G. H. Hess, Inc.

In the Matter of G. H. HESS, INCORPORATED, EMPLOYER and INTER- NATIONAL LADIES' GARMENT WoRSERS' UNION, AFL, PETITIONER Case No. 6-RC-31 SUPPLEMENTAL DECISION AND ORDER March 29, 1A P Upon objections filed by the Employer to Conduct of the Election and Conduct Affecting the Results of the Election' held on April 12, 1948, pursuant to a Board Decision and Direction of Election,' a hearing was held before W. G. Stuart Sherman, hearing officer, on July 21, 1948. The case was thereupon transferred to the Board. However, inasmuch as the record presented conflicting testimony, the credibility of which could best be resolved by the hearing officer from his observation of the witnesses who testified, the Board remanded the case to the Regional Director for a Report and Recommendations by the hearing officer. On November 22, 1948, the hearing officer issued his Report on Findings of Fact and Recommendations, a copy of which is attached hereto, in which he found that the Employer's objections were without merit and recommended their dismissal. Thereafter the Employer filed Exceptions to the Report. The Board has reviewed the rulings made by the hearing officer and finds that no prejudicial error was committed. The rulings are hereby affirmed except as noted below .3 The Board has considered i The Union won the election by a vote of 25 to 11. Matter of G. H. Hess, Incorporated, 76 N. L. R. B. 838. At the hearing, counsel for the Union questioned Employer witnesses as to whether they became afraid as a result of the statements allegedly made by the union representa- tives and whether such statements affected their vote. The Employer objected to this line of questioning on the grounds that it called for an answer which would violate the secrecy of the ballot and put in issue an irrelevant consideration , 1. e., the effect of the alleged coercion rather than the coercive character of the statements per se The bearing officer overruled the objection and, in the Report, made findings predicated upon the replies of the witnesses that they had not been coerced by the statements of the union representatives but in fact had exercised a free choice as to bargaining representative. We find merit in the Employer's exception . However, in view of our ultimate disposition of the issues involved herein, we find that the ruling of the hearing officer though error, was not prejudicial to the Employer. The determination of whether statements are coercive does not depend on whether they have had the intended effect, or upon the subjective state of mind of the hearer. In 82 N. L. R. B., No. 52. 463 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Report on Findings of Fact and Recommendations, the Exceptions filed by the Employer, and the entire record in this case and, unlike the hearing officer, finds merit in some of the Employer's objections. The Employer excepts to the hearing officer's findings on the ground that the Union engaged in conduct which interfered with the em- ployees' freedom of choice in the election. It points, in this con- nection, to the several acts of the union representatives characterized by it as electioneering, i. e., the distribution of leaflets in front of the plant and the possession of leaflets in the plant on the day of the elec- tion, and the visit of Lewis and Jaffee to the plant shortly before the election.' The Employer also relies on the various remarks of union representatives and employees made to prospective voters shortly be- fore the election. Among these are Lewis' remark to employee Basnett on April 9, 1948, 3 days before the election that, If you don't vote for the Union the girls will refuse to work with you"; and Lewis' request to Basnett that "When four o'clock [quitting time on the day of the election] comes, to keep from causing hard feelings, will you put your hat and coat on and walk out of the factory?" as underscored by the further statement that "There has been a lot of rough stuff at these union elections." We adopt the hearing officer's finding that the activities of the union representatives characterized as electioneering did not deviate suffi- ciently from the Board's rules for the conduct of elections to justify setting the election aside.-' Nor does the mere possession of union leaflets in the plant constitute electioneering. Similarly, except as to the statements by Lewis to Basnett, we find, as did the hearing officer, that the statements adverted to by the Employer do not constitute a unfair labor practices cases involving analogous circumstances, we have held that the test of interference , restraint, and coercion under Section 8 (1) of the Act does not turn upon the success or failure of the attempted coercion ; rather the applicable test is whether the Employer engaged in conduct which , it may reasonably be said , tends to interfere with the free exercise of the employee rights under the Act. Matter of Sewell Manufacturing Company, 72 N L R. B. 85, 87 ; enf'd. as modf'd., 172 F. ( 2d) 459 (C. A. 5), Matter of The Pure Oil Company, 72 N. L. R. B. 1, 3 and cases cited therein More- over, questions as to whether an employee's vote was in fact affected by antecedent con- duct or statements would, if permitted to be answered , lead to interferences as to how the employee voted and thus impair the secrecy of the ballot. Accordingly, we hereby overrule the hearing officer and set aside the findings in the Report predicated upon the inadmissible testimony. 9 The Employer excepts to the statement in the hearing officer's report that the Employer introduced testimony as to the visit of Lewis and Jaffee to the plant without filing a sup- porting objection . The record shows that the Employer alleged the events in question as part of objection 1. Accordingly, the hearing officer 's report is hereby corrected to con- form with this finding. 5 The Employer contends that the electioneering in this case is comparable to that found objectionable by the Board in Matter of Detroit Creamery Company, 60 N. L. R. B. 178. However, that case is clearly distinguishable on the facts. In that case , unlike this case, the union representative stationed himself during the election at a point in the plant where the employees would have to pass him on the way to the balloting room. Moreover, we further found that from this position the union representative conversed with employee's on matters related to the election. G. H. HESS, INCORPORATED 465 basis for voiding the election. We do, however, find merit in the Employer's objection to the conduct of Lewis vis ca vis Basnett and do not adopt the hearing officer's finding, in that connection, that the statements made by Lewis to Basnett "were too remote from the election to have any possible effect on the vote." Rather do we find that the utterance of Lewis to Basnett, 3 days before the election, If you don't vote for the Union the girls will refuse to work with you," conveyed a threat of economic reprisal, i. e., that Basnett would, through the efforts of the Union, be deprived of her job should she vote against the Union. We vigorously disagree with our dissenting colleagues that this statement amounted to no more than a mere expression of an intent to strike, an expression which we would hold protected as free speech just as zealously as our col- leagues. Employees do not stop to look for subtle interpretations or hidden meanings in statements which on their face are reasonably susceptible of coercive implications. The test, as this Board has recently had occasion-to note," is whether the statement was reasonably calculated to have a coercive effect on the listener. In the context in which the statement by Lewis was made, it was reasonably calculated to convey to Basnett the threat that the employee members of the Union would make it intolerable for Basnett to continue in her job. We are of the opinion that this statement was reasonably calculated to restrain and coerce Basnett in the exercise of a free choice of bargaining repre- sentative and, as such, exceeded the permissible bounds of union preelection activities. As already noted, Lewis coupled this threat of economic reprisal if Basnett should vote against the Union, with a request that Basnett not vote at all, underscoring his remarks by pointing out that, "There has been a lot of rough stuff at these union elections." 7 We are of the opinion that these additional statements were reason- ably calculated to coerce and intimidate Basnett by the prospect of bodily harm should she fail to heed the advice of Lewis to stay away from the polls. While it is true that Basnett did in fact vote, we can- not assume that less stout-hearted employees would not have refrained from casting their ballot as a consequence of such intimidatory utter- ances. Indeed, as shown above, the test is whether the conduct or statements are reasonably calculated to interfere with the employees' exercise of freedom of choice. Furthermore, we cannot assume, under the circumstances, that Basnett's vote actually represented a free and uncoerced choice for or against a bargaining representative. Matter of Smith Cabinet Manufacturing Company, Inc., 81 N. L. R. B. 886. ' The hearing officer inadvertently failed to find that, as the record shows, Lewis made this statement to Basnett. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An election serves its purpose only if it affords an opportunity for all employees to register a free and uncoerced choice of bargaining repre- sentative. Manifestly, this purpose has failed of achievement where, as here, an employee has been the object of threats of bodily harm designed to thwart the exercise of a basic right guaranteed by the Act, i. e., the right to cast a ballot for or against a bargaining representative. We would be derelict in our duty, indeed, if, under these circumstances. we did not safeguard this right. We find, therefore, that all the aforementioned statements of Lewis to Basnett shortly before the election were, by their very nature, coercive in character and so related to the election in time or other- wise as to have had a probable effect upon the action of the employees at the polls." Consequently, it cannot be said that the results of the election of April 12, 1948, reflected the employees' free and uncoerced choice of bargaining representative. For these reasons, we sustain the foregoing objection of the Employer to the conduct of the election and shall set aside the election of April 12, 1948. We shall direct a new election at such time as the Regional Director advises us that the circumstances permit a free choice of bargaining representative among the employees concerned herein. ORDER IT IS HEREBY ORDERED that the election held on April 12, 1948, among the employees of G. H. Hess, Incorporated, of Wheeling, West Vir- ginia, be, and it hereby is, set aside.' CHAIRMAN HERZOG, concurring : I join in setting this election aside for one reason and for one reason alone. But the episode that provides that reason is enough. I refer to the credited testimony that Union Organizer Lewis told Mrs. Basnett to leave the premises before the balloting began, adding that "there has been a lot of rough stuff at these union elections." The secrecy of the polling booth may in some situations protect the free exercise of will by an employee who is told, even under pain of reprisal, to vote a certain way, because no one can discover how he cast his ballot. But threats calculated to keep employees from coming to the polls to exercise the franchise may never be tolerated by this Board, whatever their source and whatever their effect. For the employee who hears an admonition not to vote at all, backed by a threat, cannot rely upon 8Matter of Lafayette National Bank of Brooklyn, New York, 77 N. L. It. B. 1210; cf., Matter of NAPA New York Warehouse, Inc., 75 N. L. R. B. 1269 ; Matter of Maywood Hosiery Malls, Inc., 64 N. L. It. B. 146. 9 Chairman Herzog, in concurring separately in the direction that the election be set aside, relies exclusively upon the single episode set forth in his concurring opinion. The Chairman finds no merit in the other ground upon which this Order is based. G. H. HESS, INCORPORATED 467 the shield provided by the secret voting machinery of the Board. If he merely ventures to approach the polling place, he will have dis- regarded the admonition and opened himself to possible reprisal. It was for this reason, among others, that this Board decided at the threshold of its history that representation elections should be de- cided by a majority of those actually voting rather than a majority of those eligible to vote.10 Otherwise employees could have been re- strained from casting their ballots in accordance with their true de- sires, by the fear that interested parties would both influence and ascertain their attitude by first urging them to keep away from the polls and then conspicuously observing whether or not they had done so. Experience in the breakdown of democratic processes throughout the world amply demonstrates the danger of permitting any individual or group to use force or threats of force to discourage men and women from appearing at the polling places to cast their votes. The fact that a ballot may be secret when cast and counted gives little comfort and less assurance to the citizen or employee who dares not cast any ballot at all. MEMBERS HOUSTON and MURDOCK, dissenting : The implications of one portion of the decision of our colleagues, Reynolds and Gray, are so disturbing that we must record our dis- agreement with them. We believe also that the single episode relied upon by the Chairman in his concurring opinion has none of the dangerous attributes with which he has chosen to endow it. We should have thought that the privilege, so firmly embedded in the traditions of trade unionism and so commonly asserted by work- ing people, to refuse to work with those who do not share their views on the value of collective bargaining would, by this time, have gained a measure of recognition. Consequently, we are at a loss now to understand how a commonplace reference to the privilege in the usual context-a preelection statement of Organizer Lewis to employee Basnett that the girls would refuse to work with her if she did not vote for the Union-suddenly assumes for our two colleagues the sin- 10 Matter of R. C. A. Manufacturing Company, 2 N. L. R. B. 158, 171 if. In rejecting proposals that majorities requisite for certification after Board elections be tested against the number eligible or the percentage of that total who came to the polls, our predecessors said in 1936: Such an interpretation defeats the purpose of the Act by placing a premium upon tactics of intimidation and sabotage. Minority organizations merely by peacefully refraining from voting could prevent certification of organizations which they could not defeat in an election. Even where their strength was insufficient to make a peaceful boycott effective , such minority organizations by waging a campaign of terrorism and intimidation could keep enoughaemployees from ,participating to thwart certification . Employers could adopt a similar strategy and thereby deprive their employees of representation for collective bargaining . (p. 176.) 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ister stature of coercion. We believe that our two colleagues, in adopting this view, have misdefined the term "coercion." They con- clude that Lewis' statement is coercive because, if its prediction were to become a reality, its reasonable consequence might involve economic disadvantage to Basnett. But such a view totally ignores the hard fact that even the clearest kind of protected concerted activity fre- quently involves economic loss to non-participants. If we are now to condemn as coercion statements of the character of Lewis' observa- tion, we must recognize that the inevitable result will be to inhibit the calling of any strike however lawful its purpose. Our colleagues leave us no alternative but to vigorously reject this startling doctrine. We find a further serious objection to our colleagues' decision. By giving a coercive aspect to Lewis' statement in these circumstances, we believe our colleagues have created a fundamental imbalance be- tween what is permitted as free speech to an employer as against what is granted to employees. For Lewis' statement, stripped of its refer- ence to personalities, amounts to a warning that a union defeat at the polls would result in a refusal to work by union adherents, the sig- nificance being, of course, economic loss to the employees. Our two colleagues say that this kind of statement is not privileged as free speech. Strangely enough, however, this Board has granted immu- nity to an employer who points out to his employees, on the eve of an election, that if they join the Union a strike might be necessary to enforce union objectives, with the result that they would suffer economic loss." Both statements-that of the Union Organizer and the Employer- involve a prediction of economic harm as a result of union activity. Yet we are given no valid basis for distinguishing between them and are asked to strike one down when we have already upheld the other. We believe this is to manifest a disparity to be rationalized. n Matter of Mylan-Sparta Company, Inc., 78 N. L. R. B. 144. In the cited case the Em- ployer included the following language in a newspaper advertisement entitled "Unions Are Objectionable Because" : Unions cause trouble for employees through strikes and production slow downs. Don't let anyone tell you unions do not strike-that is the way they make their living. Wages depend upon production . Wages must go where production goes-up or down. When unions cause slow downs, wages go down . When unions strike, wages disappear. Union never gave anyone in White County a job. Our history shows that unions caused our people to lose jobs. The Board, in rejecting the Trial Examiner's finding of coercion based on this and other comments of similar tenor , concluded that "a prophecy that unionization will ultimately lead to loss of employment is not coercive where there is no threat that the Respondent will use its economic power to make its prophecy come true ." While the cited case properly emphasizes that, had there been an accompanying threat by the Employer to use his economic power, a different result would have followed , it is clear that, in the instant case, the Union 's warning of strike action in this context, whether regarded as a use of its economic power or not , would come within the scope of Section 7 of the Act as protected activity. G. H. HESS, INCORPORATED 469 Most of what our other colleague, Chairman Herzog, has so emphati- cally said, we believe would be much more persuasive for us if the record disclosed a context of force or threats of violence. But a single and unconnected observation of the character he is concerned with remains for us quite insubstantial, and although we do not wish to be understood as approving this kind of election tactics, we are unwilling to throw out a freely selected representative because of this isolated indiscretion.112 REPORT ON FINDINGS OF FACT AND RECOMMENDATIONS Statement of the Case On April 12, 1948, pursuant to a Decision and Direction of Election of the National Labor Relations Board dated March 2, 1948, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania). Upon the conclusion of the election, a Tally of Ballots was furnished the parties in accordance with the Rules and Regulations of the Board. As to the balloting and its results, the Tally showed as follows : Approximate number of eligible voters------------------------ 36 Votes Cast for International Ladies' Garment Workers' Union, AFL------------------------------------------------------ 25 Votes Cast Against above named participating Labor Organi- zation--------------------------------------------------- 11 Challenged ballots------------------------------------------- 0 Valid votes counted plus challenged ballots-------------------- 36 The Certification on Conduct of Election was duly signed by representatives of G. H. Hess, Inc., hereinafter called the Employer ; International Ladies' Garment Workers' Union, AFL, hereinafter called the Union ; and by a repre- sentative of the Regional Director of the National Labor Relations Board, Sixth Region, hereinafter called the Regional Director. On April 19, 1948, the Employer filed objections to the conduct of the election and conduct affecting the results of the election. On May 19, 1948, the Employer filed Amended and Supplemental Objections to the conduct of the election and conduct affecting results of the election. On June 10, 1948, following an investi- gation, the Regional Director issued a Report on Objections to the Election in which he found that the Employer's objections did not raise substantial and material issues with respect to the election, and recommended that the Board overrule the objections. Thereafter, on or about June 17, 1948, the Employer filed Exceptions to the Report on Objections of the Regional Director. On July 6, 1948, the Board directed that a hearing be held on the aforesaid Exceptions and that the above entitled proceeding be referred to the said Regional Director for the purpose of conducting such hearing, and. that the said Regional Director is authorized to issue notice thereof. Pursuant to the said Order of the Board, an appropriate hearing was held, after due notice, before W. G. Stuart Sherman, the undersigned Hearing Officer, 11 See Matter of Rice-Stir of Arkansas, Inc., 79 N. L. R. B. 1333; and Matter of Glold- blatt Bros , Inc, 77 N. L. R. B. 1262, for instances of Board disposition of isolated inci- dents in unfair labor practice cases involving employers. 838914-50-voi. 82-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had been duly designated by the Regional Director . Said hearing was held at Wheeling, West Virginia , on July 21, 1948. The Employer and the Union appeared and participated . The parties were afforded full opportunity to be heard , to examine and cross -examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, the Employer moved for segregation and separation of witnesses . The Union was opposed to the motion . The motion was denied by the undersigned on the ground that no substantial reason had been adduced by the Employer to warrant the segregation . The parties waived the right to participate in oral argument or to file briefs with the Board. At the hearing , the Union moved to dismiss the Employer's Objections for lack of evidence. Ruling was reserved for the Board. The undersigned recom- mends that the Board dismiss said Objections for the reasons hereinafter set out. On September 15, 1948, the Board ordered the undersigned Hearing Officer to. prepare and file a Report on Findings of Fact and Recommendations. Upon the entire record in the case, including the Objections and Supplemental Objections filed by the Employer , and from his observation of the witnesses, the undersigned makes the following : Findings of Fact The Employer's objections , as amended and supplemented , are in substance as follows : (1) The Union engaged in electioneering at or near the voting place in the plant on the day of the election in violation of the election rules of the Board. (2) The Union Organizer , while engaged in handing out hand bills to em- ployees on the morning of the election , crowded one of them at the door and tried to force her to accept a circular. (3) The Union 's election observer ( Lulu Williams ), an employee, had a supply of the aforementioned circulars in her possession in the shop on election day, in full view of other employees , and refused to put them away until after three requests made by her forelady. (4) The Union Organizer , Joe Lewis , having been advised that a certain employee was unfavorable to the Union , told said employee that he expected her to leave the plant at four o'clock on election day. As said employee was departing from the plant after the election , the said Lewis told her the girls in the plant would not work with her. Said employee ( Helen Basnett) was also told , prior to said election , that if she voted against the Union, the girls in the shop would not work with her. (5) Employees were informed by Union members and representatives, orally and in writing, that if they did not sign a Union card by the day of the election , they would have to pay a fine of $5.00. (6) Employees were told by representatives of the Union that the observer for the Union would know how the votes were cast and which employees voted for the Union and which employees voted against it. (7) During the organizational period of the Union , its representatives mis-represented to the employees the profits made by the Employer in the Wheeling plant, when they told the employees that the Employer had made $55,000 00 last year in said plant; whereas these were the figures which were furnished to the National Labor Relations Board to show a difference G. H. HESS, INCORPORATED 471 between the cost of raw materials at said plant and the value of the finished products. (8) Union representatives falsely represented to the employees that the Garment Workers were earning as much as $2.50 per hour, thereby implying that the wages of the Employer were grossly inadequate and holding out to the employees the hope that the Employer would 'pay wages far in excess of what it is now paying. (9) Employees were informed that if the Union won the election, it would see that Ruth Cotts, the forelady, would be discharged, and that it could force her discharge by controlling the sale of materials to G. H. Hess, Inc. Re Objection 1 Blanche Morris, an employee who had been absent from the plant because of illness, testified that she was approached by Joe Lewis, Union organizer, at 3: 55 p. in. on April 12, 1948, and that Lewis showed her an N. L. R. B. Election Notice and indicated to her how to vote "No" or "Yes" by pointing to the respective boxes on the sample ballot on the notice. Then he asked her to vote for the Union. Retha Al. Weaver, an employee, testified that Lewis was standing inside the entrance to the plant on April 12, 1948 at 6: 45 a. in. and that he came out of the door as she and other girls entered and that lie gave her a union circular and said, "Vote for the Union." Grace A. Dickson, an employee, testified that at 7: 20 a. in., she saw Lewis "standing on the steps close to the door when I went in and he handed me a yellow (Union) handbill," and Lewis told her that he hoped she was voting for the Union. She also testified upon being recalled to the witness stand that Letha Hall, an employee, handed a circular to her in the plant at 6: 55 a. in. on April 12, 1948 and said, "I hope you are with us." Grace Nicola testified that she saw Lewis on landing in front of plant doors when she came to work on April 12th, and that he handed her a sample ballot and said, "Good luck to you." Ruth Cotts, forelady, testified that she observed Lewis in front of the factory on April 12th and that he handed a circular to her. She said, "No, thanks," and walked in. The above testimony is uncontradicted. The undersigned finds that Lewis, Union representative, and Hall, an employee of Hess, distributed union litera- ture to the employees of Hess on the day of the election, April 12, 1948, before the hours of the election, and that Lewis asked employees to vote for the Union. There is no evidence that the area near the entrance to the Employer's building had been indicated as a "no electioneering zone." There is no evidence that there was any violence in connection with the Union's organizational campaign at the Employer's plant, and there is no evidence that there was any electioneering during the polling hours on April 12, 1948, within close proximity of the polling place. The undersigned finds that the activity and conduct of the Union's representative and Hall, an employee, as described above, do not constitute such substantial deviations from the Board's Rules for the conduct of elections as to justify the setting aside of the election Re Objection 2 The sole bit of testimony relating to the second objection, namely that Lewis crowded one of the employees at the entrance , is from Wilma Klymuk, a clerical 'In re : Arteraft Hosiery Co , Meridian Div, 73 N. L. R B. 808. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee, who testified that Lewis was standing in front of the door, right in front of the steps, on the platform, and that she couldn't get to the doorway. She further stated that she had an umbrella and poined it at his face. He offered her a circular but she refused to accept it' Lewis testified that it was raining on the morning of April 12th and that he went up on the steps to get out of the rain. Lewis testified that he was not blocking the doorway and that all the girls were holding their umbrellas downward as they were unfolding them preparatory to entering the building. None of the other witnesses testified that Lewis blocked the entrance to the building. Forelady Cotts testified that no employees were prevented from coming to work on election day. There was no evidence to indicate that Klymuk reported the alleged incident immediately to her superiors or made any complaint about it to them. The undersigned finds that Lewis did not block the entrance to the Employer's plant on April 12, 1948. Assuming arguendo that Lewis had temporarily and inadvertently blocked the doorway because of the small size of the platform lead- ing to the entrance, the undersigned is of the opinion that such conduct would not warrant the setting aside of the election. Re Objection 3 With respect to the third objection, Wilda Immel, factory supervisor, testified that on April 12, 1948, she observed some of "these (union) circulars" on the side of the machine of the girl who worked next to Lulu Williams. Cotts, forelady, came to Immel and asked if the presence of the circulars was permissible there on the day when the election was to be held. Immel told Cotts to instruct Williams to remove the circulars. Neither Immel nor Cotts alleged that Williams was distributing the circulars in the plant on the day of the election. Cotts corrobo- rates Immel's testimony in this regard and further alleges that she had to ask Williams on three occasions to put away the circulars. Cotta concedes that the circulars were so folded that the printed matter was inside. Williams in her testimony admitted that she had union circulars (folded) with her in the plant on April 12th and explained her delay in concealing the circulars by stating that her handbag had a broken clasp and that she thought the concealing of the folded circulars under her handbag would be sufficient to satisfy the forelady. However, Williams finally picked up the folded circulars and jammed them into her handbag. There is no testimony to the effect that Williams distributed any of the circulars to any of the employees on the day of the election. The undersigned finds that Williams did have union (folded) literature in her possession at the Employer's plant on April 12, 1948 and that she did not distribute said literature to employees in the Employer's plant on April 12, 1948. In the opinion of the undersigned, the mere possession of union literature (folded with the printed matter on the inside) does not constitute a valid ground for setting aside the election. Re Objection 4 C. M. Basnett, husband of Helen Basnett, testified that Lewis came to his home on Wednesday, April 7, 1948 and asked him to tell his wife that if she didn't vote for the Union-to put on her hat and coat and walk out of the factory. 2 Klymuk testified that she was an eligible voter, but the eligibility list did not contain her name. G. H. HESS, INCORPORATED 473 According to the testimony of Helen Basnett , an employee, Lewis visited her home on April 9, 1948, three days prior to the election , and after talking with her about the Union campaign and the impending election , and after learning from her replies that she was unfavorable to the Union , he requested that she should leave the plant at four o 'clock p. in. (quitting time ) on the day of the election to keep from causing hard feelings with the rest of the girls . She also testified that Lewis told her that if she voted against the Union, the girls would refuse to work with her. C. M. Basnett corroborated this last statement of his wife. Basnett also testified that after she had voted and had departed from the building on April 12, 1948, she met Lewis on the outside, in front of the plant, and he asked her if she had voted "Yes." She replied in the negative ; whereupon Lewis told her that the girls were going to refuse to work with her. She replied, "Let them quit and go home, that is what I would do if I didn't want to work with them." She further stated that the statements made by Lewis did not influence her vote. Lewis did not deny making the above statements or conduct attributed to him by Basnett. The undersigned finds that Lewis did visit the home of Basnett on April 9, 1948 and did make the statements attributed to him (as described above) by Basnett. The undersigned also finds that Lewis met Basnett in front of the Employer's plant on April 12, 1948 after she had voted and that he told her that the girls were going to refuse to work with her after she had advised him that she had voted against the Union. The undersigned finds that Lewis' statements to Basnett on April 9, 1948 did not influence the way in which she voted in said election. In the opinion of the undersigned, such statements by Lewis on or before April 9, 1948 were too remote from the election to have any possible effect on the vote. Therefore, said statements do not warrant setting aside the election' Be Objection 5 According to the testimony of Retha M. Weaver, an employee , Mrs. Jessie Murphy, an employee, approached her machine at the plant about a week or two weeks before the election and said, "Well , we are having the Union and you will have to pay $5.00 to join it, and you will not be allowed to work unless you do join it." Murphy was not an official or representative of the Union . She did not testify and the testimony of Weaver is uncontroverted . There is no evidence that any Union representative made such a remark. The undersigned finds that Murphy made the above statement attributed to her by Weaver. In the opinion of the undersigned, such remarks by Murphy were not in such close proximity to the election as to have had any harmful effect upon the employees' free choice at the polls.` Weaver further testified that the statements attributed to Murphy did not make her join the Union and did not affect her vote. The Board has held such statements not to be coercive to the point of requiring the election to be invalidated. Be Objection 6 According to the testimony of Grace Nicola , an employee, Lewis told her some- time before the election , "We will know how you all voted-we could find out." 8 In Re: Maywood Hosiery Mills, Inc., 64 N. L. R. B. 146. 4 In Re : Maywood Hosiery Mills, Inc., Supra . NAPA New York Warehouse, Inc., 76 N. L. R. B. 119; Southeastern Clay Company, 73 N. L. R. B. 614. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequently, Lulu Williams and Letha Hall, employees, advised her that they could tell how the employees voted by the way the votes were put in the box. This incident took place a few days before the election. She further stated that Williams came to the cafe where certain of the em- ployees were gathered after the election on April 12, 1948, and Williams an- nounced the results of the election and further stated that the ballot box was small and the ballots were crowded in it and, therefore, they didn't lay the way they were supposed to and she couldn't tell who voted "yes" and who voted "no." The testimony of Nicola on this point is not corroborated. Williams denied the statements attributed to her by Nicola and further explained her remarks at the restaurant after the voting by stating that she was appointed as a tally clerk to count the "no" votes by the Field Examiner, but because of her excitement she started to tally the "yes" votes ; then realizing her error, she called it to the attention of the Field Examiner, who started the tally of ballots over again. Lewis categorically denied making said statement to any individual or a group, either at a Union meeting or elsewhere. He admitted saying "Good members would vote for the Union." He also stated that there was no way in which he could find out how members voted. Brookie Barnes, an employee, who attended most of the Union meetings, de- nied ever hearing Lewis, Williams or anyone else make a statement to the effect that they (the Union) would know how the people voted. Barnes, who was at the cafe after the election, denies hearing Williams make the statement that she lost count of the ballots indicating the way in which the employees voted because the box was too large or too small. She corroborates Williams' version of this incident at the cafe. Gertrude M. Wagenhofer, an employee, who attended most of the Union meet- ings, denies that anyone stated at the Union meetings or any other place that they (Union) would know how the employees voted in the secret election of the National Labor Relations Board at the plant. She attended the meeting in cafe after the election and denies hearing Williams make any statement to the effect that she (Williams) could not tell how people voted because the box was of such a size that the votes got mixed up. It is also significant that G. H. Hess made a speech to his employees shortly before the election and Nicola admits that among other things, Hess said, "You simply mark the ballot with an X to indicate your wishes and your name will not appear on the ballot-you can, therefore, see that the election will be conducted in a fair and impartial manner, in the true American way-to express your wishes-without any coercion." The handbills distributed by the Union stated that the election would be a "United States Government Secret Ballot." Nicola further testified, on cross-examination, that it was "a free American election" and that she voted in the manner that she chose to vote for herself. She ad- mitted that there was no pressure brought to bear on her that affected her choice in the voting. The Union circular contains the following language, "Today you go to the polls in a U. S. Government secret election" (emphasis supplied). The undersigned finds that Lewis, Union representative, and Williams and Hall, employees, did not make the statements attributed to them by Nicola. Therefore, the Sixth Objection lacks merit. Re Objections 7 and 8 Mr. and Mrs . Basnett testified that Lewis told them, "Mr. Hess earned $55,000.00 last year." Nicola testified that she thought Lewis told her that Hess Company had made $55,000.00 last year. Mrs. Basnett testified that Lewis told her, "We'll double your wages." G. H. HESS, INCORPORATED 475 Blanche Morris, an employee, testified that about a week before the election, Lewis told her if they put the Union through-it would be better for them and they would be making more money. Lewis did not deny making the above statements attributed to him by the Basnetts, Nicola and Morris. The undersigned finds that Lewis made the statements as given above by the Basnetts, Nicola and Morris. However, in the opinion of the undersigned, such statements partake of the nature of "sales talk" and union campaign propaganda . Such campaign remarks do not constitute valid grounds for invalidating the election 6 Re Objection 9 C. M. Basnett, Helen Basnett, Blanche Morris, Grace Nicola testified that Lewis told them that the Union was going to get rid of Ruth Cotts as forelady after the Union got in the plant. No testimony was introduced to support the latter part of the ninth objection with reference to the Union's control over materials and its connection with the Union's ability to effectuate the removal of Cotts as floorlady. Lewis denies making the statements attributed to him by the Employer's wit- nesses in the paragraph above. Retha M. Weaver, an employee, also testified that Lulu Williams, an employee and very active protagonist for the Union, told her that she (Williams) was going to get rid of Ruth Cotts as forelady, first. Williams denied making said statement. Barnes denies hearing anyone say that if the Union got in (plant), they were going to get forelady discharged. Wagenhofer gave similar testimony. Basing his opinion upon his observation of the witnesses, the undersigned con- cludes and finds that Lewis did make the statement to the effect that the Union was going to get rid of Cotts as forelady after the Union came into the plant. The undersigned also finds that Williams did not make a similar statement to Weaver. However, in the opinion of the undersigned, the statement of Lewis and Williams (assuming arguendo that Williams made such statements) are not of such a coercive character as to interfere with the employees in having their free and untrammelled choice at the balloting place c The Employer introduced additional testimony pertaining to the election without filing additional objections. Immel, one of the supervisors, testified that on April 12, 1948 at about 3: 45 p. in., she was called from the middle of the factory by Lewis, who was in the clock room. Lewis was accompanied by Jaffee, a Union representative, and the Field Examiner was also present in the clock room. Lewis and Jaffee requested to talk to Williams, who had been designated by the Union as its observer in the election. Cotts, forelady, came to the clock room at this time and both Cotts and Immel told Lewis and Jaffee that they would have to leave the premises because of management's orders that no union representatives were to be permitted on company premises on day of the election. In the meantime Cotts went back in the factory and called Williams. Lewis and Jaffee waited in the clock room in the presence of Immel and the Field Examiner. Shortly thereafter, Cotts returned with Williams. Lewis and Jaffee talked to her briefly in the presence of Cotts, Immel and the Field Examiner. 5 In Re : General Armature and Manufacturing Co., 71 N. L. R. B. 413 ; Kroeder-Reubel Company, 72 N. L. R. B. 240; Maywood Hosiery Mills, Inc, Supra. Champion Spark Plug Co., 80 N. L. R. B. 47. 6 In Re : Hroeder-Reubel Company, cited supra. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They told her not to sign any papers or count any ballots after the election until they were present. Then they departed from the plant and waited in their auto which was parked on the public street near the plant. They left the building before the opening of the polls. Cotts corroborates Immel's version of the incident. The record indicates that the clock room is a small ante-room adjacent to the main sewing room of the plant. The version of the incident given by Lewis and Jaffee agrees substantially with that given above by Cotts and Immel. However, Jaffee testified that he went to the plant on April 12th at 3: 45 p. in. for the purpose of examining the polling place. Cotts came in the room then and told them to leave. They then asked to talk to the Board Agent. He approached them and they requested his permission to inspect the polling place. Cotts and Immel interposed and said that the Employer would not allow them to do so. At this point Jaffee requested to talk to Williams and Cotts went out and brought her into the clock room. Jaffee testified that he and Lewis were in the plant for about five minutes and that while there "they were not left alone for a second." There is no evidence that Lewis and Jaffee talked to any eligible voter except Williams, the Union observer, and no evidence that they engaged in electioneer- ing during their brief visit in the factory. The undersigned finds and concludes that Lewis and Jaffee did visit the Em- ployer's plant at 3: 45 p. in on April 12, 1948 for the purpose of inspecting the polls, were denied permission to do same by Cotts and Immel, and that they talked briefly to Williams in the presence of Cotts, Immel and the Field Examiner, after which they departed from the Employer's plant without talking to any other employees or engaging in any electioneering. In the opinion of the undersigned, such conduct on the part of Lewis and Jaffee as described above does not constitute such substantial deviations from the Board's Rules for the conduct of elections as to warrant the setting aside of the election. On all the above, the undersigned concludes and finds that the Employer's Ob- jections to the election are without merit and are not grounds for setting aside said election. RECOMMENDATIONS Upon the basis of the above findings of fact, and upon the entire record in the case, the undersigned recommends that the National Labor Relations Board dis- miss the objections for lack of merit. Any party may, within five days of receipt of this Report, file with the Board in Washington, D. C. an original and six copies of exceptions . Immediately upon the filing of such exceptions , the party filing the same shall serve a copy thereof upon each of the other parties , and shall file a copy with the Regional Director. W. G. SMART SHERMAN, Hearing Officer. Dated : November 30, 1948.