Merrimac Hat Corp.

In the Matter Of MERRIMAC HAT CORPORATION and UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, AFL Case No. 15-C-1368.-Decided July 26,1919 DECISION AND ORDER On February 21, 1949, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (5) and, deriva- tively, of Section 8 (a) '(1) of the amended Act, 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. He also found that the Respondent had not violated Section 8 (a) (3) of the amended Act, as alleged in the complaint, and recommended dismissal of that allegation. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report, and the Respond- ent submitted a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications.2 ' Pursuant to the provisions of Section 3 (b) of the Act , as amended, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Houston and Murdock]. 2 The Intermediate Report contains certain misstatements of fact and inadvertences,. none of which affects the Trial Examiner 's ultimate conclusions or our concurrence in such conclusions . Accordingly , we make the following corrections : ( 1) the form number of the consent election agreement involved in the instant case is "N . L. R. B. 651 (12-1- 44)," instead of "N. L. R . B. 651 ( 11-1-46 )" ; (2) the Trial Examiner erroneously finds at one point in the Intermediate Report that Field Examiner Hall conducted his investi- gation from November 20 to 22, 1946 , inclusive, whereas Hall's investigation extended: through November 23, 1946; ( 3) in the "resume of events," the Trial Examiner in- advertently fails to state that the Regional Director , as part of his Report on Objections, dated June 6, 1947, designated the Union as the statutory representative of the Re- spondent's employees in the agreed unit; and ( 4) in the excerpt from Chairman Herzog's- 85 N. L. R. B., No. 66. 329 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (5) and 8 (a) (1) of the Act by refusing, on and after July 24, 1947, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit.3 As found by the Trial Examiner, the instant case had its genesis in a consent election agreement, entered into by the Union and the Respondent, and approved by the Regional Director on August 9, 1946. Pursuant to the terms thereof, an election was held on August 15, 1946, among the employees in the agreed unit. The Union lost and thereafter filed timely objections to conduct affecting the results of the election. On January 3, 1947, following an, investigation, the Regional Director issued his Report on Objections, finding merit in two of the Union's allegations, and setting aside the election. The Re- spondent's motion for reconsideration was denied by the Regional Director on January 15, 1947. Subsequently, on March 25,1947, the Regional Director conducted a second election, using a current pay-roll eligibility date. In this election, the Union secured a majority vote. The Respondent there- upon filed objections to the conduct of the election and to conduct affecting the results of the election. After investigation, the Regional Director, in his second Report on Objections, dated June 6, 1947, found the Respondent's objections to be without merit and designated the Union as the statutory representative of the employees concerned. The Union shortly thereafter requested a bargaining conference with the Respondent, which the Respondent refused on July 24, 1947. As grounds for its refusal to bargain, the Respondent asserts that the Regional Director acted unlawfully principally in: (1) setting aside the first election; (2) fixing a current pay-roll eligibility date for the second election,; (3) failing to conduct a hearing on the various objections raised by the Respondent; and (4) designating the Union as the bargaining representative after the second election. It further contends, as to these matters, that the Regional Director's action was vulnerable because he was arbitrary and capricious; exceeded his authority under the agreement; and acted on the basis of the investi- gation of a biased and prejudiced field examiner. With respect to the setting aside of the first election, we agree with the Trial Examiner that the Regional Director did not act arbitrarily, capriciously, or beyond his authority in considering conduct affecting observation in the Fisher Governor case , the phrase "to extend " should read "to hesitate to extend." s In substantial agreement with the finding of the Trial Examiner , to which no excep- tion was taken, we find that all production employees of the Respondent at its Green- ville, Alabama , plant, excluding office and maintenance employees, and all supervisors as defined in the amended Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 ( b) of the Act, as amended. MERRIMAC HAT CORPORATION 331 the results of the election,' and in finding such conduct to be objection- able. As the Trial Examiner pointed out, the interference found by the Regional Director was twofold, consisting of: (a) the Respond ent's discriminatory enforcement of its nonsolicitation rules by pro- hibiting activities on behalf of the Union on company time while, con- currently, permitting anti-union conduct; and (b) its compulsion of employees on the eve of the election and during working time to listen to a speech on self-organization by a company official in the plant. (a) We agree with the Trial Examiner's conclusion that the Re- gional Director's determination as to the discriminatory enforcement of the nonsolicitation rules was not arbitrary or capricious. How- ever, we do not agree with the Trial Examiner that, in making this determination, the Regional Director committed an "error in judg- ment." In our opinion, this determination by the Regional Director,, which followed an investigation of the working rules, was, contrary to the finding of the Trial Examiner, adequately supported by the evi- dence before him. We are mindful in this respect of the statement in the Respondent's answer to the Union's objections, dated November 22,. 1946, that "No privileges were allowed anyone to visit or to discuss anything other than the duties of their job," and of Superintendent Boucher's sworn statement indicating that the posted nonsolicitation rules were being enforced. However, the record discloses that the Regional Director obtained statements from numerous employees to the effect that the Respondent failed to invoke these rules on August 14 and 15, 1946, immediately before the first election, to prohibit employee Pitts from engaging in known antiunion conduct on com- pany time. The Regional Director at the same time had before him the affidavit of employee Woodrow Wilson indicating that while Pitts was engaged in antiunion activity, Wilson requested, but was denied, permission by his foreman to engage in "talk for the union." 5 Under all the circumstances, we find that a reasonable basis existed for the Regional Director's determination that the nonsolicitation rules were discriminatorily applied by the Respondent. However, even assum -ing that the Regional Director comited an "error in judgment" in this determination, we find, for the reasons stated by the Trial Exam- iner, that the determination cannot, in any event, be held to be arbi- trary or capricious. 4 In Matter of McMullen Leavens Company, 83 N. L. R. B. 948, we recently con- sidered and denied a similar contention addressed to the scope of the consent election agreement and the Regional Director's authority thereunder. 'We note that other testimony, although not before the Regional Director , confirms the propriety of his conclusion as to the Respondent 's prohibition of activity on behalf of the Union. Vice-President Beeland admitted at the hearing that, shortly before the first election , he called in employee A. D. Parker , who had been active in the Union's organizational efforts, and directed him to cease such conduct on company time, because "it was in violation of the rules." ;332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) For the reasons detailed by the Trial Examiner, we find that the Regional Director's conclusion that the speech by a company offi- -cial to a forced audience constituted interference with the free choice .of a bargaining representative, was not arbitrary or capricious. Like the Trial Examiner, we find it unnecessary to consider the state of the law subsequent to the Regional Director's determination. Our con- concern is whether he acted arbitrarily or capriciously at the time of his investigation and report. In this regard, we find, as did the Trial Ex- aminer, that the determination was then made in accordance with exist- ing Board principles, and that the application of those principles to the facts in this case was proper. In view of the foregoing, and for the additional reasons more'com- pletely outlined by the Trial Examiner,- we find that the Regional -Director did not act arbitrarily, capriciously, or beyond his authority in setting aside the first election.? With reference to the use of a current pay-roll eligibility date for the second election conducted on March 25, 1947, the Respondent argues that the voting eligibility period was fixed by paragraph 3 .of the consent election agreement,8 and that the use of a current pay roll was "contrary to the terms of the Agreement." We do not agree. We recently had occasion in the McMullen Leavens case 9 to consider the converse of this question, viz, whether a Regional Director acted .arbitrarily and capriciously, under a similar consent election agree- ment, in using the original pay-roll date to govern eligibility to vote in the second election. Although we sustained the Regional Director's :action, we there pointed out : . . . as the agreement is susceptible of varying interpreta- tions, we cannot say that the Regional Director, in resolving the issue, as the parties expressly authorized him to do, was arbitrary or capricious in his determination to employ the original pay-roll date . . . And this is so, even though the use of a current 6 As to the alleged bias and prejudice of Field Examiner Hall , we find, like the Trial Examiner , that the Respondent has failed to adduce any persuasive evidence to establish -this contention. 7 The Respondent 's contention that the Regional Director 's reliance , in part, on certain unsworn statements of employees was improper is clearly without merit . The Board's Rules and Regulations prescribe no specific method to be followed by the Regional Director in the conduct of his investigation . Although , as the Regional Director testified at the hearing, it is desirable in such investigations to obtain sworn statements , the use of un- sworn testimony is not prohibited . Accordingly , we find, as did the Trial Examiner, -that the Regional Director did not act arbitrarily or capriciously in according probative weight to the unsworn statements. 8 Paragraph 3 of the agreement reads in pertinent part as follows : "The eligible voters shall be those employees included within the Unit, who appear on the Employer's pay roll for the period indicated below. . . . Pay-roll period for eligibility-Week ending .July 26 , 1946." 9 Matter of McMullen Leavens Company, 83 N. L. R. B. 948. MERRIMAC HAT CORPORATION 333 pay roll would have had the additional advantage of being con- sistent with Board policy in directed elections. In the absence of fraud, misconduct, or such gross mistakes as imply bad faith on the part of the Regional Director, we deem his determination to be final in consent elections of this character, even though we might have reached a different conclusion. The reasoning in the McMullen Leavens decision is dispositive of the Respondent's contention herein. Where, as here, the Regional Di- rector used a current pay-roll eligibility date in the second election, which action was consistent with Board policy in directed elections, such determination, a fortiori, was not improper and we so find. We find equally without substance the Respondent's allegation that the Regional Director acted unlawfully in refusing to conduct a hear- ing upon the various contentions raised by it after the first and second 'elections. In view of the terms of the consent election agreement, the full opportunity afforded the Respondent to submit any evidence which it desired during the investigation of the first election by Field Examiner Hall and, during the investigation of both elections by Field Examiner Ormsbee, and for the additional reasons set forth in the Intermediate Report, we find that the Regional Director's refusal to conduct a hearing did not constitute a denial of due process, nor was such refusal arbitrary or capricious.lo In these circumstances, we find that the Regional Director acted properly in designating the Union, after the second election, as the exclusive bargaining representative of the Respondent's employees in the unit found appropriate above. Accordingly, as the Respondent admittedly refused to bargain with the Union and because the grounds asserted by the Respondent for its refusal are, upon the entire record, without merit, we find that the Respondent has violated the Act. More particularly, we find that on July 24, 1947, and thereafter, the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the unit heretofore found to be appropriate, and that the Respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (5) and 8 (a) (1) of the Act.u 10 In its exceptions , the Respondent apparently contends that the Board erred in re- fusing to grant its request for consideration , de novo, of the determinations of the Re- gional Director . We find no merit in this contention . As we have frequently held in matters relating to consent elections , we will disturb the Regional Director 's determina- tion only when pertinent to the issues presented in an unfair labor practice proceeding' and then on the sole ground that the Regional Director's rulings were arbitrary or ca- pricious . See Matter of McMullen Leavens Company, supra, and cases cited therein. "There is some indication in papers filed with tae Board that, since the issuance of the Intermediate Report herein , the Respondent may have engaged in collective bar- 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10 (c> of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Merrimac Hat Corporation, Greenville, Alabama, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Hatters, Cap and Millinery Workers International Union, AFL, as the exclusive representative of all production employees at the Respondent's Green- ville, Alabama, plant, excluding office and maintenance employees,. and all supervisors as defined in the amended Act. (b) Interfering in any other manner with the efforts of United Hatters, Cap and Millinery Workers International Union, AFL, to bargain collectively with it on behalf of the employees in the aforesaid appropriate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Hatters, Cap and Millinery Workers International Union, AFL, as the exclusive bargaining representative of all production employees at the Re- spondent's Greenville, Alabama, plant, excluding office and mainte- nance employees, and all supervisors as defined in the amended Act, with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; (b) Post at its plant in Greenville, Alabama, copies of the notice attached hereto, marked "Appendix A." 12 Copies of such notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (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; gaining negotiations and entered into a collective bargaining contract with the Union. However, on this state of the record, we shall enter our usual order, subject to its modification , at the compliance stage, to accommodate to any changed conditions not now clearly appearing. "In the event this Order is enforced by decree of a United States Court of Appeals, •there shall be inserted in the notice before the words, "A DECISION AND ORDER," the words, "A DECREE OF TIIE UNITED STATES COURT OF APPEALS ENFORCING." MERRIMAC HAT CORPORATION 335 (c) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminatorily discharged A. D. Parker, be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WVE WILL BARGAIN collectively upon request with UNITED HAT- TERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, AFL, as the exclusive representative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, or other terms or conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production employees at our Greenville, Alabama, plant, excluding office and maintenance employees, and all supervisors as defined in the amended Act. WE WILL NOT in any manner interfere with the efforts of the above-named union to bargain collectively with us, or refuse to bargain with said union as the exclusive representative of the employees in the bargaining unit set forth above. MERRIMAC HAT CORPORATION, Employer. Dated----------------- By --------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT C. Paul Barker, Esq. and Max Schwartz, Esq., for the General Counsel. Joseph Jacobs, Esq.. and Miss Carmen Lucia, of Atlanta, Ga., and Frank Cynew- ski, Esq., of Amesbury, Mass., for the Union. Alexander E. Wilson, Jr., Esq. and G. Maynard Smith, Esq., of Atlanta, Ga., and Cah in Poole, Esq., of Greenville, Ala., for the Respondent. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon an amended charge duly filed by United Hatters, Cap and Millinery Workers International Union, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board, by the Regional Director of the Fifteenth Region (New Orleans, Louisiana ), issued a complaint dated April 16, 1948, against Merrimac- Hat Corporation, Greenville, Alabama, herein called the Respondent, alleging that the Respondent had engaged in, and was engaging in, unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and ( 7) of the National Labor Relations Act, prior to amendment, herein called the Wagner Act, and of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respond- ent and the Union. With respect to the unfair labor practices, the complaint, as amended,' alleged in substance that (1) all production employees of the Respondent, excluding. office and maintenance employees and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Wagner Act and the Act; (2) on or about March 25, 1947, and at all times there- after, a majority of the employees in the foregoing unit designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent; (3) at all times since March 25, 1947, the Union has been the representative for the purposes of collective bargaining of a majority of employees in the foregoing unit and, by virtue of Section 9 (a) of the Wagner Act and the Act, has been the exclusive representative of all employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment; (4) "beginning on or about July 23, 1947, and at all times thereafter" the Union requested the Respondent to recognize it as the statutory representative of its employees in the afore- mentioned unit and to bargain collectively with it in respect to rates of pay, wages, hours of employment , and other conditions of employment ; and (5 ) begin- ning on or about July 24, 1947, and at all times thereafter, the Respondent refused and failed and is now refusing and failing to recognize the Union as the exclusive bargaining representative of its employees in the previously mentioned unit and to,bargain with the Union as the exclusive representative of its employees in the afore-mentioned unit. The complaint also alleged that on April 8, 1947, the Re- spondent discriminatorily discharged A. D. Parker and thereafter failed and re- fused to reinstate him because of his membership in and activities on behalf of the Union and because he engaged in concerted activity with other employees for the purposes of collective bargaining and other mutual aid and protection. The complaint alleged that by the foregoing conduct the Respondent engaged in vio- lations of Sections 8 (1), (3), and (5) of the Wagner Act and of Section 8 (a) (1), (3), and (5) of the Act. On April 26, 1948, the Respondent filed its answer, in part admitting certain allegations of the complaint, but denying that the Union had ever been designated This designation will also be used to refer to the attorney on the staff of the General Counsel who presented the case in his behalf. 2 At the hearing, the complaint was amended to correct a typographical error as to the date of Parker ' s alleged discriminatory discharge and also in certain minor respects. MERRIMAC HAT CORPORATION 337' or selected by the Respondent's employees in an appropriate unit as their statutory- representative, that the Union has at any time been the statutory representative of the Respondent's employees, and that the Respondent had engaged in any unfair labor practices. On May 19, 1948, the Respondent filed with the Board and the General Counsel a petition for written consent for the Regional Director of the Fifteenth Region to appear and produce at the hearing in the instant proceeding all files, reports, correspondence, affidavits, memoranda, and records of the Regional Office and the Board relating to Case No. 15-R-1815, and to provide appropriate agents of the Regional Office to testify as to the accuracy and contents of such records. On the same date, the Respondent filed a motion with the Board for a consoli- dation of Case No. 15-R-1815 with the instant proceeding. Thereafter, C. Paul. Barker, Chief Law Officer of the Fifteenth Region, filed statements in opposition to both motions. On May 26, 1948, the Board denied the request for the consoli- dation of the instant proceeding with Case No. 15-R-1815 "because the later is- now closed" and also denied the petition for written consent for the Regional Director to appear and produce records relating to the representation proceed- ing "because the Regional Director is under the general supervision of the General Counsel." On May 26, 1948, Robert N. Denham, General Counsel of the Board, denied the petition for written consent for the Regional Director to appear and testify and produce records of the Regional Office for the reason, that "no showing has been made that the evidence contained in such records- is not otherwise available to Respondent without such permission nor essential presently to preparation of adequate defense." Pursuant to notice, a hearing was held from May 26 to June 2, 1948, at Green- ville, Alabama, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by. the Chief Trial Examiner. The General Counsel, the Union,, and the Respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the outset of the hearing, the Respondent renewed its motion for the con- solidation of Case No. 15-R-1815 with the instant proceeding. The undersigned denied the motion. During the course of the hearing, counsel for the Respondent moved that the testimony of employee Mary Ballard be stricken. Ballard's testimony was of- fered by the General Counsel for the purpose of impeaching the testimony of Foreman Lane Harrison. The undersigned reserved ruling upon the motion so that he might read Harrison's testimony to determine the admissibility of Ballard's testimony. The motion to strike the testimony of Ballard is hereby denied. At the conclusion of the hearing, the undersigned granted a motion by the General Counsel to conform the pleadings to the proof as to dates, spelling, and minor variances. The Respondent moved that the complaint be dismissed. Ruling was reserved upon the motion. Consistent with the findings and con- clusions hereinafter fully detailed, the motion is in part granted, insofar as it relates to the complaint's allegations of unfair labor practices on the part of the Respondent arising from Parker's discharge; with respect to the remaining allegations of the complaint, the motion is hereby denied. Upon the conclusion of the hearing, the undersigned advised the parties that they might argue before, and file briefs or proposed findings of fact and con- clusions of law, or both, with the Trial Examiner. The parties waived oral 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument. On August 30, September 3, and September 7, 1948, respectively, the Respondent, the General Counsel, and the Union filed individual briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Merrimac Hat Corporation, a Massachusetts corporation with its principal office at Amesbury, Massachusetts, operates a plant at Greenville, Alabama, where it is engaged in the manufacture of wool hat bodies and men's hats. Dur- ing the past year, in the. course and conduct of its business, the Respondent pur- chased raw materials and supplies valued in excess of $1,000,000, of which approximately 75 percent was transported from points outside the State of Alabama to its plant at Greenville, Alabama. During the same period, the Respondent manufactured and sold finished products valued in excess of $1,000,- 000, of which approximately 75 percent was sold and shipped to points outside the State of Alabama from its plant at Greenville, Alabama. The Respondent concedes for the purpose of the instant proceeding that it is subject to the Board's jurisdiction. II. THE LABOR ORGANIZATION INVOLVED United Hatters, Cap and Millinery Workers International Union is a labor organization affiliated with the American Federation of Labor, admitting em- ployees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. The representation proceeding, the elections, resrvme of events On July 25, 1946, the :Union filed a 9 (c) petition with the Board for certifica- tion as the statutory representative of the Respondent's production employees. In August 1946, the Union and the Respondent executed an "Agreement for Consent Election," herein called the Agreement, which John F. LeBus, Regional Director of the Board's Fifteenth Region, formally approved on August 9, 1946. The Agreement was a form document in use by the Board at the time and was designated as form "NLRB-651 (11-1-46)." The following are sections of the Agreement pertinent to the issues of the instant proceeding : 1. SECRET BALLOT.-An election by secret ballot shall be conducted under the supervision of the Regional Director, among the employees in the Unit defined below, at the indicated time and place, to determine whether or not the employees desire to be represented by (one of) the undersigned labor organization(s). Said election shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election. Time and place of election.-The election shall be conducted on a date designated by the Regional Director within thirty days after approval of this agreement. B MERRIMAC HAT CORPORATION 339 2. THE UNIT.-All production employees of the Merimac Hat Corporation at Greenville, Alabama, except for all office and maintenance employees and all supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees or effectively recommend such action (herein called the Unit) constitute a unit appro- priate for the purposes of collective bargaining. 3. I L1oiB1.E VoTims.-The eligible voters shall be those employees included within the Unit, who appear on the Employer's pay roll for the period indi- cated below, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election. At a date fixed by the Regional Director, the Employer will furnish to the Regional Director an accurate list of all the eligible voters, together with a list of the employees, if any, specifically excluded from eligibility. Pay-roll period for eligibility-Week ending July 26, 1946. * * a s * 7. OBJECTIONS, CH'AI.LENCES, REPORTS THEREON.-Objections to the conduct of the ballot, or to a determination of representatives based on the results thereof, may be filed with the Regional Director within five days after issuance of the Tally of Ballots. Copies of such objections must be served upon the other parties. The Regional Director shall investigate the matters contained in the objections and issue a report thereon. If objections are sus- tained, the Regional Director may in his report include an order voiding the results of the election and, in that event, shall be empowered to conduct a new election under the terms and provisions of this agreement at a date, time, and place to be determined by him. If challenges are determinative of the results of the election, the Regional Director shall investigate the challenges and issue a report thereon. On August 15, 1946, pursuant to the Agreement, an election was held at the Respondent's plant. The Union failed to win the election! On August 21, 1946, the Union filed with the Board's Regional Office objections to conduct affecting the results of the election, urging that the election be set aside because the Respondent had engaged in improper illegal conduct, described in six general counts. Of these objections, the following two, which are perti- nent to the issues in the instant proceeding, alleged : That during the hours the election was being conducted, and immediately preceding those hours on Company property, and Company time, supervisory officials, as well as persons who had been excluded from the collective bar- gaining unit, were allowed to go in the various departments of the plant, and electioneer against the Union. That this electioneering was known to officials of the Company and permitted by them. That members of the Union were not allowed such privileges, but on the contrary were restricted to their jobs and prohibited from visiting other departments, or from ex- pressing any opinion in favor of the Union during the same time. * * * * * 3 The Tally of Ballots issued on August 15, 1946, revealed that of the 460 eligible voters, 442 cast ballots, of which 277 were against the Union, 157 for the Union, and 8 were challenged. 857829-50-vol. 85-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That the Vice-President of the Company on the day preceding the con- duct of the election called together the employees of the Company on each shift, together with the supervisory officials, and there read a letter to the employees, a copy of which is hereto attached,. marked "Exhibit A," and made a part of these objections. That upon the conclusion of the reading of this letter, that supervisory officials began applauding the talk which had been made, and making statements against the Union, and giving out' copies of the letter to the assembled employees. That this meeting was held on Company time, and Company property, and for the purpose of persuading the employees to vote against the Union. From November 20 to 22, 1946, inclusive, Rush F. Hall, a Field Examiner on the staff of the Board's Regional Office and assigned by the Regional Director to investigate the Union's objections, conducted an investigation of such ob- jections at Greenville, Alabama. On November 22, 1946, the Respondent, at the conclusion of a conference with Hall, gave him its written answer to the Union's objections. On January 3, 1947, pursuant to the Agreement, the Regional Director issued his Report on Objections, finding that of the six allegations in the Union's objec- tions, only two had merit and that these two objections raised substantial and material issues with respect to the election. He accordingly sustained the ob- jections and set aside the results of the election held on August 15, 1946, stating that a new election would be conducted later. On January 8, 1947, the Respondent requested the Regional Director to recon- sider his decision announced in his Report on Objections and to give the Re- spondent an opportunity to be heard further in the matter. On January 15, 1947, the Regional Director issued an order denying the Respondent' s request :for reconsideration. On January 24, 1947, the Respondent requested that the Board in Washington, D. C., review the action taken by the Regional Director in the representation proceeding. On January 29, 1947, the Board denied the Respondent's request. On March 25, 1947, pursuant to the direction of the Regional Director, a second election was conducted' and was won by the Union.* On March 31, 1947, the Respondent filed objections to the conduct of the election and to conduct affecting the results of the election. On April 9, 1947, the Union filed with the Regional Director a statement in answer to the Respondent's objections. Later in April, at the direction of the Regional Director, E. R. Ormsbee, a Field Examiner of the Board, conducted an investigation of the Respondent's objections at Green- ville, Alabama. On June 6, 1947, the Regional Director issued his Report on Objections, finding the objections to be without merit and denying the Respond- ent's request, made in its objections, for a reconsideration of the Regional Director's decision to set aside the first election and for a formal hearing on the Respondent's objections to the second election. On June 9, 1947, the Respondent again requested that the Board in Washington, D. C., review the Regional Director's actions in the representation case. On June 13, 1947, the Respondent's request was denied by the Board. 4 The appropriate unit was that deflned in the Agreement, but the pay roll for determin- ing eligibility to vote was that on March 8, 1947, differing from that contained in the Agreement . Correspondence between the parties and steps taken in preparation for the conduct of the second election are hereinafter detailed. "The Tally of Ballots issued on March 25, 1947, revealed that of the approximately 415 eligible voters, 391 cast ballots, of which 213 were for the Union , 152 were against the 'Union, 26 were challenged, and 2 were void. MERRIMAC HAT CORPORATION 341 By letter dated July 23, 1947, Willie Frank McCrory, president of Local 99 of the Union, requested that the Respondent set a date for a conference to discuss the negotiation of a contract with the Union as the statutory representative of the Respondent's employees. By letter dated July 24, 1947, the Respondent declined to meet with the Union. The letter, in part, reads as follows : You are advised that the company does not regard the action of the Regional Director of the National Labor Relations Board in setting aside the election of August 15, 1946, as legal and binding on the company. We do not regard his action in calling the election of March 25, 1947, as legal and binding on the company. The rulings of the Regional Director in respect to the two elections referred to above were not, in my opinion, determined after a fair and impartial con- sideration of the evidence and facts. The company was not given a hearing. It was not allowed the privilege of know the source or nature of any evidence presented against it, nor was it allowed to present any contradictive evidence of its own. Therefore, the company does not recognize as legal the certification of the union by the Regional Director of the National Labor Relations Board. In view of this fact, we must respectfully decline to bargain with the union on the certification he has issued as a result of the March 25, 1947 election. B. The appropriate unit In accordance with the Agreement for Consent Election, the undersigned finds that all production employees of the Respondent at its plant in Greenville, Alabama, excluding all office and maintenance employees and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Wagner Act and the Act. C. Representation by the Union of a majority in the appropriate unit 1. The issues generally ; legal principles involved The Respondent contends that the Regional Director's actions and rulings in respect to the consent elections were illegal, arbitrary, and capricious, that Field Examiner Hall's investigation of the objections to the first election was biased and prejudiced for reasons hereinafter more fully detailed, that the results of the first election should not have been voided by the Regional Director, and that, accordingly, the Union is not the statutory representative of the Respondent's employees and the Respondent is under no duty to bargain collectively with the Union. The specific contentions in respect to the Regional Director's rulings and actions, discussed below, are governed by the following principle enunciated by the Board in Matter of Capitol Greyhound Lines,' a comparable case where the empoyer's defense to its refusal to bargain with the labor organization was based upon alleged illegal rulings of a Regional Director made pursuant to a consent election agreement : The factual question of majority is bottomed upon a consent agreement which expressly provided that a determination of the Regional Director as 9 49 N. L. R. B. 156. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to questions arising out of the conduct of the election, including questions arising out of eligibility of voters, shall be final and binding on the parties . . . we find that the Regional Director's ruling was neither arbitrary nor capricious. In the absence of such conduct, we feel ourselves bound by the terms of the Agreement providing for the finality and binding effect of the Regional Director's determination to the same extent as a court is bound by an agreement to abide by an arbitrator's award. To hold otherwise would permit an employer deliberately to ignore binding commitments embodied in a consent agreement ; would open the door to subterfuges for hampering and delaying a final determination of a bargaining representative; and would tend to defeat, rather than to effectuate, the policies of the Act. (Emphasis supplied.) The Board's holding that the finality of rulings of a Regional Director made pursuant to a consent election agreement are comparable to the conclusiveness of an arbitrator's award has been sustained by the United States Court of Appeals.' In the absence of fraud, misconduct, or such gross mistakes as imply bad faith on the part of an arbitrator, the courts have held the action or award of arbitra- tors to be final and conclusive and not subject to revision by the court,' even though the court might have reached it conclusion different from that of the arbitrators.' In accordance with these principles, the Board further elaborated its policy as to the finality of the rulings of Regional Directors in Matter of Ferris-Lee Lumber and Mfg. Co., ° wherein the Board stated : The Board has uniformly adhered to the policy of deeming itself bound by the customary commitment of the parties to regard as final and binding the Regional Director's determination with respect to questions arising out of the conduct of an election held pursuant to an "Agreement for Consent Election." The Board, therefore has refused to consider the merits of objec- tions to rulings of its Regional Directors on matters relating to consent elections (except when pertinent to the issues presented in an unfair labor practice proceeding, in which event the Board will disturb the Regional Director's rulings only if it clearly appears that they are abritrary or capricious). In view of this policy, therefore, the undersigned's authority in respect to the issues as to the preelection conduct of the Respondent is limited to a review of the 7 N. L. R. B. v. Capitol Greyhound Lines, 140 F. 2d 754 (C. A. 6) ; Semi-Steel Casting Company of St. Louis v. N. L. R. B., 160 F. 2d 388 (C. A. 8), enforcing 66 N. L. R. B. 713. 8 E. g., U. S. v. Mason S Hanger Co., 260 U. S. 323, 326 ; U. S. v. Gleason, 175 U. S. 588, .602 ; -Kihlberg v. U. S., 97 U. S. 398, 401 ; Guild v. Andrews, 137 Fed. Rep. 369, 371 (C. A. 8) ; Memphis Trost Co. v. Brown-Ketchum Iron Works, 1.66 Fed. 398, 403 (C. A. 6) ; U. S. v. Venable Coast. Co., 124 Fed. 267, 273. Generally, see, Sturges, Commercial Arbitrations and Awards; Rules of Law or Laissez-Faire in Commercial Arbitration, 47 Harv. L. Rev. 590 ; Williston on Contracts, Section 1.929 A ; Restatement of the Law of Contracts, Sec- tion 445, Comment (b), Section 550, Comment (a). Reference is hereinafter made to arbitration cases on issues not definitely covered by Board precedent. ° E. g., James Richardson d Sons Ltd. v. W. E. Hedger Transportation Corp., 98 F. 2d 55 (C. A. 2). In Burchell v. Marsh, 17 How. (58 U. S.) 344, 349-50, Justice Grier stated, "Courts should be careful to avoid a wrong use of the word 'mistake,' and, by making it synonymous with mere error of judgment assume to themselves an arbitrary power over awards. • The sane result would follow if the court should treat the arbitrators as guilty of corrupt partiality merely because their award is not such a one as the chancellor would have given. We are all too prone, perhaps, to impute either weakness of intellect or corrupt motives to those who differ with us in opinion." '071 N. L. R. B. 989. See also, Matter of Aetna Fire Brick Company, 56 N. L. R. B.849,. 854. MERRIMAC HAT CORPORATION 343 Regional Director's rulings to determine whether they were arbitrary or ca- pricious. The undersigned has no authority to determine ab initio whether the Respondent's preelection conduct was violative of the Act or constituted such interference with the balloting as to void the election, and the undersigned's conclusions as to the rulings and actions of the Regional Director are in no sense to be deemed to reflect what might have been the undersigned's conclusions as to the Respondent's preelection conduct had he been the original trier of fact. The instant proceeding accordingly is not a "re-trial" of the merits of the objections. The chief issue is whether the Regional Director's rulings and actions were arbitrary or capricious or, incidentally, were based upon the biased and prejudiced conduct or investigation of Field Examiner Hall. 2. The contractual issues In support of its contention that the Regional Director acted arbitrarily and capriciously in the administration of the representation proceeding, the Re- spondent contends initially that the Agreement was invalid because the Regional Director concealed from Vice-President Robert Beeland, who executed the Agreement on behalf of the Respondent, the scope of the Regional Director's authority tinder the Agreement. Secondly, if the Agreement be valid, the Re- spondent asserts that the Regional Director exceeded the authority granted him by Agreement in (1) sustaining objections of the Union to the first election and (2) using a current pay roll, different from that named in the Agreement, to determine eligibility to vote in the second election. a. Validity of the Agreement Shortly after the Union filed with the Board a 9 (c) petition on July 25, 1946, the Regional Director telephoned Vice-President Beeland, referred to the petition filed by the Union, and asked whether Beeland would agree to enter into an agreement with the Union for a consent election to be conducted by the Board. In regard to this conversation, the Regional Director testified, in part, as follows: Mr. Beeland wanted the information from me as to what the difference was between the procedure as to a consent election and that type election which would be held if ordered by the Board. I told Dir. Beeland that the difference was that in entering a consent election which would necessarily be signed by both the Petitioner and the Company that the election so far as being conducted, the balloting, and the place could be the same most likely as the Board ordered election, that there was this distinct difference how- ever in our procedure, that pursuant to a consent election agreement any question arising concerning post election matters, including the challenge and the eligibility of voters and including objections would be denied" by the Regional Director, that the parties were thereby waiving a hearing, that before the Board could order an election it would be necessary as it had always been necessary for a formal hearing to be held. I believe he asked me where such a hearing would be held and I told him here in Greenville pursuant to our usual practice of holding the election near the site where the company is. "The undersigned is of the opinion that the word "denied" is a typographical error on the part of the reporter and that the word "determined " should be substituted therefor. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In respect to this conversation, Beeland testified that he inquired as to the meaning of a consent election, that LeBus explained generally the different types of Board-conducted elections and assured him that a hearing would undoubtedly result in the ordering of an election. Beeland further testified : Well, I would not say that [Regional Director LeBus] made any misrepre- sentation to me. He didn't go as thoroughly into it as I think lie should have or as I wish he did . . . He certainly did not tell me he would have authority to throw out the election without investigations or things of that kind. I certainly wouldn't have signed any document that gave all rights of the Company to Mr. LeBus had he not failed to represent the import of it to me. Both LeBus and Beeland were witnesses of unusual acumen and impressed the undersigned as reliable witnesses. The undersigned is persuaded and finds that the probabilities of the situation lend credence to LeBus' testimony, namely, that in response to, Beeland's questions as to consent elections, LeBus did, in general terms, state the scope of his authority under the Agreement, although undoubtedly he did not describe in detail the possible situations which might arise and upon which he might be called to rule. LeBus' testimony is credited. In any event, even if Beeland's testimony be accepted as true, it does not estab- lish that LeBus fraudulently induced the Respondent to enter into the, consent election agreement. At the conclusion of the conversation, Beeland requested time to consider the matter. Thereafter, he consulted by telephone with President Sargeant of the Respondent's home office in Massachusetts and also conferred with Calvin Poole, local counsel for the Respondent, about the matter. Within a short time, Bee- land telephoned the Regional Office and informed them that he would enter into a consent election agreement. On July 29, 1946, the Agreement was mailed to the Respondent for its signature. Beeland read the Agreement, signed it on behalf of the Respondent, and returned it by mail to the Regional Office on August 2, 1946. The execution of the Agreement was apparently completed on August 8, 1946, when the Union signed the Agreement. On August 9, 1946, LeBus approved the Agreement executed by the Respondent and the Union. The Agreement clearly states that "the determination of the Regional Direc- tor shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election," sets forth his authority to investigate objections and issue a report thereon and to order another election if the objections are sustained, and in other respects defines the powers of the Regional Director. In view of the fact that Beeland had an opportunity to read and study the Agreement before signing and to consult both local counsel and officials of the'Respondent, the undersigned finds that the Respondent was not fraudulently induced to sign the Agreement and that the Agreement is binding upon the Respondent.'2 b. Authority of the Regional Director under the Agreement Paragraph 7 of the Agreement provides that "objections to the conduct of the ballot, or to a determination of representatives based on the results thereof, 12Cf. Dunham Lumber Co. v. Holt, 123 Ala. 336, 26 So. 663, wherein the court held: For one to misrepresent to another the contents of a writing which both can read, which both have an opportunity to read, which the one does not fraudulently prevent the other's reading, and which both sign is not a vitiating misrepresentation and is not in a legal sense a fraud. MERRIMAC HAT CORPORATION 345 may be filed with the Regional Director within five days after issuance of the Tally of Ballots." The Respondent argues that this provision does not en- compass the filing of objections to an election based upon the ground of "conduct affecting the results of the election," such as was sustained by the Regional Director in finding that the Respondent interfered with the free choice of its employees by ordering them to attend during working hours a meeting addressed by Vice-President Beeland the day before the election and also permitted an employee to engage in an antiunion campaign during working hours before tue election. In effect, the Respondent argues that the Agreement limits the scope of objections to the period of time consumed by the conduct of the ballot. The undersigned is not persuaded by the Respondent's argument. Paragraph 7 must be considered in conjunction with Paragraph 1 of the Agreement which states that "the determination of the Regional Director shall be final and bind- ing upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election."" Clearly, by virtue of these provisions, objections based upon preelection conduct might properly be filed with the Regional Director and be determined by him 14 In respect to the second election, the Respondent contends that the action of the #tegional Director in establishing a more recent pay' roll for determining eligibility to vote than that contained in the Agreement was arbitrary and unlawful. The Agreement provided that the pay roll to be used for the purpose of determining eligibility to vote should be that of July 26, 1946. The election was held on August 15, 1946, and vacated by the Regional Director on January 3,1947. The record reveals that when the Regional Director commenced prepara- tions for the conduct of a new election, a conflict arose as to the pay roll to be used in the new election for determining eligibility to. vote. The Respondent insisted that the original pay roll of July 26, 1946, used in the first election, should again control eligibility to vote. The Union requested that a more recent pay roll be used. Ultimately, over the Respondent's objection, the pay' roll of March 7, 1947, was used to determine eligibility to vote in the seconds election, conducted on March 25, 1947. In support of its contention that the change in eligibility pay rolls was' unwarranted, the Respondent points to Paragraph 7 of the Agreement which states, "If objections are sustained, the Regional Director may in his report include an order voiding the results of the election and, in that event, shall be empowered to conduct a new election under the terms and provisions of this agreement at a date, time, and place to be determined by him." The Respondent argues that by virtue of this provision, the eligibility date contained in the Agreement is controlling in the second election. "The Respondent's contention that this provision is "merely a description of the elec- tion and the type of ballot to be taken and does not deal with other subject" is without merit. See Semi-Steel Casting Co. v. N. L. It. B., 160 F. 2d 388 (C. A. 8). "The Board has held that the determination of objections based upon "conduct affecting the results" of a consent election must be made by the Regional Director. See Matter of Ferriss-Lee Lumber and Manufacturing Co., 71 N. L. R. B. 989; Matter of Miehle Printing Press and Mfg. Co., 58 N. L. R. B. 1134. Late in 1947, the Board revised the forms for use in executing an "Agreement for Consent Election." The fact that the revised form specifically provides that objections may be filed on the basis of "conduct affecting the results of the election" does not necessarily mean, as contended by the Respondent, that "the necessity for this addition must have been as a result of the realization on [the Board's] part that the old Consent Election Agreement form was defective in this re- spect." In view of the Board's prior holding as to this issue, the revision in the form must be deemed to be of a clarifying nature.only., 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An examination of previous cases reveals that the Board has never ruled upon the precise point raised by the Respondent in respect to the change in eligibility pay rolls and at first blush, considering Paragraph 7 alone, the Respondent's argument appears persuasive. However, consideration of cases with comparable fact situations, of the Board's general policies in representation cases, and of the pronouncements of the courts as to the effect to be given consent election agreements, as well as an analysis of the authority given the Regional Director by Paragraph 1 of the Agreement, leads to the conclusion that the Respondent's argument as to the change in eligibility pay rolls is untenable. As noted earlier, Paragraph 1 of the Agreement provides, in part: Said election shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election. This provision has been held by both the Board and the courts to clothe the Regional Director with considerable power in determining issues arising from a representation proceeding based upon a consent election agreement. Thus, the Board stated in Matter of Aetna Pare Brick Company: As found above, the Respondent agreed that the Regional Director's determination with respect to the election should be final and binding upon any question (including questions as to the eligibility of voters) not specif- ically covered in the agreement. In the Semi-Steel Casting case,16 the provisions of a consent election agreement, almost identical in language to the above-quoted terms of Paragraph 1 of the Agreement, were enlighteningly analyzed by the Court as follows : On the issue raised concerning the rejected ballots, the terms of the consent election agreement may not be ignored. The agreement is in the form customarily used by the Board. Its purpose is to guard against disputes concerning the conduct of elections, to provide for the prompt and final settlement of such controversies as may arise between the parties, and thus to minimize delay in the administration of the Act. Important in the effective use of the election agreement for the purposes stated are the provisions that the election shall be held in accordance with the Na- tional Labor Relations Act and with the policies, rules and regulations of the Board, and that the decision of the Regional Director concerning questions not covered by the agreement shall be conclusive on the parties. On review the Board accepts the Regional Director's decision on all ques- tions pertaining to the election, unless shown to be arbitrary or capricious or not in conformity with the policies of the Board and the requirements of the Act. No reason appears why the company should not be bound by the provisions of the election agreement to which it is a party. "To hold otherwise would ignore binding commitments embodied in a consent agree- ment; would open the door to subterfuges for hampering and delaying a final determination of a bargaining representative; and would tend to defeat, rather than to effectuate, the policies of the Act." [Matter of Capitol 15 56 N. L. R. B. 849. 10 Semi-Steel Casting Company of St. Louis v. N. L. R. B., 160 F. 2d 388 (C. A. 8). MERRIMAC HAT CORPORATION 347 Greyhound Lives, 49 N. L. R. B. 156, enf'd 140 F. 2d 754 (C. A. 6), cert. den. 322 U. S. 763.1 Upon these authorities, Paragraph 1 of the Agreement would appear to author- ize the action of the Regional Director in substituting a current pay roll for determining eligibility to vote in the second election upon one of the two following grounds or both: (1) to effectuate the purposes of the Act in accordance with the Board's Rules and Regulations, and customary procedures and policies and/or (2) to resolve an issue not specifically covered by the Agreement. In its Decisions in representation cases, the Board has established a policy, in the absence of unusual circumstances, of determining eligibility of the voters by use of a pay roll relatively current prior to the election, the usual language of the Board's directive defining employees eligible to vote to be those in the appropriate unit "who were employed during the pay-roll period immediately preceding the date of this Direction." In the event that the first election in the usual representation proceeding is set aside by the sustaining of objections to the election, the Board, in directing that a second election be held, custom- arily does not confine the eligible voters to those of the first election but ad- vances the eligibility pay-roll period to that "immediately preceding the date of the Second Direction.s17 The Board has followed this policy in ordering second elections in representation proceedings processed by it upon an agree- ment for Certification Upon Consent Election.28 Obviously, the reason for the policy of using a relatively current pay roll to determine eligibility to vote is the desire on the part of the Board to enfranchise the employees within the unit working at the time of the election so that the election may reflect as accurate as possible the choice of the employees as to their statutory representative. In view of the foregoing established policies of the Board, it is therefore clear that the Regional Director in determining that a current pay roll should be used to determine eligibility to vote in the second election was following the established policies and precedents of the Board. Moreover, the record reveals that by the use of the current pay roll for eligibility purposes, the second elec- tion more accurately reflected the desires of the employees within the appropriate unit in respect to their collective bargaining representative than if the eligi- bility pay-roll period of the first election had been used; for at the time of the second election, of the approximately 415 eligible employees 66 were not on the eligibility list of the first election and 113 of the approximately 460 eligible voters in the first election were in a noneligible status at the time of the second election. As to the second ground justifying the action taken by the Regional Director, during the preparations for the second election a conflict arose between the contracting parties to the Agreement as to the pay roll to be used to determine eligibility. The Respondent insisted that the original pay-roll period specified in the Agreement, namely, July 26, 1946, be used. The Union urged that a current pay roll be chosen to determine eligibility. Paragraph 7 of the Agree- ment empowered the Regional Director, in the event the original election was voided, to conduct a second election "under the terms and provisions of this agreement." The provisions of Paragraph 3 of the Agreement, stating "Pay-roll 17 Matter of Mack-International Motor Truck Corporation, 36 N. L. R. B. 870; Matter of Continental Can Company, 80 N. L. R. B. 785 ; Matter of Wolverine Shoed Tanning Corporation, Case No. 7-RC-170. 11 Matter of The Pure Oil Company, 59 N. L. It. B. 58. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period of eligibility-Week ending July 26, 1946" supported the Respondent's desires as to the pay roll to be used to determine eligibility. But the Union's argument for a current pay roll was supported by the provisions of Paragraph 1 that the "election shall be held in accordance with . . . the customary pro- cedures and policies of the Board," among which was the policy for the use of current pay rolls for eligibility purposes, and also that "the determination of the Regional Director shall be final and binding upon any question ... raised by any party hereto relating in any manner to the election." In the opinion of the undersigned the provisions and terms of the Agreement are not specifically definitive of the date to be used for eligibility purposes for the second election. It follows that a question had arisen "not specifically covered in the agreement"" and that by virtue, of Paragraph 1 of the Agreement, the Regional Director was authorized to resolve the issue in a determination final and binding on the parties. The undersigned concludes that the actions and rulings of the Regional Director in establishing a current pay roll to determine eligibility to vote in the second election were not arbitrary or capricious but were authorized by Paragraph 1 of the Agreement. 3. Field Examiner Hall's investigation of objections to first election with the Regional Office The Respondent's second principal defense is that the investigation of the Union's objections by Rush Hall, the Field Examiner assigned by the Regional Director to conduct the investigation, was "biased and prejudiced, and con- ducted pursuant to a conspiracy with the Union, and so inconclusive as to make a mockery of the administration of the" Act. In its brief, the Respondent attacks Hall's investigation on several grounds, which will be discussed seriatim. a. The "affidavits" submitted by the Union On August 21, 1946, the Union filed its "Objections to Conduct Affecting the Results of the Election" in the representation proceeding and also served a copy of the objections upon the Respondent. Shortly thereafter, the Union submitted to the Regional Office, in support of its objections, copies of purported affidavits taken by its representatives from employees of the Respondent. Hall was assigned to investigate the objections and when he commenced his investigation in November 1946, he interviewed the employees who had signed the affidavits. Instead of compiling new statements, to be signed and sworn to by the employees thus interviewed, Hall made notations on the copies of affidavits and attached these copies with his annotations, and in one instance with a supplemental sworn affidavit taken by Hall, to his Report on Objections subsequently made to the Regional Director. The record reveals that the originals of these statements taken by the Union's representatives were not true affidavits, not having been taken by notaries public or by individuals empowered to execute such official' documents. The Respondent contends that these affidavits "have no probative value in any court of law, and in few, if any, administrative proceedings." The undersigned finds no merit to the contention. The affidavits were not con- sidered.by the Regional Director in making his Report on Objections until after Hall had interviewed the employees who had made the statements. The au- thenticity of the statements in the purported affidavits having thus been vouch- 19 Matter of Aetna Fire Brick Company, 56 N. L . R. B. 849. MERRIMAC HAT CORPORATION 349 safed by Hall in his interviews, the affidavits, in the opinion of the undersigned, carry the same probative weight as if Hall had followed the customary practice of summarizing the result of his interview with each employee and attesting their signature thereto. b. The Union's assistance in Hall's investigation; nature of investigation Hall commenced his investigation about November 20, 1946, in Montgomery, Alabama, where he conferred with organizers and officers of the Union. The latter furnished Hall daily transportation between Montgomery and Greenville, a distance of some 35 or 40 miles,2' and to the homes of various employees whom the Union desired Hall to interview.n The officers and organizers of the Union were not present during Hall's interviews of these employees except in one instance when Hall requested the presence of a union organizer. On November 22 and 23, 1946, Hall interviewed 17 employees of the Respondent at its plant in Greenville, pursuant to arrangements made with Thomas A. Gearhart, executive assistant to Beeland. Late in the afternoon of November 22, Hall discussed generally with Beeland and Gearhart, the Union's 6 objections to the election. Although Hall did not disclose the specific evidence theretofore obtained from his investigation 33 he did raise the question of whether Beeland's assembling of employees on August 14, 1946, the day before the election, and reading to them a prepared statement constituted a violation of the "captive audience" doctrine established by the Board in the Clark Bros. case.' Gearhart and Beeland stated that the doctrine had not been infringed, giving their version of the incidents leading thereto." At the conclusion of this short conference, Beeland gave Hall the Respondent's "Answers to Objections to Conduct Affecting the Results of the Election held August 15, 1946, raised by the Union," setting forth its position and the results of its investigations as to the 6 objections made by the Union. 20 Hotel accommodations in Greenville being limited , Hall stayed at a hotel in Mont- gomery. 21 Several of these employees lived on farms in the vicinity of Greenville and without a guide, it would have been difficult for Hall, who had no car, to interview them. ^ Hall testified that he believed that he informed either Gearhart or Beeland that Whiddon and Pitts were charged, in affidavits given Hall by employees, with engaging in anti-union activities during working hours . Gearhart and Beeland denied that they were so informed. The testimony of Hall on this point was not particularly impressive or persuasive . From his observation of the witnesses , the undersigned credits the -denials of Gearhart and Beeland. It does not follow, however, that the Respondent had no knowledge as to the identity of employees who engaged in the anti-union conduct and activity complained of in the first objection of the Union. Hall had inter- viewed numerous employees and supervisors at the plant during his investigation with respect to Pitts' and Whiddon's activities. In respect to Pitts' activities, affidavits were given Hall by Superintendent Boucher, Production Manager Avard N. Darby, Foreman Foster, Forelady Neva Palmer , and Supervisor Lewis Palmer. As to Whiddon's activities, Superintendent Boucher and Forelady Palmer gave affidavits. Therefore, it is clear -that the Respondent had knowledge as to the identity of the individuals charged with engaging in the conduct complained of by the Union and set forth generally in the Union's objections served upon the Respondent. 23Hatter of Clark Bros. Co., Inc., 70 N. L. R. B. 802, enf'd 163 F. 2d 373 (C. A. 2). 24 Beeland and Gearhart testified that Hall informed them that in his opinion the Respondent had engaged in conduct violative of the Clark Bros. case. Hall denied that he gave any statement as to his decision or conclusions as to this matter, although he admitted that the issue was discussed and the Respondent 's officials gave their position as to whether employees were compelled to attend the meeting of August 14, 1946. Upon the entire record and his observation of the witnesses , the undersigned credits Hall in this regard. It was for the Regional Director to make the final decision in the proceeding; it seems unlikely that Ball would have usurped the Regional Director's powers. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In respect to the selection of employees for interviews,. Hall testified, "I told either Mr. Beehand or Mr. Gearhart or perhaps both of them that they had the privilege of so submitting any and all evidence in the form of witnesses or state- ments that they wished or had available, that I would interview any and all people made available for me and I want to say that before I left I was advised that there was no one further they wished me to interview." He further testi- fied that on both November 22 and 23, he informed the Respondent that he would interview any employees whom it suggested. On the other hand, Gearhart, when asked whether Nall had told him that he might present employees for interview, testified, "No, sir, he didn't. To my best recollection . . . he didn't." Beeland was not so specifically questioned as to this issue, .but his testimony in general supports that of Gearhart. Although Gearhart and Beeland were impressive witnesses, whose testimony the undersigned has credited on other issues, the undersigned is of the opinion that they (lid not fully recall their entire conversa- tion with Hall and that the latter's testimony more accurately reflects the con- versations between Hall and the Respondent's officials and that Hall, in fact, did offer the Respondent an opportunity to submit witnesses to Hall for interviews and any other evidence in respect to the issues raised by the Union's objections. In the undersigned's opinion, this finding is inferentially supported by the fact that, admittedly, Hall requested permission of Gearhart to interview a number of employees and supervisors in the plant, discussed with Beeland and Gearhart the Union's six objections, and accepted the Respondent's written answer to the Union's objections. Moreover, Hall impressed the undersigned as a truth- ful candid witness as to this and other issues. The Respondent contends that Hall was biased and prejudiced in his investi- gations of the Union's objections because he openly associated with the Union's officers and representatives and because he allegedly interviewed only the em- ployees suggested by the Union. The undersigned finds no merit in these con- tentions. It is established that in investigations of objections to elections, the burden is upon the objecting party to submit evidence and to suggest employees for interview to support its objections.25 In interviewing the employees sug- gested by the Union, Hall was merely following established practice. However, investigation did not cease with the exhaustion of the Union's list of witnesses, for he interviewed supervisors and other employees referred to in the statements of the employees initially interviewed. Moreover, as found above, he afforded the Respondent an opportunity to submit employees for interviews or any evi- dence in support of its position. Although Hall was afforded. transportation by the Union's representatives and he openly and without any pretext to secrecy, appeared in their company, the undersigned is of the opinion that such conduct was not censorable under the circumstances. c. Statements of bias and prejudice attributed to Hall Various witnesses for the Respondent who were interviewed by Hall during his investigation of the Union's objections to the election gave testimony attrib- uting to Hall's statements made during the course of these interviews indicating, if credited, bias and prejudice on the part of Hall for the Union. 25 See Matter of Lunder Shoe Corporation, 79 N. L. R. B. 1406, wherein the Board stated, "We can attach no validity to objections based on alleged interference with an election, where, absent manifest interference, the objecting party takes no steps to substantiate its allegations or otherwise to assist the Board in its investigation of the objections to the election ." See also Matter of Cities Service Oil Co. of Pennsylvania ( Marine Division), 77 N. L. R. B. 853 . Cf. Matter of Stonewall Cotton Mills , 78 N. L. R. B. 28. MERRIMAC HAT CORPORATION 351 Thus, Woodie Foster, foreman of the finish room, testified that Hall asked him, "Didn't I think the union was a good thing, after all it helped my pay same as it did the employees. I remember he said, `Don't you understand if the employees have a union they make better wages and you get better wages?' And I said, `I don't know whether they will not not. I never worked with the union and I don't know whether I get more pay or not.' " According to Mrs. Lural Foster, wife of Foreman Woodie Foster, Hall stated in the course of his interview with her that "the Union would be a benefit to me . . . that it would be a benefit to me if it was in the plant." Lewis Palmer, supervisor of the finish line on the second shift in August 1946, testified that during his interview by Hall, the latter asked him "if I didn't sign a union card and I told him yes" and that thereupon Hall said, "Well, do you know it was for a good thing?" Hall specifically denied having made the statements attributed to him by Lural Foster and Lewis Palmer and generally denied the testimony of Woodie Foster. Upon the entire record and from his observation of the witnesses, the under- signed credits Hall's denials and finds that he did not make the statements attributed to him by the Fosters and Supervisor Palmer. Employee William Whiddon testified that when Hall was interviewing him, Hall said "something about. the boys learning they can't talk during working hours. I don't remember just how he told me that . . . he mentioned it was against the rules for us to talk during working hours for or against the Union." Hall specifically denied the statements attributed to him by Whiddon. Whid- don did not impress the undersigned as an especially reliable witness. Upon the entire record and the reasons heretofore mentioned, the undersigned credits Hall's denials and finds that he did not make the statements testified to by Whiddon. Employee Buck Pitts testified that when he was summoned to an office in the Respondent's plant for an interview with Hall, the latter gave him a newspaper to read, but Pitts explained that he could neither read nor write. According to Pitts, Hall asked him no questions but sat at a desk and wrote out a statement which he gave to Pitts and asked him to sign. Pitts refused to sign the state- ment. Pitts denied that Hall read the statement to him, but testified that Hall said, "If you join this Union out here you could be making more money than what you would make like it is running out here now." On cross-examination by the General Counsel, Pitts gave the following testimony : Q. By dark skinned do you mean [Hall] was a white man? A. I didn't notice him that close to tell you the truth. Q. Oh, I see. You don't know whether he was a white or a.colored.man? A. No, sir, I didn't see him that close to see. In respect to his interview with Pitts, Hall testified that he may have.show,fid him a newspaper article which was the basis for one of the Union's objections, that he asked Pitts several questions, that Pitts answered his questions, that Hall made notes as the interview progressed, and that when he had finished ques- tioning Pitts, Hall wrote the substance of the interview in the usual, form of a statement and asked Pitts to read it and sign it. When Pitts explained that he could not read, Hall read the statement to him, but Pitts refused to sign the state- ment. To the statement, Hall appended the following: NOTE : This is to certify that I interviewed Buck Pitts and took the above statement which he said was true and correct but he refused to sign it. (S). Ruses F. HALL, NLRB, Nov. 22, 1946. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • Hall denied that he told Pitts that if the latter joined the Union, he would make more money. Upon the entire record and his impression of the witnesses, the undersigned finds that Pitts' testimony is not entitled to credence. He further finds that the Interview between Hall and Pitts was conducted in the manner testified to by Hall, whom the undersigned has previously found to be an honest and accurate Witness. d. Other contentions as to Hall's investigation Several witnesses who were interviewed by Hall at the Respondent's plant on November 22 and 23 testified that when they entered the office where the interviews were conducted, Hall locked the door. The Respondent apparently contends that the locking of the door by Hall in conducting the interview was coercive and unduly intimidated the employees. The undersigned finds no merit in the contention. It is clear that not all interviews were conducted be- hind locked doors and the record does not establish that the employees inter- viewed were unduly coerced or intimidated by the locking of the door, or sup- port any inference that the purpose of securing the door was for any other reason than to insure privacy during the interview. Some witnesses interviewed by Hall on November 22 and 23 testified that he omitted.certain information from his original summation of their interviews but inserted such information when his attention was drawn to the omission. The undersigned finds nothing censorable on the part of Hall in these instances. It is clear that such omissions were due to inadvertence and were promptly remedied by him when they were called to his attention. Other witnesses testified that the statements taken by Hall, which were read and signed by them on the occasion of the interview, did not accurately reflect the information they gave him. In each instance, however, the employee read the statement and signed it, immediately below the final paragraph of the state- ment to the following effect: I have read the above statement and swear that it is the truth to the best of my knowledge and belief. In view of the fact that Hall in other instances made corrections in the state- ments when errors were called to his attention, it is clear that any variance between the statements and the witnesses' version of the facts related to Hall would have been corrected upon request. The undersigned accordingly places no credence in the testimony that the statements did not correctly reflect the interviews between Hall and the employees or omitted pertinent material dis- closed by employees in their interviews by Hall." 161n regard to this issue , Arthur Stuart, "superintendent of the wet end of the back shop," testified that in his interview with Hall, the latter asked whether Stuart had "let Buck [Pitts] go around the shop campaigning against the union . .. I told him if Buck did go around the shop I thought he was campaigning for the union." The affidavit of Stuart taken by Hall made no reference to Pitts and was principally concerned with Stuart's circulation of a newspaper article which formed the basis of one of the Union's objections and which was referred to in the statements of employees. Hall testified that he questioned Stuart "regarding his explanation of those allegations ." Inasmuch as Pitts did not work tinder the jurisdiction of Stuart and as the statements given by employees in respect to Pitts' activities did not refer to Superintendent Stuart but did mention Superintendent Boucher and Foremen Foster and Palmer, whose affidavits show that Hall questioned them about Pitts' activities, there would appear to be no reason for Hall to question Stuart as to Pitts. The Regional Director, in response to questions propounded by counsel for the Respondent in respect to Stuart's testimony, testified that Hall had orally reported to him that the superintendent of the Respondent had denied MERRIMAC HAT CORPORATION 35e` Ultimately, the Union withdrew one of its six objections. In the report on his investigation to the Regional Director, Hall recommended that three of the objections be sustained.24 The Regional Director found merit in only two of the three recommended by Hall. The Respondent contends that the fact that Hall found merit in more of the objections than did the Regional Director is indica- tive of bias and prejudice on the part of Hall. The undersigned cannot agree. There was evidence to support Hall's recommendations. The fact that the Regional Director was not persuaded that the evidence was sufficient to sustain; one of the objections indicates merely a difference in opinion between Hall and LeBus as to the weight of the evidence and does not establish Hall's bias and prejudice. In view of the foregoing findings, the undersigned concludes that the Re- spondent's contentions as to Hall's conduct and as to the nature of his investiga- tion have not been established and are without merit n 4. The Regional Director; rulings on the Union's objections As heretofore noted, the Regional Director sustained, in part, two of the: Union's objections and accordingly set aside the election. The Respondent contends that the evidence adduced by Hall's investigation of the objections didi not support the Regional Director's Report on Objections or the report made; by Hall to the Regional Director, recommending that the objections be sustained; and that in reaching these conclusions, Hall evidenced his bias and prejudice in favor of the Union and the Regional Director acted arbitrarily and capriciously, a. Anti-union activities of Pitts during working hours In this phase of its case, the Respondent attacks first the following disposition of an objection of the Union by the Regional Director in his Report on Objections: Allegation No. 1 in the objections is in effect a contention that a "no vote" campaign was conducted during and immediately preceding the elec- tion by supervisory officials and employees whereas employees who were- members of or adherents of the union were prohibited from conducting a campaign favoring the union. The employer has had in effect for some time, and prior to the election, a rule prohibiting "conducting of any outside business on the company's time". permitting Pitts to engage in anti-union activity and that Hall had mentioned such denial in his report on the investigation to the Regional Director. However, later testi- mony of the Regional Director indicates that he was uncertain as to the identity of the Respondent's supervisors who had been interviewed by Hall. Hall's report discussed the- statements given by Superintendent Boucher and Foreman Foster in respect to Pitts' activities. Upon the complete record and considering the Regional Director's testimony in its entirety, the undersigned finds that the Regional Director was confused in his testimony as to the identity of Superintendent Stuart and as to the statements given Hall by Superintendent Stuart and Superintendent Boucher and that in his testimony the Regional Director was referring to Boucher's statement. The undersigned concludes that Stuart was not questioned by Hall concerning Pitts' activities and that no pertinent facts were omitted by Hall from Stuart's affidavit. "As to another objection, Hall found that some evidence supported the objection but indicated that there was no showing that it affected the results of the election. He did not include it among the objections to be sustained in his concluding recommendations.. 28 Additional contentions of the Respondent as to Hall's conduct and investigation are- hereinafter discussed in conjunction with similar contentions made by the Respondent in regard to rulings of the Regional Director. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This rule has been interpreted to define solicition (sic) or other activities by employees favorable to the union on company time as "outside business". Therefore, the employer has prohibited employees to engage in union activi- ties during company time. It appears from affidavits submitted by employees and supervisory per- sonnel to an agent of the Board that William Whitton 29 and Buck Pitts neg- lected their work in the plant during company time immediately prior to and on the date of the election for the purpose of contacting other employees and in conversation with other employees solicited them to vote against the union in the election. It is doubtful that the company through its supervisory employees had knowledge of the conversation between Whitton and the other employees. However, it appears certain that the company supervisory per- sonnel knew that Pitts neglected his work on several occasions during the two days and on company time solicited other employees to vote against the union in the election. Pitts' absence from his work was called to the atten- tion of his superiors, but the latter did not require Pitts to remain at work, but on the contrary condoned Pitts' neglect of his work, and it appears cer- tain that during Pitts' absences lie widely engaged in the solicition ( sic) of employees to vote against the union. It is reasonable to expect the company to apply its rule consistently if the company's interpretation is adopted. If employees are prohibited from en- gaging in activities on behalf of the union during company time, they should likewise be prohibited from engaging in activities opposed to the union during company time. Employees can only conclude that the company favors ac- tivities which it condoned on the part of Pitts. The undersigned is of the opinion and hereby finds that allegation No. 1 of the objections has merit. In its brief, the Respondent sets forth a lengthy analysis of the statements and affidavits elicited from employees in the investigation of the objections to the election, reconstructing the course of events as to Pitts' activities so as to absolve the Respondent of responsibility for any antiunion activity he may have engaged in during working hours prior to the election. Although the Respondent's analysis carries with it considerable persuasion, it cannot be said that the failure of the Regional Director to adopt such an analysis was arbitrary or capricious, in view of the conflicts in the evidence before him, susceptible of resolution in more than one fashion. Even in the Respondent's version, there are certain conflicts in the evidence which would justify the Regional Director to deny credence to such evidence. Thus, the Respondent's position as to Pitts' activities is based upon the affidavit given Hall by Woodie Foster, Pitts' foreman, and Arthur Boucher, superintendent of the front shop. Their statements, however, are mutually contradictory, not only of each other but of production records of Pitts. According to Foster's affidavit, Pitts, who ordinarily was employed as a crown finisher in a team with two other employees, complained of ill health in August and on August 14 and 15 "was doing odd jobs and not doing crown finishing," and therefore Foster "put him on other jobs like pushing racks, spraying and laying out hats," which duties necessitated his going into one or two departments of the plant. On August 14 and 15, according to Foster, Pitts was "doing odd jobs and not doing crown finishing." Foster, in denial of statements of em- 2D The correct spelling of the name is Whiddon. MERRIMAC HAT CORPORATION 355 ployees stated that lie did not on either of those days put Pitts to work as a crown finisher with his teammates. Boucher, on the other hand, stated in his affidavit that when Pitts com- plained of ill health, Foster and Boucher discussed the complaint "and put him on lighter work pushing hat racks and spraying hats and doing occasional make- ups on his own machine." Boucher further stated that on August 14 and 15, Pitts "was doing this light work" but "I don't know whether or not he finished any hats those days. It would not be necessary to keep a record of make-ups. A record is kept of hats finished by regular crown finishers." However, production records furnished Hall by the Respondent show that on August 14, 1946, Pitts worked on the crown finishing job an hour and a half with 61/2 hours credited to "day work," and on August 15, 1946, he spent 61/2 hours working on the crown finishing job with a credit of an hour and a half to "delay time." Thus, these records raise doubt as to the accuracy of the state- ments of Boucher and Foster, both of whom in effect asserted that Pitts was not doing crown finishing work on those days. This conflict in the evidence was noted by Hall in his report to the Regional Director as a reason for the denial of credence to the affidavits of Foster and Boucher. The undersigned finds that the conflicts between the statements of Foster and Boucher and between their statements and the production records raised substantial doubt as to the truth of Poster's and Boucher's affidavits and that the denial of, credence to such affidavits by Hall and the Regional Director, with the consequent negation of the Respondent's analysis of the evidence as to Pitts' activities, was not arbitrary or capricious conduct. There remains for consideration the question of whether on the evidence elicited by Hall's investigation and considered by the Regional Director, the rulings of the Regional Director with respect to the objections to the election are arbitrary or capricious and the recommendations of Hall to the Regional Director were so unjustified as to reflect his bias and prejudice in favor of the Union. At the outset, it should be noted that Hall's report on objections to the Regional Director clearly shows that he considered the Respondent's position and the evidence supporting its contentions on all issues. Furthermore, the Regional Director testified credibly that he considered all the documents in the representa- tion case file which were introducted into evidence. The following statements from affidavits given Hall support the Regional Director's ruling that Potts was engaged in antiunion activity with the Re- spondent's knowledge on August 14, 1946: 1. Statement of Sermon Hayes given representatives of the Union on August 24,1946.- . .. On Wednesday before the election [August 14, 19461 Buck Pitt>3 worked as crown finisher on Woodrow Wilson's machine while he was out checking the voting list. We were short of hats on our press line & I got after the foreman Woody Foster about Buck Pitts not staying at his machine. Foster got Pitts and brought him to the machine & he finished one stack of 3 dozen hats & left. That is about 30 minutes work. I saw him down in the trim department talking to the girls there. I asked Foster why Pitts couldn't come & help us get the hats off the floor, so they could be pressed. Foster didn't go get him. Buck came back & finished one more stack & 30 Hall testified credibly that he interviewed Hayes in November to verify the accuracy of the statement. 857829-50-vol. 85-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD few make up by 2 P. M. . . . Foster gave us then 2 hours make up for the- time we lost not having hats & said he gave Pitts the same too. . . . 2. Affidavit of employee Woodrow W. Wilson given Hall on November 20,. 1946. ... Pitts was a union member and wore a union button until the morn- ing before the election. Lewis Palmer, foreman over finish line on second shift, was working on the first shift that morning, I saw Palmer say some- thing to Pitts and Pitts took off his union button. I didn't hear what was said. After that Pitts talked against the union the rest of that day and the day of the election... . 3. Statement of Verbie G. McCrory given representatives of the Union on August 24, 1946.81 . . . Another employee, Buck Pitts, was going through the upstairs talking against the Union. This happened on two days. [Apparently on August 14 and 15 3=1 . . . He also talked to Mrs. Cobb in that depart- ment. She was crying and very nervous after he talked to her & she told me she thought we were making a mistake in voting for the Union. When I started to talk to her, Lane Harrison and Jim Whittles, (foremen) ... hurried Mrs. Cobb up saying she was getting behind in her work. No effort was made to stop Whitten 83 and Pitts from going around & talking against the Union. 4. Affidavit of employee Birdie M. Wilson given to Hall on November 20, 1946. On Wednesday and Thursday, August 14 and 15, the day before and the day of the election at the plant, I saw Buck Pitts, crown finisher, walking around in our room talking to several of the employees, at least 5 minutes each. I don't know what he told them. He was working on the first shift which quits at 2 P. M. but he stayed in our dept. and talked to girls on the second shift. 5. Statement of Sidney E. Malone given representatives of the Union on August 24, 1946.84 On Wednesday before the election I noticed that Buck Pitts, who was taking Woodrow Wilson's place, was not at his machine a good bit of the time. We ran out of hats that day. 31 Hall testified credibly that he also interviewed McCrory in November to verify the accuracy of her statement. Certain notations made apparent by Hall on the statement render portions of it meaningless. The undersigned has not quoted those portions. 32 Earlier in her statement, McCrory referred to activities of employee Whiddon as occurring on August 13. It might be argued that her reference to "two days" in con- nection with Pitts' activities meant that they commenced on August 13. However, later in her statement she states that the meeting of employees addressed by Beeland occurred on August 13, The record establishes and other statements show that the meeting was held on August 14, the day before the election . Therefore it would not,. in the opinion of the undersigned, have been arbitrary or capricious for the Regional Director to infer that she was mistaken as to her recollection of the dates of the occurrence of the activities of Pitts and Whiddon. That is, since she places the meeting of employees and the activities of Pitts and Whiddon as occurring on the same day, August 13, it might reasonably be inferred and found that she was mistaken as to the date and that: such activities took place on August 14, the date of the meeting. 83 The correct spelling of the name is Whiddon. "Hall testified credibly that he interviewed Malone in November to verify the accuracy-- of the statement. MERRIMAC HAT CORPORATION 357 The Respondent contends that the Regional Director was not justified in crediting Woodrow Wilson's affidavit as to Pitts' activities on August 14, because the statement of Hayes, supported by that of Malone, shows that Wilson was not at work on August 14, being on leave to check the voting list. Even if the Respondent's contention that Wilson was not at work on August 14 be accepted, the affidavit of Wilson in respect to Pitts' activities on August 14 is not thereby discredited, for the affidavit on its face does not state that the observations with respect to Pitts related therein were made during Wilson's working hours- Therefore, he might have taken the day off to check the voting lists, but still have been in the plant and made these observations. The undersigned finds that it was not arbitrary or capricious for the Regional Director to credit Wilson's affidavit. In view of the statements of Hayes and Wilson, corroborated in part by McCrory, Birdie M. Wilson, and Malone, the undersigned finds that the Regional Director's ruling that Pitts engaged in antiunion activities during working hours on August 14, 1946, was not arbitrary or capricious. Furthermore, Wil- son's statement that when Supervisor Palmer spoke to Pitts, the latter removed ills union button and thereafter campaigned against the Union and Hayes' state- ment that he drew Foster's attention to Pitts' absence from the crown finishing machine on August 14 indicate that Pitts' antiunion activities were known to the Respondent on August 14 and accordingly the Regional Director's ruling to this effect was not'arbitrary or capricious. As to Pitts' activities on August 15, 1946, the day of the election, the following excerpts from affidavits and statements in the file support the Regional Director's ruling that on August 15, 1946, Pitts was engaged in anti-union activities with the knowledge of the Respondent : 1. Statement of Sermon Hayes given representatives of the Union on August 24,1946. On the 15th [Pitts] went to Henry Jones on the machine next to me &. tried to get him to vote against the Union. Henry Jones told me he was trying to get him to vote against the Union. I asked Pitts why he had changed so quick. He told me if "I went to Robt. Beeland to borrow some money I could get it & if I went against him I couldn't." I asked him if Beeland was looking for the interest or principal if he borrowed money from him. Buck laughed & said that "I might not have to pay Beeland back all the time if I borrowed money from him." Later Buck asked if I would vote against the Union-I told him I wouldn't & I had signed a card. He told me I'might be sorry that I did. I said I was plowing a mule before I came & could go back to doing it too. This was in the shop on Company time. 2. Statement of employee Woodrow W. Wilson given to representatives of the Union on August 24,1946.85 I saw William Whidden & Buck Pitts on August 15th, the day of the voting for the Union, walking from one employee to another, to campaign against the Union. This was done on company time & in full view of Woodie Foster & Arthur Boucher. Several people, Inez Braden, Angie Brown & others, came to me & said that these two men are trying to talk us out of voting for the Union. . . . Buck Pitts said that if the Union came 00 Hall interviewed Wilson on November 20, 1946, to verify the accuracy of this statement. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in that man from Russia would come here and you all would have to do what he said. Buck Pitts is a crown Finisher the same as I, but on the day of election he was absent from his machine & out of the Finishing Dept. for most of the morning. He settled back to work after our dept. had voted, which was about 12 noon. 3. Statement of employee Woodrow W. Wilson given to Hall on November 20,1946. On the day of the NLRB election August 15, 1946, I was working as usual as presser and crown finisher in the Finishing Dept. at Merrimac Hat Corp. I saw Buck Pitts, who is also a crown finisher and works within 25 feet of me, stay away from his work most of that morning. I did not see any of the supervisors say anything to him or tell him not to talk or to stay on the job. Woodie Foster my foreman and Arthur Boucher, front shop supt., saw him talking and saw that he was away from his work. About 10 A. Al. on August 15 Foster stopped to inspect my hats. I said "If Buck Pitts can run around and campaign against the Union, I think that I'll quit work and talk for the Union." Foster didn't say anything. 4. The affidavits of employees McCrory and Birdie M. Wilson, set forth above, referred generally to Pitts' activities on August 15, 1946. 5. Employees Frances Godwin and Ruth Gill each gave affidavits to Hall stating that on August 14, 1946, Pitts gave each of them a union button but on August 15, 1946, during their working hours, Pitts promised to give them $10 if they would vote against the Union in the election. In view of the affidavits of Hayes and Wilson, supported to a certain extent by those of Birdie Al. Wilson, McCrory, Godwin, and Gill, the undersigned finds that the Regional Director's ruling that Pitts was engaged in antiunion activi- ties on August 15, 1946, was not arbitrary or capricious. The Regional Director's further ruling that such activities of Pitts occurred with the knowl- edge of the Respondent was neither arbitrary or capricious since Wilson's affi- davit states that Pitts' activities occurred "in full view" of Supervisors Foster and Boucher, and that Wilson specifically drew Poster's attention to the nature. of Pitts' activities. These conclusions as to the Regional Director's rulings also are applicable to the recommendations of Hall to the Regional Director in the former's report on his investigation and negate the Respondent's contentions of bias and prejudice on the part of Hall. There remains for consideration the ruling of the Regional Director that in contradistinction to Pitts' antiunion activities during working hours, other employees were prohibited from engaging in activities in behalf of the Union during working hours. LeBus testified credibly that in making this ruling he considered the following rules of the Respondent in force in August 1946: (9) Do not engage in activities other than assigned or designated work on company time. These activities include unnecessary discussion, loitering, unauthorized solicitation, circulation of petitions, balloting, distribution of hand bills or other literature. (12) Do not solicit membership pledges or subscriptions nor conduct any outside business, including the unauthorized collection of money, on company time. (13) Do not participate in organization activities of any kind on company time. MERRIMAC HAT CORPORATION 359 (14) Do no (sic) enter departments other than where assigned to work without the permission of your foreman or superintendent. Visiting and excessive talking should not be done during working hours. LeBus further testified that he investigated to determine whether these rules were enforced. This testimony is credited, for the Respondent's answer to the Union's objections, given Hall on November 22, states that prior to the election, "No privileges were allowed any one to visit or to discuss anything other than the duties of their job." This statement indicates that the rules were enforced. Superintendent Boucher, in his affidavit given Hall, also. indicated that the Respondents' shop rules were observed. However, that portion of the file in the representation proceeding which was introduced into evidence, with the assurance by the General Counsel that all evidence considered by the Regional Director in reaching the formulation of his Report on Objections was included therein, fails to show that the Regional Director investigated whether the rules had been invoked to prohibit union activities by adherents of the Union during working hours. The question thus posed is whether the lack of evidence in the Regional Director's investigation to support the statement in his Report on Objections that the rules of the Re- spondent were discriminatorily enforced between the Union and nonunion adherents is sufficient to vitiate the Report on Objections. No precedent in the Board's Decisions has been found covering this precise situation. However, the question has arisen in the courts in proceedings where the award of an arbitrator has been challenged by one of the parties to the arbitration. As mentioned earlier, the courts have refused to review, modify, or set aside an award of an arbitrator "in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment." 3° In order to vitiate the award, the mistake must be more than a mere error in judgment or opinion but must be "such as not only to imply but to necessarily imply bad faith," 3' must be established by an overwhelming weight of the evi- dence, 33 and must be "so gross and palpable as to leave no doubt in the mind of the court that grave injustice was thereby done." 39 The mistake must be of such a nature that but for the mistake a different award would have resulted.'° How- ever, despite the mistake, an award is not thereby vitiated if any evidence before the arbitrators existed to sustain the award.41 In this connection, the following observations of the court in Park Const. Co. v. Independent School D-ist.43 are enlightening: While an -award of arbitrators is not subject to judicial review and re- vision, it is subject to impeachment for fraud, mistake, misconduct, and 3° Kihlberg v. U. S., 97 U. S. 398. Accord : U. S. v. Gleason., 175 U. S. 58S ; Memphis Trust Co. v. Brown-Ketchum Iron Works, 1.66 Fed. 398 (C. A. 6) ; Guild v. Andrews, 137 Fed. Rep. 369 (C. A. 8). 37 Guild Y. Andrews, 137 Fed. Rep. 369 (C. A. 8). The Court further stated, "Gross mistakes imply bad faith only when, all the circumstances duly considered, they cannot be reconciled with good faith, and then they not only imply, but necessarily imply, bad faith." 33 Choctaw & IT. R. Co. V. Newton, 140 Fed. 225 (C. A. 8) ; Road Improvement Dist. No. 5 of Crittenden County Ark. v. Roach, 1S F. 2d 755 (C. A. 8). 39 Choctaw & IT. R. Co. v. Newton, supra. 19 Burcheli v. Marsh, 17 I-Iow. (58 U. S.) 344 ; Boston Water Power Co. v. Gray, 47 Mass. 131. ; Carey v. Herrick, 146 Wash. 283, 263 P. 190. 41 Osborn & Walcott Mfg. Co. v. Blanton, 109 Ga. 196, 34 S. E. 306. Cf. Fulmore v. McGeorge, 91 Cal. 611, 28 P. 92. 4216 Minn. 27, 11 N. W. (2d) 649. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disregard of duty on the part of the arbitrators. Here there is no direct evidence of any fact vitiating the award. It is claimed that such error has been shown that an inference is compelled that the arbitrators acted with prejudice and bias and not in the exercise of a fair and impartial judgment. Where it is sought to impeach an award on the ground that arbitrators have reached the wrong conclusion, it is incumbent to show clearly that conclusion is so at variance with any conclusion which can legitimately be drawn from facts in evidence as to imply bad faith for failure to exercise an honest judg- ment. . . . Perhaps . . . our terminology is unfortunate, and it. would be more accurate to deal with cases of this kind as involving "fundamental error" rather than fraud, but we need not decide that question now. But a court will not set aside an award simply because it thinks the arbitrators erred, either as to the law or the facts. . . . In the final analysis, the award must stand and the decision of the court below must be reversed if there is any reasonable basis for the award in the proceedings and evidence had before the arbitrators.'3 With these principles in mind, does the failure of the Regional Director's investigation to support his statement concerning the discriminatory enforce- ment of the Respondent's rules vitiate his Report on Objections on the ground that it is based upon an arbitrary or capricious ruling? The undersigned is of the opinion that the question must be answered in the negative. The "mistake" contained in the Report on Objections is more in the nature of an "error in judgment or opinion" on the part of the Regional Director. It does not follow that but for the "mistake," the Regional Director's conclusion in respect to Pitts' antiunion activities during working hours would have differed. The record in the instant proceeding reveals that when the Regional Director made his findings in the Report on Objections, his investigation revealed evidence (accepting his resolutions of conflicts in the evidence) that during working hours shortly before the consent election Pitts solicited employees to vote against the Union, that such activities of Pitts were known to the Respondent's supervisors, and that such activities were violative of the Respondent's working rules. This evidence is sufficient to support the Regional Director's conclusion that "Employees can only conclude that the company favors activities which it condoned on the part of Pitts" and that by the Pitts incident, the Respondent unlawfully interfered with the employees' free choice of a bargaining representative. In other cases, the Board has found such campaigns to be unlawful conduct affecting the results of elections.' The undersigned concludes and finds that the Regional Director's ruling as to Pitts' activities was not arbitrary or capricious, that his unsupported finding that the Respondent discriminatorily enforced its working rules was in Cf. Everett Y. Brown, 1.20 Misc. 349, 351, wherein the Court stated : If the arbitrators keep within their jurisdiction their award will not be set aside because they may have erred in judgment either upon the law or the facts. When the evidence is closed the arbitrators are the sole judges of its weight and what decision should be made, and are free to adopt such a course as they deem best adapted to bring about a just decision of the matters in controversy. If their decision is against the weight of evidence, or if perchance there is no evidence in the record to support it, it may still be founded upon principles of equity and good conscience and the court is powerless to review the action of the arbitrators in a motion to confirm their award.... The partiality of an arbitrator must be clearly shown before the court will set aside his award for that reason. The burden of showing partiality rests on the. party making the charge. -E. g., Matter of Hoosier Cardinal Corporation, 67 N. L. R. B. 49; Matter of Van Raalte Company, Inc., 55 N. L. R. B. 146. MERRIMAC HAT CORPORATION 361 the nature of an "error in judgment," affecting the rationale but not the ultimate -conclusion of his Report on Objections and that this unsupported ,finding is insufficient to establish a conclusion or inference that the Regional Director's rulings and conduct in the consent election proceeding were arbitrary or .capricious 4E b. The captive audience The Union's sixth objection to conduct of the Respondent affecting the results -of the election alleged that on August 14, 1946, the day before the election, Vice- President Beeland assembled the employees of the Respondent on each shift -during working hours in the plant and read to them a letter, a copy of which was later given to each employee .4' The Union contended that the language of the letter, viewed in context with previous conduct and activities of the Respondent, -coerced the "employees in the exercise of their will." The Regional Director in his Report on Objections interpreted this objection to be "a contention that officials of the company compelled employees to listen to a speech on self-organization during working time in the plant for the purpose of influencing the employees to vote against the union in the election." Pur- suant to the principle enunciated by the Board in the Clark Bros. case," and fol- lowing the rationale of that case, the Regional Director found that the employees had been compelled to listen to the speech by Beeland and that "to force employees to receive such aid, advice, and information as proffered by the company in -this matter impairs the freedom and does interfere with the selection of a representative of the employees' choice." The Respondent contends in its brief that the Union's objections related to the -contents of the letter read by Beeland and cannot be interpreted to raise the "captive audience" issue of the Clark Bros. case. The Respondent contends that ,by so interpreting the objection of the Union, the Regional Director acted arbi- trarily and capriciously and Hall evidenced his bias and prejudice against the Respondent. The undersigned does not agree. Liberally construed, the facts .set forth by the Union in its sixth objection raised the issue cf the Clark Bros. .case, although no specific mention of the theory of that case was made by the Union. In any event, the Board has held that its investigations of objections to elections are not confined to the specific objections made by objecting party, .but may encompass grounds not set forth in the objections." The undersigned concludes that by interpreting the Union's sixth objection to encompass the captive audience theory of the Clark Bros. case, the Regional Director did not "Hall's concluding recommendations to the Regional Director as to this issue were as follows : It appears from the evidence submitted that Pitts and Whiddon were engaged in talking against the union prior to and during the election and that this was in violation of company practice, if not company rule, forbidding employees to visit or discuss anything other than duties of their job as stated in the company 's answer to [Union's Objection] number 1. 1n view of the considerations above discussed in the text , as well as the results of Hall's investigation , the undersigned finds that this conclusion does not establish bias and prejudice on the part of Hall. 96 The letter, moderate in tone, quoted excerpts from the statutes of Alabama, described the mechanics of the balloting to be conducted the next day, stressed the importance of noting; and refuted certain statements attributed to the Union during its organizational campaign. 97 Matter of Clark Bros . Co., Inc., 70 N. L. R. B. 802, enf'd 163 F. 2d 373 (C. A. 2). 98 Matter of The Fischer Chair Company , 71 N. L. R. B. 806 ; Matter of General Motors Corporation, 46 N. L. R. B. 574. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rule arbitrarily or capriciously and Hall did not evidence bias and prejudice against the Respondent. Secondly, the Respondent contends that the Regional Director's rulings as to the captive audience theory of the August 1.4, 1946, meeting were arbitrary and capricious, being unsupported by the evidence before him at the time he made his Report on Objections. The contention is without merit for the Regional Director's ruling that the employees did not have an option. to refrain from attending the meeting is supported by statements and affidavits of employees and supervisors given Hall. Thus Foreman Harrison made the following statement in his affidavit: I attended a meeting of supervisors in the conference room the morning before the election. Mr. Beeland told us to tell our departments to all go. to a meeting in the warehouse , third floor , sometime before noon. I told my employees about the meeting and told them Air. Beeland wanted to talk to all of them . All of them went to the meeting . I did not hear any super- visor or official say, that they did not have to go if they did not want to or did not have to stay. Similarly Superintendent Boucher stated in his affidavit : The day before the election I was instructed by Mr. Darby, production manager, that Mr. Beeland -wanted to talk to all of the employees in the warehouse and I told my foremen to tell their departments to turn off their machines and go to the meeting. All employees and departments were noti- fied to attend. As far as I know everyone went. In addition , statements and affidavits from five employees support the Regional Director 's finding that attendance by employees of the August 14, 1946, meeting was compulsory. In view of this evidence , it cannot be said that the Regional Director acted arbitrarily and capriciously in overruling the Respondent's posi- tion, as given by Beeland to Hall during the course of their interview on Novem- ber 22, 1946.99 Moreover , this conclusion is buttressed by the fact that the ques- tion of the compulsory feature of the August 14, 1946 , meeting was reopened and investigated by 1, icld Examiner E. R. Ormshee in his investigation of the Respond- ent's objections to the conduct of the second election , during which investigation the Respondent was given opportunity to advance any evidence it desired in support of its position . Field Examiner Orinsbee concluded in his report to the Regional Director on the investigation of the objections to the second election as follows: The sole evidence submitted was Manager Beeland's oral statement. This. evidence is definitely refuted by numerous sworn statements by employees 40 As to this issue,"the Respondent in its brief states, in support of its contention that Rail's investigation was biased and prejudiced, "It is the Company's contention, and this obviously could be substantiated by every supervisor in the plant, if the Company had been allowed by Mr. Hall to submit testimony, that the meeting of the employees called by Mr. Iteeland was not a 'captive audience.' " The undersigned finds no merit in the contention, for, as found previously, Hall afforded the Respondent an opportunity to pro- duce any evidence it desired for his consideration. Furthermore, a second opportunity was afforded the Respondent to submit such evidence during the course of Field Examiner. It. It. Ormsbee's investigation of the second election. The Respondent also states in its brief that "There is no statement anywhere in the record of Mr. Hall's that any employee- was forced to attend the meeting. . . For the reasons enunciated in the text above. with respect to the evidence supporting the Regional Director's ruling on the compulsory attendance at the meeting, the undersigned finds no merit in this contention. MERRIMAC HAT CORPORATION 363 that no option in the matter of attending the meeting was given them, and no announcement made that they would be paid for their time whether they attended or not; they were simply told that Mr. Beeland wanted everyone at the meeting. The evidence is conclusive that, whatever the instructions of Mr. Beeland to his foremen, the foremen did not announce the meeting as Mr. Beeland states they were instructed to do. Thirdly, the Respondent contends that-the Regional Director and Hall "erred, as a matter of law, in holding that . . . the doctrine of the Clark Bros. case, was the law and binding upon Respondent." On August 26, 1946, the Board issued its Decision and Order in the Clark Bros. -case. In addition to finding that the Respondent had on several grounds violated .Section 8 (1) of the Act, the Board held as follows in respect to speeches made by the employer to a compulsory audience of employees : 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 In- termediate Report, independently constitutes interference, restraint, and coercion within the meaning of the Act. Section 7 of the Act guarantees to employees the "right to self-organization, to form, join, or assist labor organi- zations" and "to bargain collectively through representatives of their own choosing." The Board has long recognized that "the rights guaranteed to employees by the Act include the full freedom to receive aid, advice, and information from others, concerning those rights and their enjoyment." Such freedom is meaningless, however, unless the employees are also free to de- termine whether or not to receive such aid, advice, and information. To force employees to receive such aid, advice, and information impairs that freedom; it is calculated to, and does, interfere with the selection of a repre- sentative of the employees' choice. And this is so, wholly apart from the fact that the speech itself may be privileged under the Constitution. In the Fisher Governor case," issued by the Board on December 31, 1946. Chair- man Herzog made the following observation in respect to the compulsory audience issue of that case : Although I believe that the Clark Bros. case was correctly decided on the facts presented there, a proper respect for the character of the constitutional question involved should impel this Board to extend the doctrine to other un- fair labor practice cases at least until the Circuit Court has had an opportu- nity to pass upon that test case. On January 3, 1947, the Regional Director issued his first Report on Objec- tions. On June 6, 1947, he issued his second Report on Objections. On July 29, 1947, the Circuit Court of Appeals issued an Opinion granting en- forcement of the Board's order in the Clark Bros. case." As to the captive audience theory of the case, the Court made the following statements: The Board argues that one of the rights guaranteed employees by section 7, 29 U. S. C. A. § 157, is the right to be 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 60 Matter of Fisher Governor Company, 71 N. L. R. B. 1291, 1303-4. 11 N. L. R. B. v. Clark Bros. Co., 163 F. 2d 373 (C. A. 2). 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to matters of organization . But the present case does not call for 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 com- pany time and pay , provided a similar opportunity to address them were accorded representatives of the union. . . . But in the case at bar the respondent not only engaged in the unfair labor practices already discussed but entered upon by aggressive antiunion cam- paign which wound up with the president 's speech at the compulsory meeting. one hour before the voting began. In this circumstances we believe the Board was justified in finding that the respondent 's conduct was coercive and an interference with the employees ' right to self-organization , despite the. generally unexceptionable character of the president 's remarks. Following the enactment of the Labor Management Act of 1947 , the Board, in Matter of Babcock & Wilcox Co.," overruled its policy as to speeches delivered by employers to "captive audiences" of employees , insofar as unfair labor practices proceedings are concerned , stating : . . . the language of Section 8 (c) of the amended Act, and its legis- lative history, make it clear that the doctrine of the Clark Bros . case na longer exists as a basis for finding unfair labor practices in circumstances such as this record discloses. In view of the factual differences between the Clark Bros. case and the pre- election conduct of the Respondent , the fact that Court in the Clark Bros. case did not hold that the captive audience feature of the case was in itself violative of the Act, and subsequent amendments to the Wagner Act , and the Board's revoca- tion of the captive audience theory, the Respondent argues in its brief that "the 'captive audience theory' as laid down by the Board in the Clark Bros. case, was error and not binding on Respondent in August 1946 or at any other time. The Amendment to the National Labor Relations Act [Sec. 8 (c) ] made no change in the law, but merely wrote into the legislation the former holding of the Supreme Court of the United States."" The General Counsel in his brief urges the propriety of the Regional Director's reliance upon the captive audience theory of the Clark Bros . case, an outstanding decision of the Board at the time he issued his Report on Objections , and argues that since the Report on Objections became final when made and "was made under the law existing at the time , the application of this law was proper and is not. affected by subsequent changes in statute or decisions." 64 52 77 N. L. it. B. 577. as In this regard„ the Respondent relies upon Thomas v. Collins, 323 U. S. 516 ; N. L. R. B_ v. Virginia Electric & Power Co., 314 U. S. 469; Virginia Electric & Power Co. v. N. L. R. B., 319 U. S. 533; N. L. R. B. v. American Tube Bending Co., 134 F . 2d 993, cert . den. 320, U. S. 768. 541n support of his argument, the General Counsel relies upon Warring v. Calpoys,. 122 F. 2d 642, wherein the District Court made the following statement : When a case is decided it is expected that people will make their behavior conform to the rule it lays down and also to the principle expressed in so far as it can be determined. This is true whether the decision is regarded as "the law", "the best evidence of the law", or "a prediction of what the court will do next time". When, hard cases arise nndor the principl,,. count^r principles are emphasized, distinctions: pointed out, and the determination of what is significant may become easier or more difficult. If, at last, the first decision is overruled, then there is new law, better evidence, or an enlightened basis for prediction. Those transactions which occurred between the two decisions, are, for the most part accepted history. This is true- MERRIMAC HAT CORPORATION 365 Although the Respondent's ingenious argument is in some respects persuasive, the undersigned is of the opinion that it is not determinative of the issue as to whether the Regional Director erred as a matter of law in relying upon, and applying, the Clark Bros. case in his Report on Objections. This conclusion is based upon the following considerations: (1) In reversing its position as to the captive audience theory of the Clark Bros. case, the Board, in the Babcock case, confined such reversal of .policy to unfair labor practice proceedings.65 (2) The Regional Director in issuing his Report on Objections was acting in a representa- tion proceeding and not an unfair labor practice proceeding. (3) The Board has indicated in Matter of General Shoe Company 88 that in determining whether conduct of an employer prevented a free choice by the employees in a Board election, the Board may be persuaded to set aside the election by evidence which might not be sufficient to support a charge of unfair labor practice. This conclusion is also in accord with the principles established by the courts in cases dealing with issues as to arbitration proceedings and awards. The general rule is that awards of an arbitrator are not subject to review for errors in matters of law unless the intent of the arbitrators to follow the law appears either on the face of the award or in the submission agreement ; but in order to justify a modification of the award because of error in applying the law, the mistake of law must be plain and palpable 64 However, if the error alleged relates to an interpretation of a doubtful point of law, on which no settled principles exist, the award will not be modified even though the court might have decided the law differently.68 Applying these principles to the issue under discussion, it is clear that, even If the Respondent's argument as to the effect to be accorded the Clark Bros. case be accepted (an assumption which the undersigned has heretofore rejected), the Regional Director's interpretation of, and reliance upon the captive audience theory of the Clark Bros. case in his Report on Objections was not a clear and palpable mistaken interpretation of the law. At most, it was, under the Respond- ent's theory, a misinterpretation of a doubtful point of law. Not being an obvious error in law, the Regional Director's rulings in respect to the captive audience issue were neither arbitrary nor capricious. In view of the fact that (1) the Clark Bros. case was an outstanding decision of the Board, establishing Board policy in respect to the "captive audience" theory, at the time the Regional Director issued his Report on Objections, (2) the Circuit Court subsequently affirmed the Clark Bros. case, (3) the Regional Director's findings of interference by the Respondent with the election encompassed both the anti-union campaign of Pitts and Beeland's address of a compulsory audience of employees, (4) the Board's reversal of the captive audience features of the Clark Bros. case related only to unfair labor practice proceedings, (5) the Board even though a person had presented, in proper fashion, his case to the courts. His rights being finally determined, an attempt to reopen the question, in view of the new enlightenment, would be greeted with the powerful answer of res judicata. BG Chairman Herzog's limitations upon further application of the captive audience doc- trine, as announced in the Fisher Governor case, was likewise confined to unfair labor practice proceedings. 66 77 N. L. R. B. 124. 57 E. g., U. S. v. Farragut, 22 Wall. (89 U. S.) 406, 420; Burcheil v. Marsh, 17 How. (58 U. S.) 344; Carey v. Herrick, 146 Wash. 283, 263 P. 190 ; Boston Water Power Co. v. Gray, 6 Mete. (47 Mass.) 131. 68 E. g., Smith v. Boston and Maine Railroad, 16 Gray (82 Mass.) 521, 529; City of Ports- mouth v. Norfolk County, 31 Graft (72 Va.) 727, 734 ; Brodhead-Garrett Co. v. Davis Lum- ber Co., 97 W. Va. 165, 124 S. E. 600, 602; Mathews v. Miller, 25 W. Va. 817; School Dist. No. 5 of Snohomish County v. Sage, 13 Wash. 352, 43 P. 341, 343. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may set aside an election oil evidence that might not support a finding of unfair labor practice, and (6) the Regional Director's alleged error in law, under the Respondent's theory, was based upon an interpretation of an extremely doubtful point and accordingly, under the principles of arbitration cases, did not constitute sufficient grounds for reversal of his findings, as discussed more fully above, the undersigned concludes and finds that the Regional Director's reliance upon the -captive audience features of the Clark Bros. case was not a mistake of law on his part and that his rulings were consequently neither arbitrary nor capricious .because of such reliance upon the Clark Bros. case." 5. The Regional Director's refusal to conduct a hearing In its brief, the Respondent alleges that "the Regional Director denied Respondent due process of law. The Regional Director was arbitrary and -capricious in not allowing Respondent an opportunity to be heard, in refusing a reconsideration and in refusing additional investigation." The chief steps in the representation proceeding and the principal rulings of the Regional Director, on which the Respondent's argument is based, as well as other related incidents in the proceeding, occurred as follows. On November 23, 1946, the day after Field Examiner Hall completed his investigation of the Union's objections to the first election, the Respondent wrote the Regional Director, setting forth further details as to its position in respect to the Union's objections, complaining of certain campaign tactics of the Union, and, in addition, stating: Several days ago your Mr. Hall came to the office of the company. He informed us that he had been in Greenville several clays investigating the union's accusations. During this time, and for several days before making his presence known to officials of the company, Mr. Hall had been constantly in company with the union representative and visiting a large number of our employees in their homes under the guidance of the union. During his stay in this vicinity, Mr. Hall used Montgomery as his headquarters and commuted daily to and from Montgomery in the union representative's automobile. His reason stated for this was that he had no other means of reaching the employees whom he wished to question. On Friday, Mr. Hall came to our office and informed us that there were some of our employees whom he had not been able to contact in the manner. stated above and that he wished these called in to see him. We feel that Mr. Hall occupies the position of an impartial investigator of the United States Government and that his acts should be fair to those of our employees who are against the union as well as the union members. We consider that his constant association with the union officials has served to lend the backing of the Government to the complaints of the union, thus bringing our management into further disrepute and bearing unduly on the free choice of all employees under the law. Although the letter was not acknowledged by the Regional Office ( indeed, no request for official action was made in the letter), the Regional Director testified credibly that lie considered the letter along with other documents, correspondence, and evidence in making his Report on Objections, issued on January 3, 1947. sv The same conclusions apply and are hereby made to Hall 's reliance upon the theory of the Clark Bros . case in his report to the Regional Director. MERRIMAC HAT CORPORATION 367 On January 8, 1947, the Respondent by letter requested the Regional Director to reconsider his rulings announced in his Report on Objections and to give the Respondent an opportunity to be heard further in the matter. In brief, the Respondent urged such action on the ground that (1) no authority or juris- diction existed "in the Regional Director of the National Labor Relations Board to proceed as it has in this matter or to make any decision with respect to a new election which would not be subject to review by higher authority," (2) Field Examiner Hall who investigated the Union's objections was biased and prejudiced against the Respondent, as evidenced by the resuure of his conduct set forth in the Respondent's letter of November 23, 1946, supra,, and, further,. that Hall "made no effort to arrive at a complete, impartial analysis of the facts involved," (3) the evidence did not sustain the Union's objections, and (4) the voiding of the election, with a possibility of an imminent new election,. subjected the Respondent's employees "to further irritations and upsets affecting their production and income, and is in violation of the rights of a majority of the employees to be free from such interference after they have given an unequiv- ocal answer concerning their desires in the matter of representation by the. Union." The Respondent's earlier complaints against Hall's conduct of the investigation having been formalized in a charge of bias and prejudice, Hall, at the Regional Director's request, submitted to the Regional Director on January 13, 1947, a statement, setting forth Hall's answer to the Respondent's charges. According to LeBus' credible testimony, lie reviewed the entire file in the representation case in the light of the Respondent's request for reconsideration and on January 15, 1947, lie issued an order denying the Respondent' s request for reconsideration for the reason that all issues urged by the Respondent had already been considered by the Regional Director in his investigation and Report on Objections except the contention that he acted without authority to sustain the objections and direct that a new election be held. In respect to the latter contention, the Regional Director stated that the Agreement for Consent Election gave him authority to take such action.A° On January 24, 1947, the Respondent filed with the Board in Washington, D. C., a request that the Board review the action taken by the Regional Director, permit the RespoKient to file a brief and present oral argument before the Board, and stay the action of the Regional Director pending a review by the Board or a court. On January 29, 1947, the Respondent's request for review was denied by the following letter from Oscar S. Smith, Director of Field Division for the Board: Consistent with its decision in Ferriss-Lee Lumber and Manufacturing Company, Case No. 15-R-1803, decided December 12, 1946, the Board, as a matter of policy, will not consider your request of January 24th to review the action taken by the Regional Director of the 15th Region in the above- entitled matter. The Board has consistently refused to consider the merits of objections to the rulings of Regional Directors on matters arising out of consent elections on the theory that it feels itself bound by the commitments of the parties to accept as final and binding the determinations of Regional Di- rectors. However, where these matters are pertinent to the issues arising out of an unfair labor practice proceeding , the Board will disturb the rulings 0 Exceptions were duly taken by the Respondent to this ruling of the Regional Director. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Regional Directors only if it appears that such rulings are clearly arbitrary or capricious. In view of the foregoing, your request that the Board take immediate action to review the consent election proceedings in this case and give the company an opportunity to file a brief and present oral argument is denied. On March 25, 1947, pursuant to the direction of the Regional Director, a second election was conducted and won by the Union. On March 31, 1947, the Respond- ent filed objections to the conduct of the election and to conduct affecting the results of the election. In addition to dealing with alleged irregularities in the conduct of the ballot, the objections alleged that the Regional Director had no authority to proceed with the second election for various reasons and again raised the question of Hall's alleged bias and prejudice against the Respondent. In its objections, as well as subsequent correspondence and conferences with the Regional Director, the Respondent strongly urged that a hearing be held on its objections. The Respondent requested that the Regional Director himself investigate the Respondent's objections. However, in view of the Respondent's charges of collusion by the Regional Director with the Union, the Regional Director declined to make the investigation and informed the Respondent that he was assigning E. R. Ormsbee, an experienced Field Examiner, to conduct the investi- gation. The Regional Director testified credibly and without contradiction that at a conference with counsel for the Respondent, the Regional Director stated that he would determine whether to conduct a formal hearing after the completion of Ormsbee's investigation and informed counsel that the Respondent might have full opportunity to submit any evidence it desired. According to LeBus' credible testimony, Ormsbee was instructed to investigate the allegations in respect to Hall's conduct, to the Regional Director's alleged collusion with the Union, and to some of the Union's objections to the first election., Moreover, it was agreed with counsel for the Respondent that Ormsbee' s interviews with employees should be recorded by a court reporter, though in no sense was the investigation to be a formal hearing with counsel present. From April 20 to 23, 1947, Ormsbee conducted his investigation as to the Re- spondent's objections to the second election, as well as to certain objections of the Union to the first election. A transcript of his interviews with employees and supervisors was made by a court reporter. The investigation did not take the form of a hearing and counsel for the Respondent was. not present when Ormsbee interviewed employees, although counsel was present when super- visors and officials of the Respondent were questioned by Ormsbee . There is no contention that the Respondent was denied an opportunity to present any evidence or information it desired to Ormsbee. On June 6, 1947, the Regional Director issued his Report on Objections to the second election, finding the Respondent's objections to be without merit and de- termining that the Union was the statutory representative of the Respondent's employees. In addition to ruling upon the objections, the Regional Director made the following statement in the Report: The employer has submitted information to support a request for re- consideration of evidence considered in the decision by the undersigned in setting aside the election conducted on August 15, 1946, and has urged that a formal hearing be authorized by the undersigned as part of this reconsidera- MERRIMAC HAT CORPORATION 369 on and as consideration of the objections to the second election conducted on March 25, 1947. Evidence submitted to the undersigned for consideration of the employ- er's request that the undersigned reconsider the decision to set aside the first election has only served to further convince the undersigned that the decision to set aside the election of August 15 was proper. Therefore, the undersigned denies the employer's request that the decision setting aside the election of August 15 be reconsidered. The undersigned has considered substantial evidence revealed by affi- davits and sworn statements of employees, supervisory officials of the em- ployer and representatives of the union in finding the objections to the second election held on March 25, 1947, are without merit. Therefore, the employer's request that a formal hearing be conducted as part of the in- vestigation by the undersigned in considering its objections is hereby denied. On June 9, 1947, the Respondent again requested that the Board in Wash- ington, D. C., review the Regional Director's actions and rulings in the repre- sentation proceeding. On June 13, 1947, Oscar S. Smith, Director of Field Division, notified the Respondent that the Board would not consider the request for review of the Regional Director's actions "for the reasons given by us in our letter of January 29th," set forth above. Turning to a discussion of the Respondent's contentions , the Respondent states the following in its brief in support of its contention that a formal hearing should have been conducted by the Regional Director at some stage in respect to the objections: Nothing is better settled in American jurisprudence than the necessity for "due process of law." Due process means an opportunity to have a day in court at some stage of the proceeding. It does not necessarily have to come before the findings-but it must come before or after a proceeding that will test and review the findings before the matter is concluded. The Rules and Regulations of the National Labor Relations Board pro- vide for a hearing where "substantial and material issues are raised" in exception to a Report on Objections. Such would have to be the case or violate the due process of law clause of the basic law of the land. The undersigned is of the opinion that the Respondent's argument that the Regional Director denied the Respondent due process by refusing to conduct a hearing is without merit. The Respondent's position is not supported by the Board's Rules and Regulations or by the Board's rulings in respect to consent elections. Section 203.48 of the Board's Rules and Regulations 01 set forth the provi- sions authorizing consent election agreements. Subsection (a) thereof author- ized the employer and the labor organization to enter into "a consent election agreement . . . leading to a determination by the Regional Director. . . ." Subsection (b) authorized the same parties to "enter into an agreement providing for a waiver of hearing and a consent election leading to certifi- cation by the Board." By these provisions, the first clear distinction ' N: L. R. B. Rules and Regulations , Series 4 , effective September 11, 1946. The Rules and Regulations in effect at the time the Agreement was executed contained substantially the same provisions given in the text. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the two types of agreements is apparent: Subsection (a) provides for- determination of the statutory representative by the Regional Director, whereas- Subsection (b) provides for "certification by the Board." A further distinc- tion between the two types of agreements is the provision under Subsection (a) that "the rulings and the determination by the Regional Director of the- results thereof shall be final." No mention is made for a hearing. However, Subsection (b) establishes "post-election procedure" to litigate issues such as are here involved. leading to a decision by the Board. As previously found, the Respondent entered into a valid agreement author- ized by Subsection (a). It follows that thereby the Respondent voluntarily foreclosed itself from recourse to the procedure prescribed by Subsection (b),, more particularly, to a hearing on the objections. Reference has earlier been made to the fact that such agreements are valid and have been enforced by the Board and the courts, and that the rulings of the Regional Director made pur- suant thereto are final and binding unless arbitrary or capricious. In another case, the Board has, under similar circumstances, found no merit in the conten- tion that a Regional Director should have conducted a hearing on objections- arising out of a consent election 03 In view of the Rules and Regulations, the terms of the Agreement voluntarily executed by the Respondent and the Union,. and the precedents established by the Board and the courts, the undersigned finds that the Respondent was not denied due process of the laws by the Regional Director's refusal to conduct a hearing upon objections. The question remains, however, of whether the Regional Director's rulings in the above matters were arbitrary or capricious. ' In respect to the Regional Director's denial of the Respondent's request for reconsideration on January 15, 1947, the record supports the conclusion of the Regional Director above re- lated, namely, that the grounds for the request raised no new issues except the question of the Regional Director's authority to set aside the election. The Respondent contends that the allegations as to Hall's conduct and investigation were new issues requiring a hearing or investigation. However, in formulating his Report on Objections, the Regional Director had before him the results of Hall's investigation and also Hall's recommendations and the same charges of bias and prejudice had been made informally in the Respondent's letter to the. Regional Director dated November 23, 1946, and the Regional Director testified credibly that he had considered that matter before issuing his Report on Ob- jections. As to the charges of bias and prejudice, themselves, the Regional Director inquired of Hall for his version of the allegations. For the same- reasons that impelled the undersigned to find above that neither Hall's conduct nor the nature of his investigation established that he was biased and prejudiced. against the Respondent, the undersigned finds that the ruling of the Regional Director, in effect finding no merit in the Respondent's allegations as to Hall,. was not arbitrary or capricious. Nor was his failure to hold a hearing upon the Respondent's allegations.83 As for the Regional Director's refusal to grant the Respondent's request for a hearing upon objections, it has been found that, as a matter of law, the Regional Director was not required to hold such a hearing and the record shows that the iequest was given full consideration by the Regional Director, that the- Respondent was given every opportunity to produce any information it desired 62 Matter of Miehle Printing Press h Manufacturing Co., 58 N. L. R. B. 1134. Cf.- San Ship Employees Association v. N. L. R. B., 139 F. 2c1 755 (C. A. 3). 63 Cf. Matter of Stonewall Cotton Mills, 78 N. L. R. B. 28. MERRIMAC HAT CORPORATION 371 during Ormsbee's investigation, that Ormsbee's investigation encompassed part of the Union's objections in the first election, and that upon the completion of Ormsbee's investigation, the Regional Director concluded that a hearing was unwarranted. In view of these facts and upon the entire record, the under- signed finds that the Regional Director did not rule arbitrarily or capriciously in denying a hearing upon objections. 6. Other contentions as to actions and rulings of the Regional Director and Hall At'the conclusion of his report on the results of his investigation filed with the Regional Director on December 18, 1946, Hall made the following statement, after setting forth a resume of the contentions of the parties as to the objections and the evidence relating thereto, as well as his recommendations as to the validity of the objections: If and when a new election is held, the Union has requested that the elec- tion be held away from company property and that the employees be per- • mitted to vote on their own time before or after work, or during noon hour. I suggested that they might look around the immediate vicinity of the plant .and, if a new election is held, be ready to indicate a possible polling place such as a room of a house, a filling station, or some business establishment that could be vacated during the time the polls are open. There is a new filling station directly across the street from the plant which might have sufficient room for a polling place. I was unable to locate the operator of the station when I was there. The cafeteria in which the election was held in August would not be available at this time inasmuch as it is being used as such during the hours that the election would be held. In August the cafeteria had not yet been opened. The union stated that it felt that an election should be held and won by a big majority as it has signed up well over a majority of the employees on new cards since the other election was held. Though not expressly stated, the Respondent, in effect, contends in its brief that these paragraphs indicate bias and prejudice on the part of the Board agents against the Respondent and that the Board agents were acting in col- lusion with the Union. LeBus testified credibly in respect to Hall's statement regarding a polling place should a second election be held, that because of budgetary and limited personnel considerations, as a general rule, Field Examiners canvassed the facilities for a polling place for a second election while they were in the vicinity investigating objections, when in their opinion there seemed to be merit in the objections. That is, feeling that the objections would be sustained, the Field Examiners 'investigated possible polling places for a second election while they, were in the vicinity, thereby avoiding the waste of money and time to make a return trip to the vicinity to determine such considerations after it was determined to hold a new election.Q4 In respect to the second paragraph above quoted from Hall's report to the Regional Director, both Hall and the Regional Director testified credibly that one of the customary steps in investigating objections to an election is to deter- mine whether the labor organization desires to participate in another election if the objections are sustained or to request permission for withdrawal of the petition. In the event that the labor organization should desire to abandon 64 Hall's testimony is corroborative of the Regional Director on this point. 857829-50-vol. 85-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the matter by requesting a withdrawal of the petition, with the Regional Director's approval, the proceeding would be thereby closed, obviating the neces- sity of further processing the case. The undersigned credits the testimony of Hall and LeBus and finds that in view of their explanations of general policy, the above-quoted paragraphs from Hall's report to the Regional Director do not establish bias and prejudice on their part or collusion between them and the Union. The Respondent also asserts that in view of the Respondent's charges against Hall, the Regional Director acted arbitrarily and capriciously by assigning Hall to conduct the second election. The Regional Director testified credibly that at the time of the second election he had four Field Examiners and four temporary election examiners on his staff, that the Union did not request Hall's assign- ment to conduct the second election, and that he assigned Hall and two temporary election examiners to conduct the election for the following reasons: (1) Hall's acquaintance with, and knowledge of, the parties, the locale, and the plant facili- ties made his selection imperative, because at the time of his assignment to conduct the election, the Respondent was refusing to cooperate in the holding of the election in such matters as the selection of the polls and the furnishing of a pay roll of employees to be used to determine eligibility to vote. Under such circumstances, it would be necessary to conduct the election by affidavit during the free time of employees." It was therefore important to have the election conducted by a Field Examiner who was acquainted with supervisors, the shift operations of the plant, the possibilities for locating the polls, and the hours employees worked. (2) Hall, in the Regional Director's opinion, was competent and experienced in the conduct of Board elections. (3) The Regional Director had found the Respondent's charges against Hall to be without merit and believed that to transfer Hall from further processing of the case would abase the morale of Hall and the staff of the Regional Office. In view of these reasons given by the Regional Director, the undersigned is persuaded and finds that the Respondent's contentions that the Regional Director acted arbitrarily and capriciously in assigning Hall to conduct the second election are without merit. 7. Conclusions Upon the foregoing and the entire record, the undersigned concludes and finds in respect to the representation proceeding that the conduct and rulings of the Regional Director were not arbitrary or capricious and that the conduct and investigation of Hall were not biased and prejudiced. The undersigned further concludes and finds that on and after June 6, 1947, the Union was the duly designated bargaining representative of a majority of the employees in the aforesaid appropriate unit, and that pursuant to the pro- visions of Section 9 (a) of both the Wagner Act and the Act, the Union was, on June 6, 1947, and at all times thereafter has been, and now is, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 65 That is, Board agents conducting the election would be required to question each voter and obtain from each voter an affidavit setting forth the title of his position and the nature and length of his employment . See Matter of Poster Cotton Mills , Inc., 73 N. L. R. B. 673; Matter of Griffin-Goodner Grocery Company, 73 N. L. R. B. 1332. MERRIMAC HAT CORPORATION D. The refusal to bargain 373 By its letter of July 24, 1947, set forth previously, the Respondent admittedly refused to bargain with the Union. Its reasons for such refusal have been con- sidered and found to be without merit. The undersigned accordingly finds that on July 24, 1947, and at all times thereafter, the Respondent has refused to bar- gain collectively with the Union as the exclusive representative of its employees in the appropriate unit, and thereby has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of both the Wagner Act and the Act. E. The alleged discriminatory discharge of el. D. Parker A. D. Parker entered the Respondent's employ in late 1943 or early 1944 and was discharged on April 8, 1947. He was employed as a member of a team of 5 or 6 employees operating a twister on the second shift from 2 p. m. to 10 p. m.8° This operation, a part of the production process, consisted of putting damped wool felt hat bodies through a huge machine, which by pressure from many rollers strengthened the fibers of the felt. The various duties in connection with the operation, such as folding the hat bodies, rolling the hats in a canvass, dampening the hats, refolding the hats, placing the hats in the machine and removing the hats and straightening their edges were shared by the members of the team. The earnings of the team were based on the production of the team as a whole for the entire day and were divided among the members of the team. For example, if a team of 5 employees in a day's work performed the twister operation on 200 hat bodies, each member of the team was credited with the production of 40 hat bodies, and was accordingly paid. The earnings of the team as a whole were thus pooled and divided evenly among the members of the team, and if one member of the team failed to perform his share of the work, the amount of pro- duction of the team decreased, adversely affecting the earnings of each member of the team. When the Union commenced its organizational activities among the Respond- ent's employees early in January 1946, Parker joined the Union and openly and actively lent his support to the Union's campaign. Admittedly, his membership in, and activities on behalf of, the Union were known to the Respondent. Parker testified that sometime before the consent election held on August 15, 1946, he had the following conversation with Lowry, one of the officials of the Respondent: [Lowry] asked me about how much I had made and about my wife making so much and my daughter, and he says, "That's more money than you ever made before." And I said, "I made some more money different ways." He says, "Not so good as this way." I said, "I think I know what you are hinting at, it's got to do with the union." He says, "That's it." I said, "Have you some facts to substantiate about it?" He says, "I don't want nothing about it." And that was all that was said. B° Parker worked on Twister Team 3. On the first shift two twister teams were employed. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lowry did not testify. Although the undersigned has not credited other testimony of Parker and was not particularly impressed by Parker' s demeanor on the stand, the undersigned credits this testimony of Parker. Vice-President Beeland testified that the plant manager reported that Parker had violated the working rules of the Respondent and Beeland summoned Parker to Beeland's office about a month or more before the August 15, 1946, election. According to the credible testimony of Beeland, the following conversation ensued in the presence of Lowry : I told Mr. Parker that I had been having some complaints about his dis- tributing literature, soliciting memberships on Company time, Company property, that it was in violation of the rules and that I wanted to talk to him about it. . . . Mr. Parker replied that he couldn't read. I said, "Well, the rules are posted on the board and they are in plain English" and I think Mr. Lowry spoke up and said, "You can get somebody to read them to you." At that time I said, "Well, you don't have to bother so much about the written rules. Take the rules of common sense. That's what they are. When you work for the company you are supposed to make them a satisfactory employee and be satisfied to observe the rules of common sense, do the job as it should be done and soliciting membership or distributing literature of any kind on Company time is a violation of the rules." . . . then he injected the union question into it. He said, "Are you jumping on me because I am a member of the union?" I said, "No, I'm not interested in whether you or anyone else is a member of the union. We are operating a business and not bothering about the union one way or the other. I don't care how you or any other employee feels about that. All I want is observance of the rules." And he said, "Well, if you are picking on me because I am a member of the union I would like for you to know I am a member of the union. I am for it. I will observe your rules and I won't do these things again on Company time but on my time from now on I am fighting for it until it comes in." And I said, "You are certainly welcome to do that." I said, "Confine yourself to that and it will be all right." On February 3, 1947, Parker was summoned to the office of Production Manager Arthur F. Crimmins. In the presence of Crimmins, Personnel Manager Knight, and Grady Smith, foreman of Parker, a "warning slip" bearing the date of Febru- Bl Parker testified that the conversation with Beeland and Lowry, whom he identified as the "personnel man," occurred between August 15, 1946, and May 25, 1947, the respective dates of the two elections conducted by the Board among the Respondent's employees . Parker testified as follows in respect to the interview with Beeland and Lowry : ' A. Mr. Lowry said, "Have a seat," and T sat down. And he says, "We got several affidavits on you coming in here bringing union literature." And I said, "No, sir, not me." "Yeah, we got it on you, " he says. "Several people wrote affidavits you been bringing union literature." And I said, "No, sir ; not me. I 'haven't brought none only on my own ' time. I have brought literature on my own time." And he says, "We don't want you to bring it in here at all. You can't bring it here on your own time or on the Company's time." Q. Who was it said that, Mr. Lowry or Mr. Beeland?' A. Yes, I believe that's all he said , right now I don't recollect no more but Mr. Robert [Beeland ] took over and he says , "I guess you like your job or you want your job or you wouldn't be here." And I said, "Yes sir ; I do, Mr. Robert. I like my job all right." MERRIMAC HAT CORPORATION 375 ary 3, 1947, and the number of "2-Final," and containing the following notation, was given and read to Parker : This Warning Slip is being given for violation of Company Rules. On January 31, 1947, you left your Department & Machine to operate the Auto- matic Stiffening Machine in the Stiffening Department, which is in violation of Company Rules. You quit about 9: 30 P. M., most of the time causing dis- ruption of your twister team for lack of work until quitting time. On January 31, 1947, you left your Department and went to the Dye House without permission. We have numerous other violations on record ; therefore, this is a final warning.88 According to the uncontroverted and credible testimony of Chimmins, he ex- plained to Parker, when the slip was given him, that "we would like to have his cooperation. We would like to have him work in coordination with the other members of the twister team and that we wanted to give him every opportunity to show us he could do his job properly and therefore give him another chance to go back and uphold the standards of his job." Parker complained that this action was taken because of his union membership and activities. On April 8, 1947, shortly after he commenced work, Parker was sent by his foreman to the office of Personnel Manager Knight. The latter informed Parker that he was discharged for the reason that he had not fulfilled the requirements of his job and gave him a separation notice bearing as the reason for the discharge, "Inefficient in performing his duties." In answer to Parker's questions, Knight informed him that members of Parker's team had given statements against Parker but denied Parker's request that the teammates be brought to the office and the matter discussed. Footnote 67-Continued And he says, "You got to have to quit fooling over there and brining (sic) literature in, on company time and on the company premises and quit frusterating with that or if you don't you won't have a job." a a a a o 0 0 Q. Did you make any reply to that? A. Yes, sir. He says, "If that is the way you feel about the union ." I said, "I am 100 per cent and will be 100 per cent until it comes in." As noted previously, Parker did not impress the undersigned as a reliable witness. Furthermore, the undersigned has not credited other portions of his testimony controverted by witnesses for the Respondent. As to the date of this conversation, Parker was vague. at first stating that it occurred prior to August 15, 1946, and later asserting that it occurred between the two elections. Inasmuch as Wilburn W. Knight became personnel manager on September 11, 1946, it seems highly probable that Parker's interview with Beeland and Lowry occurred prior to the time that Knight became personnel manager. Upon the entire record and the undersigned's observation of the witnesses, the under- signed accords no credence to Parker's version of his interview with Beeland and Lowry, but credits Beeland's testimony and finds that the interview occurred as related in the text above. ea As to the warning slip system and the number of slips issued before ultimate discharge, there is some conflict in the evidence. Inasmuch as the personnel office prepared the warn- ing slips and kept records of their issuance, the undersigned credits the testimony of Per- sonnel Manager Knight on this issue. According to Knight, two warnings were given an employee before his discharge. The first warning might be in the form of a warning slip or might be made orally, but a record was made of such reprimand. The second warning was issued in writing on a form provided for such purposes. This was the final warning, as was stated on the slip given Parker on February 3, 1947, subsequent to his oral reprimand by Beeland. If the employee did not heed the warnings, his employment was terminated. At the time of the hearings, the warning slip system was no longer in effect, having been gradually supplanted by a different method . Knight testified that the use of warning slips had been abandoned by June 1947. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends that-Parker was discharged because of his union membership and activities. The Respondent, in its brief, states, "A. D..Parker was discharged not because of Union activity, but because of his constant viola- tion of Company rules, his continuing disregard to warnings given him by Com- pany officials concerning the quality of his work, his loafing on the job, quitting 30 to 45 minutes before quitting time, loitering in the rest rooms, going into other departments of the plant, and other like conduct." According to Parker, the only warnings given him in respect to. his conduct or work performance were Beeland's reprimand in the summer of 1946, and the "warning slip" of February.1947. He denied that any of his supervisors or team- mates ever complained to him about the low production record of Team 3 or about Parker's quitting work before the end of the shift, and that any supervisor ever remonstrated with Team 3 about their low production. He admitted that the earnings of Team 3 were substantially less than those of Teams 1 and 2, but at- tributed the difference to Foreman Jack Fulton's instructions that Team 3 should restrict their production so as not to exceed a wage of $7 per team mem- ber per' day. Parker's testimony is overwhelmingly controverted by the credible and mutually corroborative testimony of his fellow teammates and supervisors, called as wit- nesses by the Respondent, as well as by documentary records of the comparative production of the three twister teams. For several months before Parker's discharge the production of Team 3, on which Parker worked, had fallen below that of the other two twister teams. Parker's teammates attributed their low production to Parker's lack of speed in his work performance, his frequent trips away from the twisting machine to other departments, his quitting before the end of the shift, and his inefficient work performance in operating the machine. They complained of Parker's con- duct to their foreman, Grady Smith,69 who in turn reported. Parker's conduct to his superior, David Sibert, as well as to Production Manager Crimmins, Personnel Manager Knight, and Vice-President Beeland, recommending that Parker be discharged. Beeland testified credibly that various of his subordinate supervisors had rec- ommended Parker's discharge, that Production Manager Crimmins had so recom- mended on January 1, 1947, but that Beeland, the only official or supervisor of the Respondent with authority to effectuate the discharge of employees, refused to comply with Crimmins' suggestion, desiring "to be absolutely certain that [the supervisory staff] had done everything they should to make Mr. Parker fall in line. I didn't want any criticism coming up over why he was,fired." In February 1947, Crimmins again recommended that Beeland discharge Parker, but Beeland refused to do so, insisting instead that the warning slip be issued to Parker and that Parker be given another opportunity to comply with the work standards of his position. During this period, Foreman Smith frequently urged Team 3 to increase their production and also spoke individually to Parker about his conduct and work performance. When criticized by supervisors or his fellow teammates, Parker assumed a recalcitrant attitude, telling the employees with whom he worked that the Respondent "couldn't fire him or nothing" and refusing to increase his efforts. About a week or two before Parker's discharge, his teammates , being concerned about the low production of Team 3 and the resulting lower earnings of the team -and attributing the low production to Parker's inefficiency, complained 61 Smith succeeded Fulton as foreman over the twister teams in November 1946. MERRIMAC HAT CORPORATION 377 to Foreman Smith. Employees Ray Cauthen, Woodrow Kennedy, and Lister • Deavers requested that Smith transfer either Parker or them to another de- partment. About the same time, the fourth member of the team, John Branum; also complained of the low earnings of the team and informed Smith that Parker "stayed off the job too long at a time." Smith conferred with his superior and they drafted a statement to be signed by Parker's teammates to the effect that "they would quit if we didn't transfer A. D. Parker off the twister team . . . because he was laying down on the job, idling away too much time, staying out of the department too long." Cauthen, Kennedy, and Deavers voluntarily signed the statement. Shortly thereafter, Crimmins again recommended to Beeland that Parker's employment should be terminated. Beeland considered the matter a few days and authorized, Parker's discharge, which was effectuated on April 8. Beeland testified credibly that although earlier recommendations for Parker's discharge had been made, he refused.to accede to such recommendations because (1) of a .;general policy, in all such discharge cases of giving an employee opportunity to overcome his shortcomings and (2) organizers of the Union had on two occasions complained that foremen were "picking on" Parker and another union member. Beeland further testified that in view. of the Union's complaint, he "felt that perhaps the union officials and organizers were attempting to make a build up just such as has happened in this case" and accordingly refused to discharge Parker until he had been given ample opportunity to improve his work per. formance.°° -In support of its contentions that the production of Team 3 did not equal that of the other two twister teams, the Respondent introduced into evidence the weekly pay-roll records of the three twister teams for the year of 1947, and at the request of the General Counsel, supplied the same information for the year 1946. These records afford the following comparison of the average hourly earnings 7' of Team 3, on which Parker was employed, with those of Teams 1 and 2: 1946 Hourly average earnings Jan. 5 through Aug. 17 7° Hourly average earnings Aug. 24 through Dec. 14 Hourly average earnings for year 1946 Team 1__________________ $0. 72 $1. 01 $0.82 Team 2__________________ .71 .99 .81 Team 3__________________ . 72 .88 .77 70 The findings in this paragraph and 'the four preceding paragraphs are based upon the testimony of Vice-President Beeland, Foreman Smith, Twister Inspector Hamilton Lansdon, Production Manager Crimmins, Personnel Manager Knight, and employees Kennedy, Can- then, and Branum. Much of their testimony is undenied, is mutually corroborative, and is supported by documentary evidence in pay-roll records hereinafter discussed. Kennedy, Cauthen, and Branum denied that Jack Fulton, when foreman of the twisting machines, instructed them to limit their productions to the equivalent of $7 in earnings per day. Parker's testimony to the contrary is not credited, nor is his testimony in respect to his work performance, conduct, or warnings by the Respondent. Employee Deavers' testimony was in accord with that of his teammates. However, an organizer for the Union testified with respect to statements made to her by Deavers shortly after the discharge of Parker, thereby creating a conflict between her testimony and that of Deavers. The undersigned has not found it necessary for the purpose of this report to resolve such conflict of testi- mony or to rely upon Deavers' testimony as to any of the above findings. n The amount of earnings directly reflect the amount of production. 77 These dates refer to the end of the workweek . The first election was held on August 15, 1946. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1947 Hourly average earnings Jan. 18 Hourly average earnings Apr. 12 through Apr. 5 73 through Dec. 20 Team 1__________________ $1.07 $1.10 Team 2__________________ 1.07 1. 08 Team 3__________________ . 93 1.06 Although the work was distributed equally among the three teams- and the potential earning power of the teams was accordingly identical, it is significant, in the undersigned's opinion, that the earnings (and hence production) of Team 3 began to decline after the first election held on August 15 and lost by the Union 46 The production of Team 3 lagged considerably below that of Teams 1 and 2 until Parker was discharged and then began to increase, despite the fact that' a less experienced twister operator assumed the vacancy left on Team 3 by Parker's discharge, until by the end of the year, earnings of Team 3 were com parable to those of the other two teams 75 Considering these production records in the light of the facts heretofore found, the undersigned is of the opinion that the record establishes the Respondent's Contention as to the reasons for Parker's discharge. Briefly, for a period of several months before his discharge, Parker performed his work inefficiently, failing to carry his share of Team 3's duties. Despite' numerous warnings by his supervisors, Parker failed to change in his conduct or work performance. Although his membership in, and activities on behalf of, the Union were known to the Respondent, the undersigned finds in view of Parker's conduct and ineffi- ciency, as well as the Respondent's hesitancy in effectuating Parker's discharge; that such activities and membership did hot motivate the Respondent in its deci- sion to discharge Parker.46 Upon the entire record, the undersigned concludes and finds that Parker was discharged for just and sufficient cause and that the Respondent has not violated the Wagner Act or the Act by discharging him. 73 Parker was discharged on April 8, 1947. 74 In considering these records, it should be noted that at times five employees composed a team and at other times six employees were working on a team. James It. Pollard, who was head of the standards department and set and administered piecework rates, testified that it was easier for a team of five men to make a high rate of earnings than for a team of six, for the latter would have to utilize the machine at 100 percent capacity and efficiency to make high earnings. The pay-roll records afford some support to Pollard's testimony. Pollard impressed the undersigned as a reliable and honest witness; his testimony is therefore credited. 73 Employee Oscar MacVickery, a witness called by the General Counsel in rebuttal, testified that for about 2 weeks after Parker's discharge, he observed Foreman Smith and Twister Inspector Lansdon assist Twister Team 3 in the performance of its duties. This testimony was apparently offered by the General Counsel to explain the immediate Increase In production of Team 3 following Parker's discharge. Foreman Smith denied that any extra assistance was given Team 3 after Parker's discharge. From his obser- vation of the witnesses and upon the entire record, including the fact that MacVickery 'worked some 50 feet from the twisting machine and did not have an unobstructed view of the machine and that his testimony would not explain the continued increase in Team 3's production throughout the remainder of the year, the undersigned does not credit MacVickery's testimony. 76 The undersigned is of the opinion that the statements attributed to Lowry by Parker, made in August 1946, are so remote in point of time in relation to Parker's discharge and are so vague that they do not reflect upon the Respondent's motivation in the discharge of Parker. MERRIMAC HAT CORPORATION 379 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the 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 of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union represented a majority of the employees in the appropriate unit and that the Respondent has refused to bargain collec- tively with the- Union, the undersigned will recommend that the Respondent, upon. request, bargain collectively with the Union. Since it has been found that the evidence fails to sustain the allegations of the complaint as to A. D. Parker, it will be recommended that the complaint be dismissed as to him. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Hatters, Cap and Millinery Workers International Union., AFL, is a labor organization, within the meaning of Section 2 (5) of both the Wagner Act and the Act. 2. All production employees of the Respondent at its plant in Greenville, Ala- bama, excluding all office and maintenance employees and all supervisory em- ployees with authority to hire, promote, discharge, discipline or otherwise effect 'changes in the status of employees or effectively recommend' such action, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of both the Wagner Act and the Act. 3. United Hatters, Cap and Millinery Workers International Union, AFL, on June 6, 1947, was, and at all times thereafter has been, the exclusive representa- tive of all employees in the aforesaid appropriate unit for the purposes of collec- tive bargaining, within the meaning of Section 9 (a) of both the Wagner Act and the Act. 4. By refusing on July 24, 1947, and at all times thereafter, to bargain collec- tively with United Hatters, Cap and Millinery Workers International Union, AFL, as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Wagner Act and of Section 8 (a) (5) of the Act. 5. By the aforesaid refusal to bargain, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (1) of the Wagner Act and of Section .8 (a) (1) of the Act. 380 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of both the Wagner Act and the Act. 7. By discharging A. D. Parker, the Respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Wagner Act or of Section 8 (a) (3) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Merrimac Hat Corporation, Greenville, Alabama, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Refusing to bargain collectively with United Hatters, Cap and Millinery Workers International Union, AFL, as the exclusive representative of all pro- duction employees of the Respondent's plant in Greenville, Alabama, excluding all office and maintenance employees and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action ; (b) In any manner interfering with the efforts of United Hatters, Cap and Millinery Workers International Union, AFL, to bargain collectively with it in behalf of the employees in the aforesaid appropriate unit. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Hatters, Cap and Millinery Workers International Union, AFL, as the exclusive representative of all em- ployees in the above-described unit, with respect to wages, rates of pay, hours of employment, or other conditions of employment; (b) Post at its plant in Greenville, Alabama, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (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 ; (c) Notify the Regional Director for the Fifteenth Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is further recommended that the complaint, insofar as it alleged that the Respondent discharged A. D. Parker in violation of Section 8 (3) of the Wagner Act and of Section 8 (a) (3) of the Act, be dismissed. It is also recommended that unless on or before twenty (20) days from the date of the receipt of this Intermediate Report, the Respondent notifies the said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and MERRIMAC HAT CORPORATION 381 six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record, or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report- and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall,serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeo- graphed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 21st day of February 1949. FREDERIC B. PARKES, 2ND, Trial Examiner. APPENDIX A. NOTICE TO ALL EMPLOYEES 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, as amended, we hereby notify our employees that : WE WILL BARGAIN collectively upon request with UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, AFL, as the exclusive repre- sentative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, or other terms or con- ditions of employment. The bargaining unit is: All production employees at our plant in Greenville, Alabama, excluding all office and maintenance employees and all supervisory employees with au- thority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain with us or refuse to bargain with said Union as the ex- clusive representative of the employees in the bargaining unit set forth above. MERRIMAC HAT CORPORATION, Employer. Dated-------------------- By --------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.