHITTEMORE, Trial Examiner: The above-
numbered cases were consolidated by General Counsel on
October 14, 1966. The RC case was initiated by the above-
named Union upon its filing with the National Labor
Relations Board, on May 31, 1966, a petition for
certification of representatives covering an appropriate
unit of the above-named Company's employees. A consent
election was held by the Board on July 25, 1966. The tally
of ballots showed an equal number of votes cast for and
against the Union, with three challenged ballots. The
Union filed timely objections, alleging several acts on the
part of the Employer which, it claimed, interfered with the
freedom of the election.
On September 7, 1966, the Regional Director for Region
1 issued his report on objections and challenges. As to the
objections, he stated that the issues raised by them were
identical to certain allegations in a charge of unfair labor
practices already filed by the Union, and upon which he
had determined to issue a complaint. As to the challenged
ballots, he found that each of the three votes had been cast
by an eligible employee, and recommended they be
opened and, if the revised tally showed a majority vote for
the Union, a certification be issued.
The CA case was initiated by a charge filed by the same
Union on August 1, 1966, and referred to briefly above.
On September 30, 1966, the Board issued an order
adopting the Regional Director's recommendations, and
directed that to resolve the issues raised by the objections
a hearing be held, and that it be consolidated with any
hearing in the CA case.
Pursuant to said order consolidation was effected on
October 14, and the complaint and notice of hearing were
issued on the same day. As allegations of unfair labor
practices in violation of Section 8(a)(1) of the National Labor
Relations Act, as amended, the complaint raises issues
identical to those of certain of the Union's objections. The
complaint also alleges that since on or about May 27, 1966,
the Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) of the Act.
The Respondent duly filed its answer, in which it denied
the commission of the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Tilton, New
Hampshire, on November 15 and 16, 1966. At the hearing
all parties were represented and participated, and were
afforded full opportunity to adduce evidence, examine and
cross-examine witnesses, present oral argument, and file
briefs. Briefs have been received from General Counsel
and the Respondent.
Upon the entire record in the cases, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Tilton Tanning Corp. is a New York corporation, with its
principal office and place of business in Tilton, New
Hampshire, where it is engaged in the manufacture, sale,
and distribution of leather products. It annually purchases
and has shipped to its Tilton plant from points outside the
State of New Hampshire raw materials valued at more
than $50,000. It also annually ships from said plant to
points outside the same State leather products valued at
more than $50,000.
The complaint alleges, the answer admits, and it is here
found, that the Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Allied Local 128, is a labor
organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The basic issues raised by the General Counsel's
complaint and the Union's objections are whether: (1) The
TILTON TANNING CORP. 1171
Respondent, both before and after the election of July 25,
1966, engaged in conduct violating Section 8(a)(1) of the
Act; (2) on May 27, 1966, when it requested recognition
and bargaining, the Union had been designated as their
representative by a majority of employees in an
appropriate unit; and (3) the Respondent, in failing to
respond to the request, refused to recognize and bargain
with the Union and was motivated by a good-faith doubt as
to the Union's majority status.
B. Refusal-to-Bargain Issue
1. Appropriate unit
The complaint alleges, the answer admits, at the
opening of the hearing the parties so stipulated , and it is
here found that a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act consists of: All production and maintenance
employees of the Respondent employed at its Tilton plant,
exclusive of office clerical employees , watchmen , guards,
professional employees , and all supervisors as defined in
Section 2 (11) of the Act.
2. Majority status
A basic factor in any 8(a)(5) case is competent evidence
that the claiming labor organization represents a majority
of employees in an appropriate unit on the critical date or
dates when the demand for recognition and bargaining is
made or continues.
On May 27, 1966, a union representative wrote to the
Respondent, stating that it had "been designated by the
overwhelming majority of your employees as their
collective bargaining agent," and that "we desire to meet
with you to arrange collective bargaining terms and
agreements for these employees." Although the
Respondent did not reply to this demand, at the hearing it
conceded that it had duly received the Union's letter.
Thus, as General Counsel contends, it is found that a valid
claim of majority status and a request to bargain was made
on May 27, and, furthermore, that this is the initial critical
date upon which the majority must be proven.
At the hearing General Counsel placed in evidence,
most of them without objection, 58 union authorization
cards, 47 of which bear signature dates on or before
May 27, 1966. Also in evidence is a list of employees in the
appropriate unit who were on the payroll as of May 27. The
list has a total of 90 names.
Since 46 is a mathematical majority of 90, it would
appear at first glance that General Counsel, having
produced 47 authentic cards and a list of 90 names, had
proven a valid majority. In his brief General Counsel also
contends that the Union had a majority because he had
introduced 47 cards.
I have considered it necessary to take more than a first
glance at the documents. More careful examination
supports the claim of the Respondent, in its brief, that only
43 cards bear signatures of employees on the May 27
payroll, three short of a majority. i
It is therefore concluded and found that on May 27,
1966, which General Counsel at the hearing called the
"crucial date," the Union did not represent a majority of
the employees in the appropriate unit. It follows that there
could have been and in fact was no unlawful refusal to
bargain on that date.
General Counsel also argues the theory of "continuing
demand," citing American Compressed Steel Corporation,
146 NLRB 1463, and in his brief points to the fact that he
also placed in evidence 11 authorization cards signed after
May 27, 1966. These 11 cards bear dates of signature
between June 16 and 30, 1966, inclusive. The names of 10
of these 11 cards appear on the May 27 payroll.
If the May 27 payroll were the appropriate list to be used
in determining the majority question after that date, it
would appear that these 10 additional cards, added to the
43 noted above, would make a total of 53, or more than the
required majority figure of 46.
I am not convinced, however, that the payroll list of
May 27, the date upon which the original demand was
made, is to be considered as remaining, in perpetuity, as
the appropriate list.
That normal employee turnover existed at this plant is
indicated by a document introduced into evidence by the
Respondent, showing that at least 5 employees,2 whose
cards were included in the count of 43 and were valid as of
May 27, actually left their employment between May 30
and June 17, inclusive. The record does not reveal,
however, the extent of additions, if any, of new hires after
May 27.
Assuming the merit of the "continuing demand" theory,
I am not aware that General Counsel, merely by urging it,
is relieved of the burden of proving that on some specific
date the Union in fact represented a majority of unit
employees then on the payroll. It is not my understanding
that at any time the burden shifts to the Respondent to
show lack of majority, or to me to speculate on the
probabilities of majority.
General Counsel offered no payroll in evidence other
than that of May 27, 1966. And only by speculation does it
appear possible to infer that upon any date, thereafter, the
Union actually attained majority status.3
In short, I conclude and find that General Counsel has
not sustained the allegation of the complaint to the effect
that on May 27, 1966, or at any time thereafter, the Union
represented a majority of the employees in an appropriate
unit.
It follows, and is therefore concluded, that the
Respondent has not refused to bargain in violation of
Section 8(a)(5) of the Act.
I The names of card signers Frank C Wiggin (G C Exh. 2ww),
Ronald W Durgin (G C Exh 2xx), and Frank Burbank, Jr (G C
Exh 211), do not appear on the May 27 payroll list According to
documents later placed in evidence by the Respondent, without
objection by General Counsel, Wiggin left the Company on
January 21, 1966, Durgin on December 13, 1965, and Burbank on
February 8, 1966 And at the hearing it was conceded by General
Counsel that Rita L Marcoux (G C Exh 2g) left the Company's
employment on May 23
2 L. R Homo, P R. Kent , A H Starkweather, G White, and T
G White
3 It is true that the Respondent itself introduced into evidence a
document, to which General Counsel objected on the grounds of
irrelevance, which purports to be a list of employees still working
for the Company on November 3, 1966, and who were on the
election eligibility list of June 25, 1966, as well as of employees
who had ceased employment since compilation of the latter list It
also totals 90 names, although differing in identities from the list
of May 27 Checking valid cards signed on or before June 25
against this list reveals a total of 44, again short of a majority.
298-668 0-69-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Interference, Restraint, and Coercion Issue
1. The allegations
The original complaint alleges that during the period
between the filing of the certification petition and the
election: (a) Plant Manager Colby interrogated employees
concerning their union activities and adherence; (b) Super-
visors Polidori and Stetson promised benefits and
threatened loss of employment benefits to discourage
union adherence; and (c) by means of letters and cartoons
mailed to employees the Respondent threatened "adverse
economic consequences" if employees voted for the
Union.
During the hearing General Counsel amended the
complaint to include an allegation to the effect that shortly
before the hearing General Manager Porreca unlawfully
questioned "prospective witnesses as to their union
sympathies and affiliations."
The Union's objections "to conduct affecting the results
of the election" include the above-noted three points in the
original complaint, and further allege:
2. The employer granted economic benefits to its
employees.
6. The employer made serious charges and
statements against the union that, either because of
their timing or their nature, made it impossible to
disprove prior to the election and said charges and
statements went beyond proper campaign comments.
7. The employer held a meeting of employees
within 24 hours of the election at which liquor was
served.
As General Counsel noted for the record at the
conclusion of his case-in-chief, he offered no evidence
supporting the union objections 2, 6, and 7, quoted
immediately above. Nor did the Union, although
represented at the hearing, offer any evidence on these
points. It follows and will be recommended that these
three objections be overruled.
2. Relevant facts and conclusions as to interrogation
As to "interrogation," according to the testimony of
former employee Evelyn Robinson, on or about June 15,
the day after she and a fellow employee,
Frances Buczynski, had attended a union meeting, both
were asked by Plant Manager Colby if they had attended
it, and , when Robinson replied in the affirmative, how they
liked it. Robinson replied that she "thought it had a few
good points" and would attend another meeting . The other
employee said that she was not impressed and probably
would not go again . Colby admitted having had a
"conversation" with Robinson about this date and
concerning the union meeting, but denied that he had
initiated it, and claimed that Robinson herself had
volunteered the information that she had attended. He was
not asked about the similar "conversation" with
Buczynski, but this employee, also a witness for the
Respondent, flatly denied that she heard Colby's
questions of Robinson and declared he had never talked to
her "about union activity." I believe the straightforward
testimony of Robinson. Colby's attempt to make it appear
that Robinson was responsible for the conversation is
implausible, particularly in view of his admission on cross-
examination that it was possible that he did not recall
"everything about this conversation." And Colby's open
opposition toward employee self-organization at the plant
is expressed in a three-page letter, dated June 23, about a
week after the union meeting, and a two-page letter a few
days before the election, both addressed to all employees.
Buczynski's disapproval of the union campaign was made
obvious both by her words and demeanor as a witness.
In summary, it is found that on or about June 15 Plant
Manager Colby asked two employees if they had attended
a union meeting , and how they had liked it.
3. Relevant facts and conclusions as to
threats and promises
A few days before the election, also according to the
testimony of the same former employee Robinson, testi-
mony in substance corroborated by former employee
Joscelyn, Foreman Polidori told her, "I feel sorry for you
girls if the union gets in." She asked why. He replied, "Mr.
Salomon (president of the Company) is a very nice man
and if the union doesn't get in he will be very generous."
Robinson thereupon commented, "I have worked here and
I haven't had a raise in five years and I think it's about
time we did." The next day, also according to Robinson,
the same supervisor said to her, "Evelyn, just because you
feel this way about the situation, it doesn 't mean you have
got to vote for the Union, why don't you go in the office and
talk it over with Colby and settle it."
Polidori denied occurrence of the first incident, and
testified he had never initiated any conversation with
Robinson or any other employee "with respect to union
activity." As to the second incident, he admitted
suggesting that she go to see Colby, but said that his
suggestion followed her protest against his having just told
her to lay off that afternoon for lack of work. I credit
neither the foreman's denial nor his explanation as to why
he suggested her going to Colby. Joscelyn's testimony to
the effect that she heard him make this remark refutes his
claim that Robinson was the only "sorter" there that day.
During his testimony he admitted that both employees
were sorters under him. And his declaration to Robinson
that she did not "have to vote for the Union" is not only
consistent with similar statements contained in letters
sent to employees about the same time, but also with
written instructions he admittedly had received from top
management.4
In summary, it is found that Foreman Polidori made the
remarks attributed to him by Robinson and Joscelyn.
According to the testimony of employee O'Leary, a few
days before the election Assistant Foreman Stetson told
him, "You guys don't want the union in here, because it's
going to hurt you, and if the union doesn' t get in , you are
going to get more money anyway." Stetson denied making
these statements, but claimed that a month or so earlier
O'Leary came to him at his home, and "asked" his
"opinion," and that he had told the employee he "wasn't
allowed to give it." Stetson' s denial is not credited. Not
only his demeanor as a witness, but also his effort,
prompted by counsel for the Respondent,5 to cast
4 Such instructions, given to supervisors, read in relevant part.
"Tell employees that the signing of a union authorization
card does not mean that they must vote for the union . "
S Counsel said he asked the question to "show the nature" of
O'Leary
TILTON TANNING CORP.
reflection upon the character of O'Leary, by claiming that
the employee drank so much beer that he had to drive him
home, deprive his testimony of any credence. Moreover,
his claim that he told O'Leary that he was not "allowed to
give" an opinion regarding the Union is directly contrary to
instructions he admittedly had received from top
management.
In summary , it is found that Stetson made the remarks
attributed to him by the employee.
4. Relevant facts and conclusions as to certain campaign
documents
During the preelection period both the Union and the
Employer distributed campaign "literature" highly critical
of each other and certainly not mutually complimentary.
Both the complaint and a union objection allege in
general terms that by the circulation of its material to
employees the Respondent threatened them "that a
selection of the Union would have adverse economic
consequences," and created the "impression that voting
for the union would be futile."
Neither General Counsel nor the Union made more
specific allegations during the hearing.
In his brief, however, General Counsel cites the
following excerpts from company literature, as "evidence
of independent 8(a)(1) violations":
(1) You would then be PROHIBITED BY LAW
from negotiating directly with us even if you wanted
to.
(2) ... if it (the Union) wins, the company MUST
DEAL with the Union.
This means that, with a union , you could no longer
talk with me or others in the company fully and freely
about matters dealing with your job. The company
would have to "negotiate" ONLY through the Union
and you would have to wait for clearance from
outsiders on matters affecting YOU and YOUR job.
(3) ... YOU WILL LOSE RATHER THAN GAIN
. AND SURRENDER YOUR RIGHT TO SPEAK
FOR YOURSELF.
(4) WITHOUT losing your right to speak for
yourself....
(5) With or without a union, the company will grant
fair wages ....
(6) ... he never tells you if any of the plants with
high rates later were forced out of business.
(7) PRESENT BENEFITS CAN BE BARGAINED
AWAY....
(8) Unionization of the tanning companies in
Massachusetts has practically destroyed the industry
there.
(9) ... if the union gets in, long period of
negotiations would have to be set through ... (and) its
very existence might keep you from getting a justified
wage increase.
(10) We all know that management has always
listened to any complaints ....
5. Conclusions regarding events and excerpts described
above
It has been found above that two employees were asked
by Colby if they had attended a union meeting and if they
8 Trent Tube Company, Subsidiary of Crucible Steel Company
ofAmertca, 147 NLRB 538, 540.
1173
liked it. This is the single incident of "interrogation" as to
which the record contains any evidence. In my opinion it is
so trivial as to require no further comment.
It has also been found that an employee was told by a
supervisor that the head of the Company would be "very
generous" if the Union did not "get in ," and that another
was told that "it's going to hurt you" if the Union won the
election, and that, if it did not, employees would get more
money "anyway." These vague and ambiguous references
to a generous president, to being "hurt" and "getting more
money," in the context of a heated election campaign, fail
to reach the stature, I believe, of violations of the Act.
They were relatively isolated, only 2 or 3 employees of 90
or more being involved.
Although it has been found that the few remarks were
made, General Counsel himself introduced evidence
which, in effect, prevents any inference that they were
made in implementation of management policy. He proved
that all supervisors were given a long list of things they
might do or must not do, during the campaign. And the list
contains specific admonitions that no threats of reprisals
or promises of benefit were to be made.
It is therefore concluded and found that none of the
remarks quoted above constituted interference, restraint,
or coercion of employees in the exercise of their Section 7
rights, or interfered with the freedom of the election.
As to the several quotations from the Company's
campaign literature set out above, I am unable to agree
with General Counsel that, separately or in the aggregate,
they constitute violations of the Act, or were of a nature
interfering with the free conduct of the election.
A number of the quotations lose serious implication
when read in their context, omitted by General Counsel.
For example, the first excerpt: "You would then be
PROHIBITED BY LAW from negotiating directly with us
even if you, wanted to," is immediately preceded by the
accurate statement : "If the Union wins it will be the
bargaining agent for ALL, even though you are not all
members of the union."
Others, even when considered apart from their context,
plainly do not exceed the free expression privilege
provided by the Act. For example: neither "with or without
a union , the company will grant fair wages," nor "he never
tells you if any of the plants with high rates were forced out
of business !" may reasonably be found to be coercive.
In summary, and without attempting here to appraise
each of the cited quotations, I believe and find that the
election material distributed by management "could
clearly be evaluated by the employees as partisan
electioneering,' 16 was not violative of Section 8(a)(1) of the
Act, and did not interfere with the freedom of the election.
6. Interrogation of employees before the hearing
As above noted, during the hearing the complaint was
amended to include an allegation of independent 8(a)(1)
violation, regarding management's questioning of
employees a few days before the hearing opened.
There is no dispute as to relevant facts. Having obtained
from his counsel (counsel of record in these proceedings)
the text of a questionnaire, General Manager Porreca
individually summoned to his office more than 60
employees. With him at each interview was an office girl,
to be his witness, he explained, but with no other employee
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as witness for the individual being interviewed. Each
employee was handed a s'ip of paper which bore the text:
Please look over this questionnaire. We are
preparing to try the case on November 15th and
would like your answers to these questions . You are
free to answer or not , as you wish.
The general manager did not permit employees to write
their own answers to items on the questionnaire quoted in
full below , but placed upon each sheet his own
interpretation of answers . Counsel for the Respondent,
although he was not present , conceded that Porreca "was
the individual who asked the questions."
The questionnaire reads as follows:
TILTON TANNING CORP.
Name of Employee
(1) Have you, at any time since May 27, 1965, been
approached by any person asking you to sign a
membership application in the Amalgamated Meat
Cutters and Butchers Workmen of North America or
any of its locals, or to sign any other card or form in
connection with such union?
(2) If so, was it your understanding that your
signature was to be used to obtain an NLRB election?
(3) Did anyone tell you before you signed the form
that your signature might be used to get bargaining
rights for the union without having an election?
(4) Did you sign a card for any one or more of the
following reasons:
(a) Because everyone else is signing?
(b) Because a friend asked you to do so as a
favor?
(c) Because the cards were to be used to scare
the Company into giving a raise?
(d) Because someone told you you would be
sorry if you refused?
(e) Because someone threatened you?
(f) Because you were afraid you would lose
your job if you refused?
(g) Because the initiation fee was waived for
signing before the election?
(h) In order to get rid of the person asking for
your signature?
(5) When you signed the form, did you intend to
decide how to vote in the NLRB election as a result of
your own examination of the election campaigns of
the union and the Company?
(6) Did you commit yourself to vote in favor of the
union regardless of anything anyone might say in
favor of rejecting the union?
(7) Were you surprised to learn that the union
demanded recognition in spite of losing the election?
(8) Knowing now, that the union did not intend to
rely on a secret ballot election, do you believe that the
person who got you to sign the form really tried to
make you understand the effect of your signature?
I consider that the Respondent was ill-advised as to the
contents and manner of presenting this questionnaire to
employees. Despite the vague opening statement that
employees were "free" to answer or not, the questions
were put to them, not by an attorney, but by their top
manager, who had openly and expressly advised all
employees that he opposed their being represented by the
Union. The answers were not written by the employee
questioned, and there is no evidence that they were even
permitted to see what the general manager may have
noted on the documents.
Furthermore, in my opinion, the nature of many of the
questions far exceeded the permissive criteria set out by
the Board in Johnnie's Poultry Co., 146 NLRB 770, 775,
which, so far as I am aware, are still governing.7
Questions 2, 4, 5, 6, 7, and 8 are clearly and mainly
"subjective," would not have been permitted at a hearing,
and violated the Board holding cited above.
It is concluded and found that by imposing the above-
quoted questionnaire upon employees the Respondent
violated Section 8(a)(1) of the Act.8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Certain of the activities of the Respondent, set forth in
section III, above, occurring in connection with the
business operations of the Respondent described in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Allied Local 128, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By interrogating employees in the manner set forth
above, the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by
Section 7 of the Act and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. The Respondent has not engaged in other unfair
labor practices alleged in the complaint.
5. The Employer did not engage in conduct interfering
with the freedom of the election of July 25, 1966.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
' See also Bishop and Malco, Inc, d/b/a/ Walker's, 159 NLRB
1159
8 It was not alleged, of course, that the questionnaire interfered
with the conduct of the election