Merry Brothers Brick and Tile Co.

In the Matter of MERRY BROTH ERS BRICK AND TILE Co. and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, C. I. O. Cases Nos. 10-R-1532 and 10-C-1890.Decided October 27, 19417 Mr. William Pate, for the Board. Mr. W. M. Fulc/ier, of Lee, Congdon, and Fulcher, of Augusta, Ga., for the respondent. Mr. San H. Scott, of Winston-Salem, N. C., for the Union. DECISION AND ORDER On September 23, 1946, Trial Examiner Thomas S. Wilson issued his Intermediate Report 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 copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and finds merit in the respondent's exceptions. The Trial Examiner found that the respondent, in violation of Sec- tion 8 (1) of the Act,' distributed a few days before the scheduled election sample ballots indicating a preference against representation and required its employees during working hours to attend and listen to a pre-election speech, which was otherwise privileged. We do not agree with these findings. Unlike the Trial Examiner, we are not persuaded that the record establishes that the sample ballots, which were distributed by Foreman Outz,2 the only management representative found by the Trial 1 All references to the Act, unless otherwise indicated, are to the original National Labor Relations Act, 49 Stat. 449 2 There is no evidence that Outz' activities occurred within any prohibited area near the polls 75NLRB,No15. 136 MERRY BROTHERS BRICK AND TILE CO. 137 Examiner to have engaged in this conduct, were actually marked to designate a vote against the Union. Neither Hammond nor Williams, the employees who were allegedly given the sample ballots of the nature in question, was able to identify what squares in the ballots were cross-marked.3 In any event, even were we to assume that Outz had distributed anti-union sample ballots, we do not believe that, under the particular circumstances herein, this conduct consti- tuted interference within the meaning of the Act. As shown in the Intermediate Report, the respondent employed, at most, a form of communication first utilized by the Union as part of its election cam- paign. Moreover, the alleged anti-union ballots merely reflected the respondent's opposition to the Union expressed in official speeches, which the Trial Examiner properly found were protected and which recognized the employees' right to select a bargaining representative of their own choosing without fear of discrimination or reprisal. In fact, in Williams' case at least, Outz also voiced the respondent's recognition of the employees' right to vote as they pleased. Quoting Outz, Williams testified that Outz told him when Outz handed him a sample ballot, "You have a privilege of voting for who (sic) you want. . . . It's up to you to vote for the Company or whether for the Union." We also do not adopt the Trial Examiner's finding that the respond- ent's conduct in compelling its employees during working hours to attend and listen to a pre-election speech 4 constituted an unfair labor practice. In reaching his conclusion, the Trial Examiner relied upon the Board's decision in Hatter of Clark Bros. Co., Inc. However, since the issuance of the Intermediate Report herein, the Second Cir- cuit Court of Appeals, in enforcement proceedings in Clark Bros.,e had the occasion to consider, inter alia, the "compulsory audience" concept. As we construe the Court's opinion and decree enforcing and modify- ing the Board's order,' the Court only went so far as to hold that a 3 The sample ballots in question were not pi educed at the hearing because, as the Board's attorney there stated, they were either lost or misplaced 4 Although the Timl Examinet applied the "compnlsorv audience" doctrine to the circum- stances of all the pre-election speeches discussed in the Intermediate Report, the evidence relates only to the circumstances of the last speech on January 29, 1946. 5 70 N L R B 802 c N L R B v Clam, Rios , Inc, 163 F (2d) 373 (C C A 2). 4 Concerning the ''compulsory audience" aspect of the Clark Bros case, supra, the Court there said • The Board argues that one of the rights guaranteed employees by Section 7, 29 U S C A § 157, is the right to he free to determine whether or not to receive aid, advice and information concerning their self-organization for collective bargaining, and that this right is violated whenever the employer utilizes his power to compel them to assemble and listen to speeches relative to matter of organization But the present case does not call fos laying down so broad a rule An employer has an interest in presenting his views on labor relations to his employees We should hesitate to hold that he may not do this on company time and pay, provided a similar opportunity 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L'compulsory audience" was unlawful if a similar opportunity to ad- dress the employees was not afforded the labor union seeking to organize the employees. Appraising the evidence in the case at bar in the light of the Court's opinion and decree in Clark Bros., we find that, although the respond- ent delivered the speech in question during working hours to its employees whose attendance at the meeting was required, there is no. evidence that a similar opportunity to address the employees was not available to the Union. Indeed, the only relevant evidence seems to indicate that a union representative was invited to attend the meeting; there certainly is nothing in the record to suggest that the union repre- sentative was or would have been denied the same or a similar forum to present the Union's views. We, therefore, are unable to conclude that an unfair labor practice was proved.s Accordingly, we find, contrary to the Trial Examiner, that the respondent did not interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall, therefore, dismiss the complaint. Consistent with these rulings, we also find no merit in the Union's objections to the conduct of the election held on January 29, 1946. We shall, therefore, also dismiss the petition for investigation and certification of representatives filed by the Union in Case No. 10-R-1532. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint issued herein against the respondent, Merry Brothers Brick and Tile Co., Augusta, Georgia, be, and it hereby is, dismissed. AND IT Is FIIRTIIER ORDERED that the petition for investigation and certification of representatives filed by United Stone and Allied Prod- ucts Workers of America, C. I. 0., in Case No. 10-R-1532 be, and it hereby is, dismissed. to addiess there were accorded representatu,es of the union. Cf N L. R B. v. Montgomery Ward it Co., 157 F. (2d) 486, 498-9 (C C. A. 8) [Italics added.] In the decree, which it thereupon entered, the Court accordingly modified the Board's order by adding the underscored portion to the cease and desist provision, to read as follows (d) Compelling its employees during working time to listen to speeches relating to self-organization and the selection of a bargaining repiesentative. without accordinq a similar opportunity to address them to the Union 8In reaching this conclusion, we find it nnneeessarv to determine whether the amend- ment to the National Labor Relations Act (Public Law 101-80tli Congress), -ehicli became effective August 22, 1947, would preclude a tinding of untair labor practice in a situation such as that piesented in the instant case , or in a situation where the record affinaatisely shows that the Union was not afforded a similar opportunity to address the employees. MERRY BROTHERS BRICK AND TILE CO. 139 MEMBERS REYNOLDS and MTJRDOCK took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Il[i William Pate, for the Board. Mr. W M. I"ulclter, of Lee. Congdon. wail Filcher. of Augusta, Ga., for the respondent. Mr. Sam H. Scott , of Winston-Salem, N. C., for the Union. STATEMENT OF THE CASE Upon a petition duly filed by United Stone and Allied Pioducts Workers of America, C. I. 0, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Merry Bi others Brick and Tile Co , Augusta, Georgia, herein called the respondent, the National Labor Relations Board, herein called the Board, held an appro- priate hearing at Augusta, Georgia, on August 16, 1945. Thereafter, on De- cember 27, 1945. the Board issued its Decision and Direction of Election' pro- viding for an election by secret ballot among the production and maintenance employees of the respondent with certain exceptions This election was held on January 29, 1946 The tally of ballots showed that, of 288 eligible voters. 76 votes were cast in favor of the Union, 190 votes against the Union and 3 ballots were challenged. On January 30, 1946, the Union filed objections to the election because of alleged activities of the respondent in violation of the Na- tional Labor Relations Act, herein called the Act Pursuant to Article 3, Sec- tion 10 of the Board's Rules and Regulations, the Regional Director on June 19, 1946, issued his report on the objections in which lie found that the objections raised substantial and material issues with respect to the conduct of the elec- tion and recommended that the Board direct a heaung upon the objections. On .July 8, 1946, the Board, finding that the objections raised substantial and mate- rial issues with respect to the conduct of election, issued an order directing that a hearing be held on the objections to the election Thereafter. upon a charge duly filed on March 12, 1946, by the Union, the Board, by its Regional Director, issued its complaint dated July 22, 1946, against the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, 49 Stat 449 By order dated July 18, 1946, the Board consolidated the cases for hearing. Thereafter, copies of the complaint, the charge accompa- nied by a notice of consolidated hearing on the allegations of the complaint and the objections to the conduct of election, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that : the respondent expressed disapproval of the Union, urged, persuaded, and threatened its employees to refrain from assisting, becoming or remaining mem- bers of the Union, and made a speech to the employees discouraging niembei- ship in the Union, thereby interfering with, restraining, and coercing its em- ployees within the meaning of Section 8 (1) of the Act At the hearing, the respondent filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. The answer also affirmatively alleged that the speech by the respondent's agent was 2 64 N. L. R. B. 1548. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made in the exercise of his right of free speech guaranteed by the first Amend- ment to the Constitution of the United States as were the other acts complained of Pursuant to notice a hearing was held in Augusta, Geoigra, on August 15, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner The Board, the iesponde nt, and the Union were represented by counsel. Full opportunity to he heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties At the close of the hearing all parties waived oral argument but the iespondent has filed a brief with the undersigned. Upon the entire record in the case, and fiom his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT illerry Brothers Brick and Tile Co is a Georgia corporation engaged at its plants in Augusta, Georgia, in the manufacture, sale, and distribution of brick and tile products. During the year ending August 1, 1946, it purchased raw materials consisting principally of coke of value in excess of $100,000 of which approximately 90 percent was purchased outside the State of Georgia and shipped to its plant at Augusta, Georgia During the same period the respondent sold finished products consisting principally of brick and tile, valued in excess of $500,000 of which approximately 66 percent was shipped outside the State of Georgia. The respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Stone and Allied Products Workers of Anicrica, affiliated with the Con- gress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent. III TIIE UNFAIR LABOR PRACI ICES A. Interference , i esti aint, and coercion As a part of the investigation and certification of representatives , the Board pursuant to its Direction of Election z dated December 27, 1945, held an election among the employees of the respondent on January 29, 1946 . Of the 28S eligible voters , 190 voted against representation by the Union and 70 for such representa- tion. The Union has filed objections to this election based on the facts mentioned hereinafter. Respondent's employees are all negroes, 90 percent of whom , the respondent estisilates, are illiterate and never have had any experience with balloting in a secret election until they voted in the above-mentioned Board election. On August 16, 1945, the Board held a hearing on the question of the appropriate ,unit resulting in the Order and Direction of Election mentioned above . By this time the Union had signed application cards from 88 of the then employees. On August 25, 1945 , the respondent assembled all its employees to hear an optimistic report by Kenneth llerry, respondent 's president and general manager, 2 64 N L R B 1548. MERRY BROTHERS BRICK AND TILE CO. 141 on the post war prospects of the respondent. Merry concluded this talk with the following paragraphs: Now, one more thing. Some of you probably expected me to say something of the CIO Union that is endeavoring to get you to join them. I have nothing to say at this time except that probably at some future date you will be called on to make a decision as to whether or not you want a union. I will probably talk to you about that at some later date but in the meantime Remember : Do unto others as you would have them do unto you And don't forget Mr Ernest or myself or Mr Robinson or Mr Abney will be glad to talk to anyone about any of your problems. Please do not be timid about asking us questions. On October 6, 1945, Kenneth Merry again assembled the employees and told them that, as a result of the advice the respondent had given the War Production Board, the OPA had increased the price of brick and so, no longer having to secure permission tiom the National War Labor Boaid in order to raise wages, i espondent was granting a wage inci ease effective the pay period ending October 20. On this point Meri y added : "We are going to do it I increase wages] soon even before we receive the benefits of the price increase ourselves. We want you to understand that the Company helped work for this and for this purpose. When conditions warrant we will do it again " Again on January 12, 1946, the respondent called its employees together in order to hear another speech made on this occasion by Ernest Merry, respondent's vice president, who told them : I am glad to have this opportunity of talking with all of you men and women today. I will sincerely appreciate your close attention to my remarks as the subject on which I am about to talk seriously effects your future welfare. On Tuesday, January 29th, there will be an election held at this Plant for the purpose of giving you the opportunity of deciding whether you want an outside organization known as the United Stone & Allied Products Workers of Ainerica-C10, to represent you in your dealings with the management of this Company, or whether you wish to continue to have the privilege you have always enjoyed of being able to talk directly to Mr. Kenneth Merry, Mr. Harry Robinson or to me about your personal problems. This is a most important decision which you have to make. As you all know your company, The Merry Brothers Brick & Tile Company has ad- vanced to you over a period of years many thousands of dollars with no interest charge to tide you over emergencies-such as hospital and Doc- tors bills, and Lawyers fees and fines when you happened to get in trouble. We have also in the last four years gone to bat for you five times before the War Labor Board and obtained five substantial raises in pay which has made your average take home wages higher than any similar industry in Augusta Merry Brothers Brick & Tile Company is interested in you and your wel- fare and these benefits for you have been obtained without the necessity of you having to pay any Union Dues, or initiation fees of any kind to anyone. Some of you may think that you can try the Union and then if you don't like it you can get out. If you vote the Union into this Plant you will find that you cannot get out if you become dissatisfied with it. This is very important for you to know before you make your decision at the elec- 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion Once you vote the Union in, you must always pay your dues and fines or assessments which the Union may decide to impose on you or else you will be subject to the loss of your job In othei won ds, if the Union repre- sents you and you get in had standing with the Union they can force the Company to discharge you no matter how well you do your work At the present time, with no Union in this plant the Company does not have to discharge anyone whose work is done well. Some of you may have signed the Union Cards but don't let that worry you if you decide that you want to vote against the Union on election day. The cards are not binding ; but remember, the way you vote at the election is binding. You can change your mind now, but if you vote the Union in, you will be subject to the Union's Rules and Regulations Some of you may think that the government want you to join the Union. This is not true ! The govei nment is only interested in seeing that you get a fair deal at the election and that no one shall force or scare you into vot- ing either one way of the other against your wishes To this end, the government is sending one of its representatives down here to supervise the election so that you can be assured of a fair chance to make your own decision when you vote The government does not care whether you vote for the Union or not Your decision must be of your own free will accord- ing to the way you think and the Government representatives will be here to see that no one interferes with the way you want to vote The govern- ment representative will also see that the way you vote is kept an absolute secret. As I see it, there are only two points in this whole problem of yours of whether or not to join the Union ; These two points are: 1. Better working conditions 2 Higher wages Let's consider the first point, better working conditions ; all you have to do is look around you. The Company has spent and is spending thousands of dollars to make your work more pleasant None of these ideas has come from the Union, they have all come from the management In addition to what you have seen done and what you see being done, the company has plans for the future which will give you much better conditions than you now have. These plans will be transformed into actuality just as soon as time and money permit and nothing that the Union can do will effect (sic) them. As regards the second point, higher wages; you are now enjoying the top take home pay of any similar Industry in Augusta by virtue of the five raises the Company has obtained for you in the past four years. You are getting these wages without having to pay any Union dues, fines, or assess- nments Right here let me say that Merry Brothers Brick & Tile Company w ill always pay its workers, as it has in the past, the highest possible wages it can afford regardless of whether you belong to a Union and pay dues to that Union or not. Remember, the Union can not force the Company to pay higher wages than profits permit Now a word about the importance of voting on election clay It is very important for each and everyone of you to vote that clay If you do not vote you will be letting someone else decide this very important question for you and your families The outcome of the election will be decided by the majority of those who vote and not by the number of men and women em- ployed at the plant. For example suppose only 20 people voted and say 11 voted one way and 9 voted the other way. The eleven votes would be a 1IERRY BROTHERS BRICK AND TILE CO. 143 majority of those voting so they would control the results of the election and therefoie the choice of eleven men would control the lives and welfare of all the 300 or more employees and then families of this Company. Remember this, the Company is not telling you how to vote It is our opinion, that you will be much happier and better satisfied to continue to deal with the Company direct as you have in the past You and I will then know that we c.i n enjoy the same good relations we have always had. The decision is yours If you want to paN Union dues and have a Union whose headquarters is not in Augusta, Ga, but in Daire, Vermont, to represent you, that is your privilege If, however, you want to bring your problems to Mr. Kenneth Merry, Mr Harry Robinson or to me directly, and talk over your problems with us who live in the same town as you do, that is also your privilege. Whichever wav you vote, the Company will treat you all alike and no one will be penalized for n oting his honest convictions. I am bringing these thoughts to your attention for your benefit so that you may understand the importance to you of the questions you are about to decide Whatever is the outcome, I hope that you and I as heretofore, will always be friends Finally. daring working hours on the morning of January 29, prior to the open- ing of the polls at 10 a in , upon order., of the respondent carried out by the various toremen, all the employees of Plant No. 1 were congregated in the automotive shop where Kenneth Merry addiessed theme The notes from which he spoke read as follows. " Just .i few points for each of you to remember when you vote today. SAMPLE BALLOT IN HAND The reason the Government is having this election is because they want to know how you feel about joining this Union. You might have wanted to join last June but changed your mind The Government does not care how many cards you signed. They want to know your true feelings. So, don't let the fact that a few of yogi might have signed cards have any effect on how you vote. But be sure and vote. And I hope the way you vote will make it easy for you and I to work closer together for our general happiness. Men and women of Merry Brothers Brick & Tile Company-are you going to vote to let Widenhouse, Scott' and the rest of that crew come between you and me? You know you are not. We think you don't want that to happen. If you think I'm right, then vote the right hand side, vote No. If you think I'm wrong, vote the other way. Show Ballot I understand that a few men on the plant are saying that "If you don't vote for the Union" that they will lose their jobs. That is a lie. We never have threatened anyone and don't ever intend to do so. We leave that kind of business to those good C. I. 0. organizers. Listen-This business is built on the "Golden Rule."-Do you want that kind of treatment or do you want the C. I. 0. treatment, including strikes, 3 Kenneth Meiry did not read the notes quoted above verbatim but both lie and the general superintendent testified that Merry "stuck close" to the notes although adding some material extemporaneously The undersigned finds that the above quoted notes constitute a fair report of the speech delivered The words "Sample Ballot in I-land" and "Show Ballot" are obviously stage directions for the speaker's use 4 Two of the Union oiganizers. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket lines, bread lines and soup lines? It's your turn now. When you are called today, let your ballots speak for themselves Once you drop your ballot in the box, there is nothing else you can do and no one will know how you vote At an election held on a brickyard in South Carolina at Cheraw. S C about two weeks ago, only one worker voted for the Union. It would make me very happy for this to be an election like that. I'm proud of this Company and I'm proud of the men and women who work for Merry Brothers. You stand for something in the community. Let's keep standing for something. Let's go develop this plant together. We need you-you need us. You don't have to start paying for the privilege to work here It you want to spend your money, spend it in Georgia. Together we go forward. Everybody vote. We'll count the ballots tonight and the result will be in the morning paper. I'm going to thank each one of you in advance for voting Go to your jobs and you will be called in time to vote. When you vote, please return to your jobs as soon as convenient. Don't get mad. We'll all know how we come out tonight. Hete's hoping you and the Company will alit irys have the good feeling we have had in the past. Let's pray right-Let's vote right-Let's work for that. I thank you ! While this was being done at Plant No 1, Ernest Merry was speaking to the employees of Plant No. 2, who had gathered also on the respondent's orders, to hear him speak. No copy of this speech was introduced in evidence In the last few days prior to the election the Union printed and distributed to the employees certain pamphlets which contained sample ballots, in whole or in part, clearly marked as such, in which an "X" was printed in the box signifying the employee's desire to be represented by the Union. Both these pamphlets also contained electioneering material. . Thereafter, but prior to the date of the election, the respondent had sample bal- lots printed which it made available to the employees and to the foremen. These ballots were also clearly marked "sample " No "X's" or electioneering matter was printed thereon After the polls opened, the respondent arranged to have certain departments go to vote at certain 'times Foreman Moody Outz, admittedly a supervisory em- ployee, had sample ballots for his view As Outz w.is accompanying employee Gus Hammond to the polling place, Outz explained how to cast a ballot and marked one sample ballot for Hammond with a penciled "X" in the "No" box-a vote against representation by the Union-which he then gave to Hammond. Outz also handed another sample ballot with another "X" in pencil in the "No" box to employee Marshall Williams as that employee was on his way to cast his ballot.5 Concluding findings The Board contended that the respondent interfered with, restrained, and coerced its employees by means of the speeches and of the actions of Foreman s I3oth Hammond and Williams testified that, while Outz marked the sample ballots in pencil, they could not remember whether he had marked the ballots "Yes" or "No' but that they had later delivered these ballots so marked to Organizer Sam Scott Scott testified that both ballots weie marked "No " Although Outz was available, lie was not called as a witness As Williams, Hammond and Scott all appealed to be credible witnesses and as Outz failed to testify, the undersigned accepts the testimony of Williams, Hammond and Scott. MERRY BROTHERS BRICK AND TILE CO. 145 Outz in demonstrating to Hammond and Williams how they should vote against the Union. The respondent defends on the grounds that both the respondent and Foreman Outz were justified in their acts under the First Amendment to the Constitution. A reading of the speeches of the Merrys' is sufficient to convince that they were ,open and frank appeals by the respondent to its employees to vote against repre- sentation by the Union The respondent thereby made itself in effect a contest- ant in the election. However, outside of the misleading and incomplete statement regarding the possibility of the Union's forcing the respondent to discharge ein- ployees who got into bad standing with the Union, there is nothing in the con- tents of the speeches which can be held to be coercive or intimidatory under the ,doctrine of the Ames scan Tube Bending decision ° Under that decision the re- spondent is entitled to express its anti-union feelings to any of its employees who voluntarily cared to listen. But the First Amendment does not justify an employer in using its economic _^tiength as such employer in compelling its employees during time paid for by it to listen to those anti-union sentiments expressed. The employer pays its em- ployees to work and not to listen to it expound its economic and social philosophy on matters which by statute are made the sole concern of the employees themselves Such use of the employer's economic power to capture an audience in order to compel employees to hear the employer's anti-union philosophy propounded has recently been condemned by the Board in the Clark Bros , Co , Ine, case where the Board said: 4 The Trial Examiner also found that, in one instance a mere hour before the polls were open for the run-off election between the CIO and the Association, the employees were compelled by the respondent to as- semble at the plant during working time to listen to anti-CIO campaign speeches of the respondent's officials The speeches were made on the premises during working hours and were broadcast throughout the entire plant. The power and engines were shut down. All plant operations were suspended and the employees were directed by the respondent, through some foremen and by the public address system, to assemble to listen to the speeches Thus, the employees were required to listen to these speeches because the respondent controlled the manner in which the employees were to occupy their time. The only way the employees could have avoided hearing the speeches would have been for them to leave the premises, which they were not at liberty to do during working hours. The Trial Examiner concluded on these facts that the respondent, by its control over its employees during working hours, not only paid its em- ployees for listening to its anti-CIO solicitation, but that the manner of exercising such control gave the respondent, under the stated circum- stances, assured and, during working hours, exclusive access to its em- ployees in a matter relating to their organizational activities. We agree. We are also of the opinion, and find, that the conduct of the respondent in compelling its employees to listen to a speech on self-organization under the circumstances hereinabove outlined and as more fully revealed in the Intermediate Report, independently constitutes interference, restraint, and ° 134 F (2d) 992 (C C A 2) 7 70 N L It B S02, decided August 1946. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercion within the meaning of the Act Section 7 of the Act guarantees to employees the "right to self-oigamz.itum, to foiin. loin, or assist labor organizations" and "to bargain collectively Ihiough representatives of their own choosing" The Board has long recognized that "the lights guaran- teed to employees by the Act include the full freedom to receive aid, ad- vice, and information from others, concerning those lights and their en- joyment."' Such freedom is meaningless, however, unless the employees are also free to determine whether or not to receive such aid, advice, and information To force employees to receive such aid. advice, and informa- tion impairs that freedom; it is calculated to, and does, interfere with the selection of a representative of the employees' choice. And this is so, wholly apart from the fact that the speech itself may be privileged under the Constitution. The compulsory audience was not, as the record shows, the only avenue available to the respondent for cons eying to the employees its opinion on self- organization It was not an inseparable part of the speech,' any more than might be the act of a speaker in holding physically the person whom he addresses in order to assure his attention. The law may and does prevent such a use of force without denying the right to speak Similarly we must perform our function of protecting employees against that use of the em- ployer's economic power which is inherent in his ability to control their actions during working hours.' Such use of his power is an independent circumstance, the nature and effect of which are to be independently ap- praised. We conclude, therefore, that the respondent exercised its superior economic power in coercing its employees to listen to speeches relating to their organizational activities, and thereby independently violated Section 8 (1) of the Act.' ' Matter of h arlan Fuel Company, S N L It B 25, 32. 5 Cf Thomas v Collins, 323 U. S. 516 0 Cf People of New Yoi l; v Ford Motor Co , decided June 26, 1940, N Y Sup Ct. App Div ( 3rd Dept ) (63 N Y S (2d) 697) 7In so holding, however , we do not rest our finding upon or adopt that portion of the Intermediate Repoit which refers to a "constitutional right of non-assembly" The respondent also contends that its speeches and the actions of Foreman Outz were not violative of the Act on the ground that the negro employees were being instructed in how to vote. It must be emphasized that 90 percent of then were illiterate and all were inexperienced in the physical exercise of the franchise. The respondent's point, therefore, that the very act of voting was confusing to these employees appears to be well taken. But when the respondent assumed the responsibility of instructing its employees on the mechanics of voting, instead of leaving it to some competent, disinterested third party, such as a Board agent, it also assumed the risk that its actions in so doing may have co- erced the employees. In the opinion of the undersigned, to permit an employer to hand out marked sample ballots to illiterate, inexperienced employees on their way to the polls, which ballots indicate the employer's desire as to how the employee should vote, would amount under such circumstances, to a license to seriously undermine the employee's tights under the Act. Nor can such action, under such circumstances, be considered as constitutionally privileged, in that it is tantamount to a direction or order to its employees, not to be lightly ignored by them. The undersigned therefore finds that the actions of Foreman Outz were violative of the Act 8 8 One other defense should be noted in relation to the Outz matter. Respondent produced evidence that, while it had given its foremen permission to take the sample ballots for use MERRY BROTHERS BRICK AND TILE CO. 147 By compelling its employees to attend and listen to anti -union speeches, and by handing out marked ballots to its employees, the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act In view of these findings the undersigned will icconunend that the election be set aside IV THE EFFECL OF THE UNi A]R LABOR PRACTICES UPON CODf\IERCE It is found that the activities of the respondent set forth in Section 111, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traltic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action found necessary in order to effectuate the policies of the Act. Since it has been found that the acts and utterances of the respondent have so affected the Board's election held on Januai y 29, 1946, that it may not have fairly reflected the untrammelled wishes of the respondent's employees, it will be leconmiended that the election be set aside. On the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following CONCLUSIONS OF LAW 1 United Stone and Allied Products Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in, rind is engaging in, unfair labor practices within the meaning of Section 8 (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. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Merry Brothers Brick and Tile Co., and its officers, agents, successors, and assigns shall: 1 Cease and desist from: Engaging in conduct, including the assembling of the employees for the pur- pose of addressing anti-union remarks to them and handing to individual em- ployees sample ballots marked against representation by the Union, or any like or related conduct, for the purpose of and with the reasonable effect of intei- in instructing the employees, it had given distinct orders that the ballots should not be masked . Respondent, therefore, contended that it could not be held responsible foi the act of its foreman in handing out a marked ballot Such instructions were never made cleai to the employees so that they were entitled to assume that the foiemen were acting within their authority in distributing marked ballots Having thus placed an instrumentality capable of being misused into the hands of its authorized agents without due precautions, the respondent must assume responsibility for such misuse as could be reasonably antici- pated. 148 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD fering with, restraining , and coercing its employees in the exercise of their right to self-organization , to form, join, or assist United Stone and Allied Products Workers of America , C I. 0 or any other labor organization , and to select a bargaining representative of their own choosing. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act • (a) Post at its plant in Augusta, Georgia, copies of the notice attached hereto nuuked "Appendix A" Copies of said notice. to be furnished by the Regional Director for the Tenth Region , after being signed by the respondent's repre- sentative , shall be posted by the respondent inuuediately upon the receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter, in conspicuous places , including all places where notices to employees are cus- tomarily posted . Reasonable steps shall be taken by the respondent to insure that said notices are not, altered, detaced , or covered by any other material ; (b) Notify the Regional Director for the Tenth Region in writing, within ten (10 ) clays from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply herewith. It is recommended that the election held by the Board on January 29, 1946, be set aside. It is further recommended that unless on or before ten (10 ) days from the receipt of this Intermediate Report , the respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 20339 of the Rules and Regulations of the National Labor Relations Boaid, Series 4, effective September 11, 1946 , any party or counsel for the Board may, within fifteen ( 15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations , file with the Boaid, Rochambeau Building, Wash- ington 25 , D C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he ielies upon , together with the original and four copies of a brief in support theieof; and any party or counsel for the Board may, within the sane period, file an original and four copies of a brief in support of the Inteiinecliate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall set ve a copy theieof upon each of the other parties and shall file a copy with the Regional Dnectoi Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Sec- tion 203 39 , should any party desire permission to argue orally before the Board, i equest therefor must be made in writing to the Board within ten ( 10) days from the (late of service of the order transferring the case to the Board. THOMAS S WILSON, Trial Examiner. Dated September 23, 1946. MERRY BROTHERS BRICK AND TILE CO. APPENDIX A NOTICE TO ALL EMPLOYEES 149 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: - WE WILL NOT engage in conduct, including the assembling of the employees for the purpose of addressing anti-union remarks to them and handing to individual employees sample ballots marked against representation by the Union, or like or related conduct, for the purpose of and with the reasonable effect of interfering with, restraining, and coercing its employees in the exer- cise of their rights to self-organization, to form, join or assist United Stone and Allied Products Workers of America, C. I. 0., or any other labor organi- zation, and to select a bargaining representative of their own choosing. All our employees are free to join or remain members of United Stone and Allied Products Workers of America, C. I. 0. MERRY BROTHERS BRIOic AND TILE CO., By ------------------- ------------------ (Representative) (Title) Dated------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 766972-48-vol . 75--11