H. Wenzel Tent & Duck Co.

H. WENZEL TENT & DUCK COMPANY 217 H. WENZEL TENT & DUCK COMPANY and AWNING & TENT WORKERS AND DECORATORS, LOCAL No. 39, AFFILIATED WITH UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, A. F. L. Cases Nos. 14-CA-587 and 14-CA-706. November 5, 1952 Decision and Order On March 21, 1952, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of the com- plaint with respect to such allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent filed a reply brief. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the the following additions.2 The unfair labor practices of the Respondent, found by us, in agreement with the Trial Examiner, occurring in connection with the operations of the Respondent, have a close, intimate, and sub- stantial 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. Order Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in these proceedings, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that H. Wenzel Tent & Duck Company, its officers, agents, successors, and assigns, shall : 1 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 'The Respondent's request for oral argument is hereby denied inasmuch as the recordr including the exceptions and briefs, adequately presents the issues and the positions of the parties. 101 NLRB No. 60. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Interrogating employees concerning their union affiliations, ac- tivities, or sympathies, or those of their coworkers, or warning or threatening its employees with economic reprisals because of their union membership or activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist Awning & Tent Workers and Decorators, Local No. 39, affiliated with Upholsterers' International Union of North America, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in its plants in St. Louis, Missouri, copies of the notice attached to the Intermediate Report and marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region (St. Louis, Missouri), shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent 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 riot altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourteenth 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 allegations of the complaint, as amended, to the effect that Respondent : (1) "unlawfully threatened to take away the rest periods and refreshments previously furnished by the Company to the employees, if they supported or joined the Union"; "informed one employee that he was being given more diffi- cult work because Respondent believed he was the leader of the Union"; (2) unlawfully refused to bargain; and (3) unlawfully 8 This notice shall be amended by substituting the words "A Decision and Order" for the words "The Recommendations of a Trial Examiner" In the caption thereof. If this Order is enforced by a decree of a United States Court of Appeals , the notice shall be further amended by substituting for the said words "A Decision and Order," the words, "A Decree of the United States Court of Appeals, Enforcing an Order." H. WENZEL TENT & DUCK COMPANY 219 failed and refused to reinstate or to offer to reinstate strikers follow- ing an unfair labor practice strike, be dismissed. Intermediate Report and Recommended Order STATEMENT OF THE CASE The above-captioned proceedings concern allegations that H. Wenzel Tent & Duck Company, herein called Respondent, "on or about May 10, 1951 , and at all times thereafter" refused to bargain with Awning & Tent Workers and Decora- tors, Local No. 39, affiliated with Upholsterers' International Union of North America, A. F. L., herein called the Union, and allegations that said Respondent by the aforementioned conduct, by interrogating and threatening its employees and by granting a wage increase on or about December 13, 1950, interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in the National Labor Relations Act, as amended, herein called the Act. It is also alleged that a strike occurred on May 16, 1951, because of the afore-mentioned conduct and that Respondent since December 6, 1951, has failed and refused to reinstate or to, offer to reinstate the strikers. The issues, framed by a com- plaint (as amended) and an answer (as amended) were litigated at a hearing in St. Louis, Missouri, before the undersigned on December 3, 4, 5, and 6, 1951. After the close of the hearing counsel for the General Counsel filed with the undersigned a motion to reopen record, consolidate, and amend complaint, which is hereby made a part of the record herein as General Counsel's Exhibit 1-J. Thereafter counsel for Respondent and counsel for the General Counsel filed with the undersigned a stipulation which is hereby made a part of the record herein. This stipulation provides inter alia for consolidation of the above- numbered cases, for receiving in evidence the afore-mentioned motion and charge upon which it is based together with affidavits of service of said documents, and for amendment of the complaint. After the close of the hearing, a brief was received from counsel for Respondent. There is no dispute concerning the following matters and the evidence reveals and the undersigned finds: (1) That Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act,' and (2) that the Union is a labor organization within the meaning of Section 2 (5) of the Act. Respondent denies that the Union, at the times material herein, represented a majority of its employees in an appropriate unit, denies that the unit appro- priate for the purposes of collective bargaining consists of "all production and maintenance employees' at its Eighth Street plant, excluding laboratory em- ployees, clerical employees, professional, and supervisory employees,' denies the unfair labor practices alleged and denies that the strike was an " unfair labor practice strike." Respondent further states it "has not bargained with the Union because Respondent was and is under no duty to bargain with the Union." 'Respondent is a Missouri corporation having its principal place of business in St Louis, Missouri, where it engages in processing of canvas and in the manufacture and sale of canvas products. Annually Respondent purchases raw materials valued in excess of $1,000,000 and approximately 90 percent of said materials is shipped to Respondent's St. Louis plants from sources outside Missouri. Annual sales are in excess of $1,000,000 and approximately 75 percent thereof represents products shipped from St. Louis, Missouri, to points and places outside Missouri. Y Respondent urges a single unit of production and maintenance employees of its Paul Street and Eighth Street plants. The General Counsel urges separate units for each plant. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon observation of witnesses and after careful consideration of the record as a whole, the undersigned makes the following findings of fact , conclusions of law, and recommendations! HISTORY Respondent engages primarily in the manufacture and sale of tarpaulins, tents, canvas bags, and miscellaneous kinds of treated canvas items and for these purposes operates a "main plant" on Paul Street and a "water-proofing and flame proofing" plant on Eighth Street in the City of St. Louis, Missouri. These plants are approximately 2 miles apart and are separated by "the down- town area" of St. Louis. Previous to September 1950 Respondent's employees had not been organized by any union. Awning and Tent Workers and Decorators, Local No. 39, affili- ated with Upholsterers' International Union of North America, A. F. L. (the Union herein), had attempted organization in 1937 and in 1940 but failed to achieve a majority. The Union's policy in organizing is to organize among all eligible employees regardless of separation of plants. In line with this policy, the Union's organizing efforts in 1937 and in 1940 were directed toward organiz- ing a single unit of production and maintenance employees of the Paul Street and Eighth Street plants of Respondent. In September 1950 the Union and United Textile Workers, AFL, acting jointly, endeavored to organize Respondent's production and maintenance employees at the Paul Street and Eighth Street plants into a single unit. On October 19, 1950, United Textile Workers of America, affiliated with the American Federation of Labor, pursuant to Section 9 of the Act, filed a petition for investigation and certification of representatives.` This petition described the unit as "all production and maintenance employees, excluding executives, superintendents, foremen, chemists, assistant chemists, office and clerical Employees" at Respondent's Eighth Street plant. On November 2, 1950, an informal conference concerning Case No. 14-RC-1262 was held in the Fourteenth Regional Office of the National Labor Relations Board. At this meeting Respondent contended that the unit described in the petition was not appropriate and that the appropriate unit was all production and maintenance employees of Respondent (production and maintenance employees at the Paul Street plant and at the Eighth Street plant). In view of the disagreement over the question of the appropriate bargaining unit it was agreed that a formal hear- ing concerning this matter would be held. Such a hearing was scheduled for December 13, 1950. On the latter date the parties appeared for the hearing but before the record was opened, executed an agreement for consent election. By the terms of the agreement for consent election the parties agreed inter alia that the bargaining unit consisted of : All production and maintenance employees of the Company, EXCLUDING executives, superintendents, foremen, chemists, assistant chemists, office and clerical employees, guards, and over-the-road truck drivers.` 8 The findings of fact result from the undersigned's attempt to reconcile the evidence and determine what probably occurred. All evidence on disputed points is not set forth so as not to burden unnecessarily this report. However, all has been considered and where required resolved. In determining credibility the undersigned has considered, inter alia, the demeanor and conduct of witnesses ; their candor or lack thereof ; their apparent fairness, bias, or prejudice; their interest or lack thereof; their ability to know, com- prehend, and understand matters about which they have testified; and whether they have been contradicted or otherwise impeached. 4 14-RC-1262. This unit encompassed employees at Respondent's Eighth Street plant and at its Paul Street plant. H. WENZEL TENT & DUCK COMPANY 221 This agreement also specified that the choices on the ballot "will appear in the wording indicated below and in the order enumerated below, reading from left to right on the ballot" : First Second Third (Tent & Awning Wkrs., Local 39, AFL Neither Textile Wkrs, CIO (United Textile Wkrs., AFL The agreement was executed by Awning and Tent Workers and Decorators, Local No. 39, affiliated with Upholsterers' International Union of North America, A. F. L., and United Textile Workers of America, AFL, jointly as Petitioner, by Textile Workers Union of America, CIO, and by Respondent. On Tuesday, January 9, 1951, an election was conducted among the employees in the unit which the parties had agreed upon. The tally of ballots in the said election indicated that there were approximately 71 eligible voters ; that the 2 jointly acting AFL Unions received 28 votes; that the Textile Workers of America, CIO, received 1 vote, and that 38 votes were cast for "neither." On January 10, 1951, the jointly acting AFL Unions filed the original charges herein ° and filed objections to conduct affecting results of the election. There- after, on August 10, 1951, the Regional Director sustained the objections and set aside the election. On September 20, 1951, the jointly acting AFL Unions, with the approval of the Regional Director, withdrew the petition in Case No. 14-RC-1262. INTERFERENCE, RESTRAINT, AND COERCION George Grivett testified that in October 1950 he attended a meeting held by the United Textile Workers of America and that the next day Leo Schwartz, a supervisor, came to a wrapping table where he (Grivett) was standing with two other employees ° and Approached me, and asked me how my union was coming along. I right away told him "I don't know nothing about it." He says, "Well, I don't care what they do, you know if you get a union in here, that's going to be the end of all your paid vacations and your bonus checks, going to put the truck out of business ; therefore, you'll be out of a job." At the time of this conversation Grivett was the driver of a small pickup truck (the only such driver employed by Respondent) and when not occupied driving the truck performed various odd jobs. Truck driving was not a full-time job. Grivett further testified that as a matter of practice when there were shortages of work Respondent "would manage to find some place where they could put us" but that in the afore-mentioned conversation Schwartz "mentioned that if there would be a shortage of work, why, there would be lay-offs, would get laid off." Schwartz testified he did not recall having a discussion with Grivett at a wrapping table about the time in question in which the Union was discussed, that he did not "recall ever asking Grivett whether or not or `How is your Union coming along,"' that he did not tell Grivett that "if they got a Union in there it would mean the end of the paid holidays, vacations and other benefits," and that he did not tell Grivett "if the Union got in there, that would mean lay-offs of employees in the event of shortage of work." • An amended charge was filed September 18, 1951 , by Awning & Tent Workers and Decorators, Local No. 39, affiliated with Upholsterers' International Union of North America, A. F. L., and on October 24, 1951 , the complaint herein was issued. * These two employees did not testify herein. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of observations of witnesses and analysis of the entire record herein the undersigned credits Grivett's testimony concerning this conversation and finds that Schwartz interrogated Grivett concerning union activities and threatened reprisals because of such activities. Grivett testified that about a week after the afore-mentioned conversation he was called into the office of William Wenzel , secretary-treasurer and sales manager ( a supervisor ), and interrogated concerning an accident involving the pickup truck and that at this time Bill Wenzel Asked about what this is about the Union wanting to come in. He asked if he or his brothers had done something wrong, or what could be straightened out. We didn't have to feel backward in any way to come to him and explain what went on. He asked me if I had signed a card. At the time I told him I did not. On cross-examination Grivett testified that at the end of the conversation about the accident Bill Wenzel said, "By the way what's this I hear about this union business going on around here ? What do you know about it?" and that he (Grivett) told Bill Wenzel he "didn't know nothing about it." Bill Wenzel testified he and Grivett discussed the accident referred to by Grivett and that during this discussion Grivett stated the only job he had driving a truck was with Respondent, that he (Grivett) had worked for another concern (an electrical concern) but not as a truck driver and in order to get that job he had joined a union and still retained an inactive membership in that union. Wenzel testified he (Wenzel) then said, "There's some union activity going on around here I understand" and Grivett answered : Yes, I heard rumor to that regard too, they have been trying to get a hold of me, but Union or not Union, I'm in and out with the truck all the time, and they haven't gotten hold of me. I understand it is the C. I. O. and I wouldn't have anything to do with them. Wenzel testified "that is as much unionism as was discussed," that he (Wenzel) did not ask whether or not Grivett had signed a card with the Union and did not ask whether or not other employees signed cards with the Union. In appearance and demeanor William Wenzel appeared more forthright and frank than Grivett and his version of this conversation, in the light of the entire record, appears more plausible than that given by Grivett. The under- signed credits William Wenzel's testimony and finds the conversation to have been as related by him and outlined above. As noted elsewhere herein, a hearing in Case No. 14-RC-1262 was scheduled for Wednesday, December 13, 1950, but was never held because the parties on that date, and before the opening of the hearing, executed an agreement for consent election. Grivett, on behalf of the Union, attended the meeting at which the agreement was executed. When he reported to Respondent's place of business that day, during the "noon hour," he told Leo Schwartz, his foreman, that he "had been up to the Labor Relations Board." According to Grivett, Schwartz "immediately jumped up and said that I [Grivett] knew all about this meeting head of time, that I should have phoned him ahead of time and let him know I was coming up here [the N. L. R. B. office] and I did not notify anyone that I was coming up here at the time." a Grivett had not given advance notice to Respondent that he would be late or absent that day although he knew on December 12 that he was to attend the meeting the next day and though it 8 Schwartz did not testify concerning this conversation H. WENZEL TENT & DUCK COMPANY 223 was customary for employees to give such notice when they anticipated being late or absent. On Friday, December 15, 1950, Grivett was transferred from the Paul Street to the Eighth Street plant. Concerning this transfer Grivett testified : I came in off the truck that afternoon and he [Schwartz] said, "Well, I suppose you are going down to take your parcels down to the post office." I looked at my watch. "I generally do at this time." He said, "Well, tonight is the last time that you'll be doing that." He said, you start up with the water-proof plant. We are not going to run the truck any more. You are going to the water-proof plant starting Monday." I said right away, "I think I got an idea what that is all about." I know Fred Wenzel had seem ( sic) me up at the Relations Board. "I got an idea that is what it is all about." "Well," he said, "we kind of think you are the leader of the bunch here." I said "I guess if the Union doesn't get in, I suppose I will be fired. He shrinked (sic) his shoulders and walked away. Grivett testified further that he was told by Schwartz the reason he was being transferred was "they were short of help up there [Eighth Street] and I was the extra employee there at the time, and I had to go up there." Grivett testified that when he was transferred to the Eighth Street plant the job he had been doing at the Paul Street plant was discontinued, that at the Eighth Street plant he (Grivett) painted "handles for water bags, handles and slides," that he remained on this job "until the first walk-out [hereinafter dis- cussed] which was in January," and that he has not returned to Respondent's employ since that time. Schwartz testified Grivett was transferred : Because there was a man shortage, we were short up there at the water proofing department plant, Eighth Street Plant, and we were running out of unpainted handles in our water proofing department in the water bag department. We needed someone, so I sent him up there. Schwartz also testified that he told Grivett the transfer was temporary and when the "slides are painted and we can keep running again, you'll be back again." Schwartz testified he selected Grivett because he was "My odd-man"-didn't have a regular job and was supposed to do anything that came up-and to have sent someone else would have meant taking them off of a special job- a regular full-time job. Grivett was the only employee working at "odd jobs." Schwartz testified he told Grivett that he (Schwartz) "wanted him to go and paint slides so we can keep our water-bag department going" and denied that he had any "discussion with Grivett to the effect that the reason for his transfer grew out of his activity with the Union." Schwartz did not "recall anything like" Grivett saying "that he guessed he knew why he was being transferred, because he was the leader of the union movement," and did not "remember anything like" Grivett suggesting "that he might be fired if the Union was not successful in getting in there." Schwartz denied that he ever told Grivett "that he would be fired if the Union either did or didn't get in there." Schwartz further testified that at the time he sent Grivett to the Eighth Street plant he did not have "any knowledge at all that Grivett was even interested in the Union." The complaint does not allege that this transfer violated Section 8 (a) (3) of the Act and counsel for the General Counsel stated, at the hearing, he was "not asking for reinstatement, back pay, as far as Grivett is concerned." The complaint does allege that Respondent violated Section 8 (a) (1) of the Act 224 DECISIONS OF NATIONAL LABOR RELATIONS DOM'D by informing "one employee that he was being given more difilcnlt ww k iirvance Respondent believed he was the leader of the Union" and preaunw1i y iibe c"I- dence concerning this transfer was offered in support of this alleg:.li,pit. Upon the basis of observation of witnesses and careful consideration of the record as a whole, the undersigned credits the testimony of Schwartz concern- ing Grivett's transfer and finds, although the matter is not free from doubt, that Grivett was not transferred because it was "believed he was the leader of the Union." Lewis Scott testified that about a week before Thanksgiving 1950 William Kelley, supervisor of the Eighth Street plant, "called me off to one side away from everybody else" and said : He had heard rumors about the Union going around, and so forth. He wanted to bring out a few of their points about what the Company could do for us, and so forth, what they had done, and if-he led off to the union again, what the union could mess up for us if we joined the Union. He asked me had I signed a card, which I told him I did. Scott testified further that Kelley : Asked about the other guys if they had signed it. I told him I did not know whether they had or not, which at the time I didn't know." William Grant testified that "right before the election" ° Kelley came to his (Grant's) workbench and "asked me if I knew how many fellows in the plant had signed a card [a union membership card]." I told him "I never did." Jimmy Lassiter testified that about a week before Thanksgiving 1950 Kelley sent for him and interrogated him as to his membership in the Union, the number of men who had signed a union card, and as to who was the instigator of the union movement. Lassiter testified that during this conversation Kelley told him "Wenzel didn't want a union, and if we did have a Union, why Wenzel would treat us all right." Joseph E. Roberson testified that "around Thanksgiving" 1950 Kelley sent for him and asked him whether he had "signed a union card" and if he "knew anyone that had signed it." Kelley testified that in October or November 1950 the men under his super- vision, contrary to past practice, had Joe Roberson intercede for them with respect to complaints, that because of this "abnormal procedure" he talked to each employee individually and Asked them if-first, if they were conscious that there was a difference in the way complaints were being handled, and secondly, why Joe Roberson suddenly should be coming to me where they had before. Concerning the conversation with Lewis Scott, Kelley testified "the conversa- tion went something like this" : "Al [Scott] you have always felt free to come to me before, and you have on many different occasions, to complain about something the Company did or did not do." As a matter of policy I always try to justify the Com- pany's stand insofar as I was able, and if there was apparently a misunder- standing or something that somebody had done, I would like to receify (sic) it. "However, recently, you have seen fit to have Mr. Roberson intermediate for you. Is there any reason for it?" f # t i i • • 6 As noted elsewhere herein, an election was conducted on January 9, 1951. It appears from the entire record that Grant was mistaken as to the time of this conversation. H. WENZEL TENT & DUCK COMPANY 225 According to the best of my memory, Mr. Scott made no formal statement to me as to why he had adopted this policy. i t M i • t • Al, to the best of my knowledge, replied that he did not realize that he was behaving any differently than he had on previous occasions. Q. Did you pursue that inquiry with him further? A. I did not. Q. Did you ask him whether or not he had signed a card with the Union? A. No, I did not. Q. Did you ask him whether he knew whether or not other employees there had signed cards with the Union? A. I did not. Kelley testified Scott complained to him (Kelley) "on many occasions" and that the last complaint before the above-mentioned conversation occurred "to the best of my recollection a month or two months before." Kelley did not recall what that complaint was about but thought it had to do with a transfer of Scott from one job to another. Kelley could "not recall" how many times Joe Roberson came to him (Kelley) on Scott's behalf and could "not recall" any complaint or subject matter that Roberson complained about on Scott's behalf. Kelley testified he talked to Grant "on the subject of Change of Procedure" and: Our conversation was, as I remember the conversation with Bill Grant, it was short and sweet. Bill Grant and I, since I demoted him, spoke almost always on-kept our conversations to the subject of business, and on this particular case, he stated that he did not, or words to this effect, that he had not had a complaint to make and had not had Joe intercede for him. Later in his testimony, Kelley testified he did not recall the details of the con- versation with Grant or what Grant said at the time. Kelley denied asking Grant "whether or not he knew how many employees there at Eighth Street had signed Union cards" and denied asking Grant whether or not he (Grant) had signed such a card. Concerning the conversation with Lassiter, Kelley testified : Q. What was said? A. Jimmy Lassiter had had a definite complaint to make, as I recall, and had gone through Joe Roberson in order to get an answer. Q. What was that about? A. It had to do with medical assistance, I believe, in connection with an injury on the job, or something of that sort, and so I took the occasion to explain to Jimmy fully the benefits the Company had, if he hadn't recalled them on the day that I hired him, when we usually outline such benefits. Q. Did you, during that conversation, ask him whether or not he had signed a union card? A. I did not. Q. Did you ask him whether he knew who else or if anybody else had signed union cards? A. No, I did not. Q. Did you at any other time ask him whether he had signed a Union card? A. I did not. He volunteered the information, however. Q. How and when? A. My recollection was during that conversation. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Tell me what was said. A. In a general discussion of the Company benefits, Jim mentioned that in his previous job they had medical benefits and that I don't recall whether he said the union had brought them there, or that the union had been re- sponsible for having these medical benefits made a part of the previous company policy, or whether he merely suggested that he was a member of the union and they had this and that benefit. At that time I said something to the effect, "You did not volunteer the information at the time you joined our company." That was the end of it. Concerning the conversation with Roberson, Kelley testified : I asked Joe for his version of this change of procedure and his reply was something to the effect that the boys are upset over Union organization and that they had merely asked him to be their spokesman, since he was a lead man and had some authority. Q. Did you ask him to what extent the employees had signed Union cards? A. I did not. Q. Did you ask whether or not he had signed a union card? A. I did not. Q. Did you on any other occasion ask Roberson whether or not he had signed a Union card? A. I did not. An examination of Kelley's entire testimony reveals that it contains qualities which ordinarily would cause a trier of the fact to pause before accepting such testimony. Thus it is general, vague (especially as to when the "Change of Procedure" was inaugurated), confusing, and lacking as to particularities con- cerning dates and circumstances (particularly with reference to the number, nature, and details of complaints handled by Roberson on behalf of other em- ployees ). In addition, Kelley as a witness did not appear to display complete candor. On the basis of observations of witnesses and analysis of the entire record herein, the undersigned credits the testimony of Scott, Grant, Lassiter, and Roberson, set forth above, concerning interrogation of them by Kelley, and finds that Kelley interrogated employees concerning their union interest and affiliation and concerning their knowledge of the union interest and activities of other employees. Wage Increases On or about December 1, 1950, Respondent granted to its employees a "blanket Company-wide wage increase." This wage increase was announced by a letter reading as follows : Wage Increase-to all Employees We are pleased to announce a general wage increase effective December 1, 1950. All hourly rates have been raised 10¢ per hour. Piece work rates 10%. This applies to all employees, factory and office alike. In the past we have promised to increase your wages when economical conditions warranted such changes. We feel that such conditions are at hand and we are happy to fulfill our pledge. Furthermore we have reason to believe that a National "price- wage freeze" will go into effect shortly-perhaps within the week. Therefore we think it necessary to act now to protect your earning for the future. H. WENzEL TENT & DucK Co. H. WENZEL TENT & DUCK COMPANY 227 Fred W. Wenzel, vice president in charge of production and purchases, testified this wage increase was given because of the reasons stated in the letter and: My recollection is that week the general press releases, the newspapers were carrying stories about the steel settlement and the general feeling was that once a pattern was set for the steel people and their kindred lines to more or less get in or adjust to the current price, that wages would be frozen as of that time, Actually it happened some 30 days later, but the feeling was running pretty high generally among all the papers that I had read as well as various services and newsletters carrying the same story. That's what prompted us to act on that date in order to protect the position with our employees in respect to general economic conditions. The record reflects that in previous years, and when union activities were not prevalent, Respondent granted similar economic advantages to its employees and handled the annoucements thereof in a similar manner. Since wage increases in 1950 were granted at a time when union organizational activities among Respondent's employees were at their peak and in view of Respondent's infringement upon the rights of its employees, as noted above, suspicion is cast upon Respondent's motive in granting these wage increases. Nevertheless, in the light of the entire record, including especially Respondent's past practices and Fred W. Wenzel's explanation of the reasons for these in- creases (which were not contradicted), the undersigned is not persuaded that Respondent, in making these increases, was motivated by a desire or intent to induce its employees to refrain from joining or remaining members of the Union, or by a desire or intent to frustrate collective bargaining. Accordingly, the undersigned finds that by this conduct Respondent did not violate the Act. Christmas Bonus It has been the policy of Respondent for a number of years (10 or more) to announce, during November," an employees' bonus which, usually, is paid to the employees at an annual Christmas party .u Such procedure was followed in 1950. The announcement was made by a letter dated November 3, 1950, which stated : REFERENCE : CHRISTMAS BONUS To all employees of H. Wenzel Tent 4 Duck Company: As you know the company's working year or fiscal year runs from October 1 to September 30. On each September 30th we close our books and start a new year. Our auditors and accountants have just finished preparing for us a statement of the 1950 year's results. In spite of the fact that we had a great deal of difficulty all through the winter and spring getting enough orders to keep the factory completely busy, and while the company lost a great deal of money in those slow months, this loss was made up during the summer , and at the year's end the company did make some profit for the year as a whole. You also know of our misfortune in being forced out of our waterproofing plant on 8th Street because the city condemned our building for a housing m Respondent's fiscal year runs from October 1 to September 30 and the announcement is made after the auditors and accountants analyze Respondent 's books. n Fred Wenzel testified that "to get the utmost out of a bonus" Respondent generally announced the bonus by letter and then distributed the checks on a later date at the Christmas party. The record corroborates this testimony. 242305-53-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD project. The expense of putting u•i a n ^w building to take its place, plus later expenses of moving and ru(•nuver,iua, is terrific. It has been the policy of d iv 11. Wenzel Tent & Duck Company for the past ten years to announce an employee's bonus during November just as soon as the auditors determined if a profit had been made for the year just ended. It has always been the practice of the company to share with every one in years when profits are made in order to show appreciation for good work, loyalty and cooperation. Last year you received a bonus amounting to 5% of your total earned wages during our fiscal year. This year you will receive a bonus of 7% of your total wages earned between October 1, 1949 and September 30, 1950. This bonus will be paid at Christmas as usual to all people remaining in the company's employ until December 31, 1950. It has been decided that while the profits made this year are badly needed to cover the great expenses of the new waterproofing plant and moving, the misfortune of being forced out of the 8th Street plant was no fault of yours; consequently the company is happy to give you the bonus "as usual" in spite of our difficulty. Therefore you may expect your check at the Annual Christmas Party, at which time we will confirm the continuance of the "Vacation with Pay" Program which was announced at last year's party and which has worked out so well for both employees and the company. For 63 years we have been successful in working together, and the company has provided a good living and steady employment for all of us for this long period of time, principally because of a mutual feeling of understanding and ability of all to get along with the other fellow. Truly a personal feeling of fellow- ship and welfare with complete understanding has always existed. As you well know no personal problem of yours has ever been so small that you haven't always felt free to discuss it with your superintendents or even the officers of the company at any time. Again we wish to say we are glad that this bonus is possible and we are happy to give it to our loyal and faithful employees who have shared with us in prosperity and have stuck with us in times of difficulty. H. WENZEL TENT & DUCK COMPANY. Respondent's annual Christmas party in 1950 was held on or about December 22, at which time Fred W. Wenzel made a speech. The speech was made from a previously prepared written statement . The evidence is conflicting as to whether Wenzel, at the party, varied from the written text of the speech. Jimmy Lassiter and Joseph Roberson testified he varied therefrom and indicated to the assembled employees that if the Union was successful in organizing the employees the policy of granting Christmas bonuses would be discontinued. Wenzel denied making such a statement and testified he "did not depart one iota from the words [written text] on this talk." He also testified that before delivering the speech he (Wenzel) wrote it out in longhand, and had it approved by his brothers ( who are associated with him in running Respondent 's business) and by Respondent's labor relations counsel ( Charles H. Spoehrer ) and that he read the text thereof "some thirty, forty or fifty times aloud" so as to be as well prepared as he knew how . In the light of the entire record the undersigned is not convinced that Fred W. Wenzel varied from the written text in making the speech on or about December 22, 1950, and finds that the speech made was as follows : At our annual Christmas Party, for the past 12 years, it has been my privi- lege to speak to you. On these occasions my talks have been informal, H. WENZEL TENT & DUCK COMPANY 229 usually about the economic conditions of the day and the operations and future of our business. Never before has it been necessary for me to read from a prepared paper. I read from these pages not because I am unprepared or because I am unacquainted with my subject but for the sole purpose of clarity and that I may not be misunderstood or misquoted. No doubt all of you have been subjected to the campaign and pressure of the current attempt of two labor organizations who hope to gain your support. Word has drifted back to us of their tactics . . . Big Talk . . . Big Promises. We have even heard of some threats. We believe the time has come for your company to clear up its position and explain your rights and your obligations. Those of you who have been employed here for many years realize that the policy of this company has been one of understanding and fairness to all workers. We recognize you as an individual. We demand that your foreman and supervisors treat you with the same consideration. We do not believe it necessary to crack the whip to get your cooperation and your best efforts. Perhaps we are old-fashioned in our policy. If it is old- fashioned to have the respect and loyalty of most of our employees .. . if it is old-fashioned to have 36 persons employed for more than 10 years . . . if it is old-fashioned to have mothers bring their sons and daughters to work here and many bring their friends and relatives because they know this is a good place to work . . . then I hope this old-fashioned policy will always be the number one consideration of this company for evermore. (Maybe some people would consider having this Christmas Party and even a Christmas Tree old-fashioned . . . but by golly this is just an- other one of our old-fashioned ideas that none of us want to give up-do we?) We have never been ashamed of the wages we pay. There is no need to be ! Today as well as in the past they have been above average for similar work. The quotation, "Man does not live by bread alone" and the saying, "Money isn't everything" is very true and things we often forget. What is it worth to you to know your company keeps it factory running and you employed long after they are out of orders to ship? Do you realize that the water bags you are making now are still in stock and are not needed now, and will not be shipped until early Summer? If we had not made these water bags we would have laid off at least 10 people, and they would have been the newer em- ployees and least experienced. Think back-do your friends and acquaintances working at similar jobs enjoy this same privilege? You know of many companies that lay off their people the minute business slows up. You know of many companies that won't keep their people after they get a little old. How many companies find lighter jobs for their older people? Look around! We have quite a number of older people ! Maybe this is another one of our old-fashioned ideas but we feel that our older employees still do a very good day's work and we want them on the job-don't we ! Then there are many little things that we have been doing so many years that you and I now accept as part of our every-day life. Did you enjoy your coffee yesterday-the rest period that went with it? Have you used the company loan fund this year? I hope it hasn't been necessary but when it is, it's there for your help and convenience. How was your vacation last year? All of these "extras" have been arranged and freely given by your company . . . no union demand or bargaining for them ! We want 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfied employees and are willing to try in many ways to continue giving, you these extras. Last week I heard that one of the unions had promised 7 holidays with, pay if you signed their ticket. Now let's get one thing straight about cam- paign promises. This may be your first contact with any union organiza- tion. Remember, promises are cheap . . . just like big talk ! You're not one bit better off with one-hundred promises ! Reminds me of some of the so-called guarantees and promises made on the radio. There are several patent medicines claiming if you take their stuff you'll never have a cold, backache or pains in your stomach. If this were so, no one would ever be sick ! They will promise everything and anything. At least 10 beer compan- ies promise that their beer is the best in the world. Certainly at least 9 are wrong ! Then there's the old stand-by . . . they promise their soap will do everything for your dishes except carry them off the table-and so it goes with promises. Whether you're a Democrat or a Republican you can dig up dozens of election promises that have never been fulfilled-probably never meant to be fulfilled-just plain vote-getters. Bear in mind that simply joining a union does not automatically pro- duce or guarantee wage changes or other benefits. They must depend upon, the economic factors involved and not upon union membership. Let's go back to these 7 paid holidays. Sounds like a great idea. But of course I'm not permitted to promise you a thing now, and I'm sure you know why. Let's look deeper into these paid holidays and see how they' compare with your bonus check. We have always paid for Christmas Day and we'll do so again this year. So it's really only 6 paid holidays we're talk- ing about. Here's a bonus check that belongs to one of you people sitting over there- I won't mention your name. You made 75¢ per hour this year. Now if you were paid for these 6 holidays we are talking about you would have received $36 more pay. Now let's look at your bonus check. Let's see-it's for $110. Let's just tear this check about here and compare these paid holidays with your bonus. This little part would be your $36 for paid holidays which the union promises. You're getting that anyway ! This big part (the rest of the $110) the company is giving you extra-voluntarily without pressure from anyone! Let's look at it this way-a 7% bonus (which you all receive this year) is equal to 18 days pay, or holidays, call them what you like. I know what you're ,thinking . . . and it's true. The bonus isn't guaranteed. How- ever, let's go back to the record-not promises. This company has paid a total of $62,000 in cash bonuses to factory employees alone (this does not in- clude office people) during the past 10 years and hasn't missed a single year! No guarantee-no contract-but it looks like a sure thing-and remember it didn't cost you one penny in dues ! If you have been here 5 years you had a 2 week vacation with pay. Add this to your bonus, which you remember is worth 18 days pay, and you ac- tually received pay for 28 days for which you did not have to work-or call them 28 PAID HOLIDAYS IF YOU LIKE. Now most of you people know these things, don't you? And I'm sure you're not influenced by just talk. I can understand that a few people could be confused ; after all I guess the grass always looks greener on the other side of the fence-at least until we get over there. Perhaps some of the younger members of our company-family have not been with us long enough as yet to become acquainted with all the conditions here and to H. WENZEL TENT & DUCK COMPANY 231 come to realize that this is really a very satisfactory place to work, as most of our older members have found. Perhaps some discussion about this among you may be mutually desirable. Now a word about wages-first let's see what some of our competitors in the canvas manufacturing business are paying. These figures were com- piled for the Department of Labor in July of this year. These companies are in Missouri, Illinois, Texas, Ohio, Virginia and Pennsylvania. Most of their minimums started at 750 per hour and ranged around 80 to 85 cents for their experienced help. These are factories just like ours, make these same items and competing for the same customers. And about half of these companies have unions. Think this over ! Now you know that in order to stay in business your company must keep its prices in line with others in the wholesale manufacturing business. If we don't, we wouldn't have enough orders to keep you employed 12 months of the year. We are not a shop making fancy awnings or made-to-measure truck covers. It's a whole lot like buying a pair of work pants or a house dress. You wouldn't go to a tailor or a dressmaker for these things. One of the unions working for recognition at this time is the awning workers. No doubt you have been told about their rate of pay. Were you also told haw many days they are able to work per year? Awning shops are very seasonal, and most of their people work only between March and August. Regardless of any rate of pay, when it's only for a part of a year it doesn't add up to much. It wouldn't be hard to figure that you probably make 40% to 50'30 more than most awning workers on a whole year's basis. What do you think would happen if you and the awning people all be- longed to the same union at the same rate of pay? Don't you think the awning people would want your jobs here where they can work all year long instead of only a few months? There will be an election on January 9th when you will be asked whether you want a union or whether you want to continue as you are, without a union but with the freedom both you and your company now enjoy. So in the next few weeks we want you to think. When you think of your job now, it looks pretty good. Talk this over with your family and friends. Ask about conditions in other factories. Remember that each person has his own vote. This vote is a duty. You are an important part of your company and your vote is as important as any one's. It doesn't matter one bit what you have already signed or what you have already promised. When you vote, the choice will be all yours. No one but you will ever know how you voted-the election will be absolutely secret. When all is said and done, this election really gets down to one choice and one issue. Who will you select as your leader for the future? We are proud of our company and proud to be your leader. This leadership we hold as a serious duty. You don't want it in the hands of some outsider, do you? Will you risk a leader who you have known but a short time? Will you risk your future in "promise"? Keep the leadership as it is today .. . one that has your proven interest, proven fairness and proven results for the past 63 years. There remains for consideration the question of whether the speech was merely persuasive argument, now expressly sanctioned by Section 8 (c) of the Act, or whether, in violation of Section 8 (a) (1) of the Act it amounted to interference, restraint, or coercion of employees in the exercise of their right of self-organi- zation, secured to them by Section 7 of the Act. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is noted that the speech does not contain any statements per se violative of the Act. However, the absence of such expressions is not enough and the speech and its overtones must be evaluated in the circumstances then prevailing. Viewed in this right there may be some doubt as to whether the speech went beyond the bounds of persuasive argument. Fully cognizant that the statements in the speech were made by Respondent's vice president in charge of production, and were made at a critical time (when the employees were preparing for an election), and that Respondent, during the union organizational activities which led to the election then contemplated, had infringed upon the rights guaranteed its employees (noted above), the un- dersigned, nevertheless, believes and finds that the statements made were "per- suasive" (not coercive or intimidating) and were not violative of the Act. Preelection Speech As noted elsewhere herein, on January 9, 1951, a consent election was conducted among Respondent's employees. On January 8, 1951, Fred W. Wenzel held two meetings with Respondent's employees (one at the Paul Street plant and one at the Eighth Street plant). At each meeting Wenzel read a document concerning the election." Wenzel stated : This is not a pep talk or a rally. We have called you together to give you some information and facts about the election. The last time we all got together was for the Christmas Party ; for fun, for singing and dancing and eating turkey. Now we are faced with more serious business. Tomorrow we all have a big decision to make, one which may affect our homes, our happiness and our entire future. We must think clearly, we must act wisely-we must not do anything foolish that we may regret later. We must decide if we want a union or not ! I know you have all been thinking of this serious problem for the past several weeks. Most of you know what is best and have made up your minds. For those who are in doubt I want to clear up a few points. The law gives me this right to express my views and I am going to tell you straight-forward just how I feel about some of these things and what your rights are in spite of what anybody says : First: This election will be absolutely fair and it will be absolutely secret. No one will ever know how you voted. Your name will not be on your ballot. The votes will be counted by the United States Government Labor Board. Second: It is your duty to vote ! You should not be neutral. If you do not vote, the side you want to win will lose a vote. It is your duty to your- self, your family and your future. Third: Do not be misled. Anything you have signed-anything you have promised-does not count. Tomorrow you can vote the way you honestly think and no one will ever know how you voted. Even if you have already signed a union card you have every right to change your mind. You are not obligated to anyone. Fourth: You are a free American-you do what you want. No one can make you do anything. You have your own individual right. Now I hope you are all clear on this point; it's your duty to vote. You be the judge and vote the way your conscience tells you. Don't let someone " George Grivett testified that he didn't think that Wenzel "read from some paper." Wenzel testified he read the document "word for word." It is apparent from an examination of Grivett's testimony that he had a poor recollection concerning this matter and his testimony with respect thereto is not credited by the undersigned. H. WENZEL TENT & DUCK COMPANY 233 else dictate to you. You have your freedom-you have your rights! Your company will not discriminate against or prejudice any employee regardless of how the election comes out! At the Christmas Party I told you how the company felt and I asked you if you wanted outsiders who you knew only a few weeks to run your affairs or if you felt we were able to take care of ourselves under the leadership we knew and had experience with for 63 years. I asked you if you wanted to become a part of a mass organization or preserve your rights as individuals. I reminded you of all the advantages and benefits you are getting now from a leadership that is working with you and for you, without force, without contracts, without dues, as compared with unfamiliar outside leadership that knows nothing of your personal problems and who make their living not out of selling canvas, or cutting canvas, or sewing canvas, or water- proofing canvas, but who earn their pay by organizing unions and collecting dues. Let me remind you again that simply joining a union does not necessarily mean that there will be any changes made for better or for worse. You have no guarantee ! As I said at the Christmas Party this whole election boils down to one thing. Who do you want for your leader. Think once more of your good wages, your paid vacations, your Christmas Party and your fat bonus check, all of which have come from your present leadership without union assist- ance or interference. If you want to vote for union outsiders to be your leader mark an X in either outside box on the ballot. But if you want neither union then put your X in the square in the center marked "neither." The company does not tell you how you must vote, but remember YOU HAVE THE FREEDOM NOT TO JOIN A UNION. Tomorrow morning at eleven o'clock a man from the Government Labor Board will be here to run the election, along with a union rep. and some one from your company to see that the election is secret and fair. A table and booth will be set up near the time clock. You will be called, along with other people in your department, as a group. The voting is simple; when you approach the voting table you will be asked your name and it will be checked from a list. You then will receive a ballot without your name, which you do not sign. If you want to continue under the company's 63 years of proven leader- ship WITHOUT A UNION here is how you vote. Put an X in the center box of the ballot. This means you don't want either union. You fold your ballot and put it in the ballot box without signing. No one sees your vote. It's as easy as that. Thank you and good luck. Wenzel testified that as he read the above-quoted document : I had a card or paper in which there were three blocks, A. F. L., C. I. 0., and neither. I don't recall whether all the little words representing the Union as to the local, and so forth, were in there or not, but three blocks, and saying, at least in part, C. I. 0., neither, and A. F. L. and I pointed to the blocks, as I read from this direction. The direction referred to was the sentence in the document reading: If you want to vote for Union outsiders to be your leader mark an X in either outside box on the ballot. But if you want neither union then put your X in the square in the center marked "neither." 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wenzel's conduct with respect to this election may not have been in conformity with the customary procedures and policies of the National Labor Relations Board concerning elections conducted by it, but such conduct does not appear to be, and the undersigned finds that it was not, violative of Section 8 of the Act. Refusal to Bargain During 1950 construction of a building adjacent to the Paul Street plant was begun. It was anticipated that upon completion of this building the operations then being performed in the Eighth Street plant would be moved into this new building. In January 1951 this building was still under construction and it has not since been completed. Immediately following the election held on January 9, 1951, the United Textile Workers of America, AFL, indicated to the Union involved herein that it was no longer interested in pursuing organizational activities among Respondent's em- ployees. The Union involved herein did, however, continue its organizational activities and on or about January 15, 1951, established picket lines at Respond- ent's plants and at the construction site. Respondent's employees and the con- struction workers refused to cross the picket lines. After about 2 weeks Respondent's employees resumed their work but the picketing has continued and the construction workers have not returned and the construction of the building has not been resumed. For the purpose of determining whether there was any possible way to com- plete the construction interrupted by the picketing, Respondent's attorney (Robert Hensley)" contacted Tony Remshardt (business representative of Awning, Tent and Decorators Local No. 39 and vice president of Upholsterers' International Union) and arranged a luncheon which was held during the latter part of April 1951. At this luncheon Remshardt sought recognition of the Union for the employees at Respondent's Eighth Street plant and sought a con- tract covering said employees. There was some discussion as to whether, in view of past practice and the agreement for consent election wherein a single unit of employees of both plants had been agreed upon, there should now be a separate bargaining unit consisting only of production and maintenance em- ployees of the Eighth Street plant. Remshardt assured Respondent's repre- sentatives (Hensley and Fred W. Wenzel) that the Union represented the employees at the Eighth Street plant, that the United Textile Workers of America, AFL, would not interfere since they had already indicated they were no longer interested in organizing among Respondent's employees, and indicated that "if a deal was made on the Eighth Street employees, that the pickets would be with- drawn" and that the Union would not engage in organizational activities among the employees at the Paul Street plant for a period of 1 year. Respondent sought to have the Union withdraw completely and cease all activities among its em- ployees. The luncheon ended with an agreement that Remshardt would submit to Respondent for study its current contracts covering awning shops. There- after Hensley arranged a meeting for May 10, 1951. On May 10, 1951, Remshardt, Hensley, and Fred W. Wenzel conferred con- tinuously from about 10 a. in. until about 3: 30 p. in. At this meeting the parties discussed the then current situation and explored avenues of possible settlement. The parties again discussed whether the employees at the Eighth Street plant 19 Hensley represented Respondent in a limited capacity in connection with the securing of Government contracts. H. WENZEL TENT & DUCK COMPANY 235 should be treated as a separate bargaining unit" and discussed, in detail, wages and other conditions of employment affecting employees at the Eighth Street plant. Fred W. Wenzel indicated he could not commit Respondent ( either as to unit or concerning substantive terms of any agreement which might be reached) and that he would have to consult with other officials of Respondent before doing so.' At the conclusion of the meeting Remshardt and Fred W. Wenzel had reached an agreement which they thought satisfactory. This agree- ment consisted of a contract covering employees at the Eighth Street plant and an understanding that upon approval thereof (by Respondent and the Union) the pickets would be removed. Fred W. Wenzel indicated he thought they (Remshardt and Fred W. Wenzel) had reached an agreement that he could `'sell" to other officials of Respondent and the meeting ended with an under- standing that he (Wenzel) would consult with such officials and thereafter advise Remshardt concerning Respondent's position. When Fred W. Wenzel conferred with other officials of Respondent it was decided that for Respondent to recognize a unit embodying only the employees at the Eighth Street plant was "inconsistent with everything that we [Respond- ent] had ever done in the Company to date" and that, in view of this and the results of the election, Respondent should not accept the agreement reached by Remshardt and Fred W. Wenzel and should not pursue further discussions with the Union. On Monday, May 14, 1951, Hensley called Remshard and told him, in no un- certain terms, that "the old man [Fred H. Wenzel, father of Fred W. Wenzel] dumped the thing upside down," that the Old man's position was that regardless of what contract they could work out with me [Remshardt], I had but one intention of putting the company out of business, I could agree to any rates regardless if it be the 75 cent mini- mum, that would make no difference, my sole intentions were to shutting the Company up, nothing else. No further meetings have been held. The Union did not contact Respondent again except that approximately 2 weeks before the hearing herein Remshardt suggested to Mr. Ahner (one of Respondent's attorneys) that for the purposes of trying to settle the issues raised by the complaint herein a meeting between him (Remshardt) and Fred H. Wenzel would be appropriate. Ahner answered, "I don't know if it is possible, I never had the privilege of speaking to the old man [Fred H. Wenzel] either." The matter was not pursued further. One of the questions for determination herein is : Assuming, arguendo, that the unit set forth in the complaint is a unit appropriate for the purposes of collective bargaining and assuming that the Union represented a majority of the employees in the said unit," did Respondent by the above-outlined conduct violate Sec- tion 8 (a) (5) of the Act? Respondent maintained throughout the events narrated above that the appropriate unit for the purposes of collective bargain- ing was not the unit set forth in the complaint but consisted of a single unit of production and maintenance employees of both of its plants. There is no evidence that this contention of Respondent was made in bad faith. Respondent never abandoned this contention although it did consider, in view of the then pre- 14 Remshardt's testimony that there was not "any discussion about the unit" other than concerning Bill Grant, in the light of the entire record, is not credited. As Remshardt's testimony to the contrary is contradictory and not consistent with the entire evidence and is not credited. M In view of the findings hereinafter made, the undersigned believes and finds it unneces- sary to pass upon or resolve the issues concerning unit and majority. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vailing situation, the expediency of executing a contract covering a smaller unit. Respondent's conduct, in indicating that it might, and possibly would, accept a contract covering a unit other than the one it deemed appropriate, in bargaining for a contract on this basis and then, within a few days, retracting from this position and indicating it was no longer interested in negotiating for a contract covering a unit other than the one it deemed appropriate, when viewed in the light of the entire record, including the situation prevailing with respect to the building under construction and the results of the consent election, does not appear to have been motivated by a desire or intent to evade its obligations under the Act or to have been performed in bad faith. Accordingly, the under- signed finds that the evidence adduced is not sufficient to sustain the allegations of the complaint to the effect that Respondent violated Section 8 (a) (5) of the Act by refusing to bargain on and after May 10, 1951. The Strike During the evening of Monday, May 14, 1951, Remshardt met with the mem- bers of the Union and reported to them that on May 10, 1951, "an understanding with the Wenzel firm had been reached" but that on May 14, 1951, Hensley had called him and told him (Remshardt) that "the Company had turned down the agreement" and that Respondent was not willing to enter into further negotia- tions. The union membership then decided "that they would work until Wednes- day, that is the end of the pay, and then we would go out" because Respondent "refused to negotiate any more." On Wednesday, May 16, 1951, employees (10) at the Eighth Street plant engaged in a strike. The complaint alleges that this strike was provoked by Respondent's unfair labor practices. As noted above, the strike was called because Respondent "refused to nego- tiate any more." " As previously noted herein, Respondent's refusal "to negotiate 17 The stipulation filed with the undersigned after the close of the hearing (on February 25, 1952 ), states, inter alia: It is further stipulated that Jimmie Lassiter, Joe Roberson and William Grant, all of whom previously testified in the above matter, if recalled by the General Counsel as witnesses would testify in substance, as follows : When we quit at 11: 30 a. m., on May 18, 1951, we were in the locker room changing clothes, and Supervisor Kelley came in. He was pretty mad. Whifel- meyer was with him. Whiffelmeyer said, "What do you think you guys are pulling here?" Kelley said, "I don't know if you fellows know the law on this or not, ,but I know exactly. I guess you fellows know what'll happen to you if you go out, I'll replace every man in here anytime I want to. Don't think for a minute we aren't going to run the plant." Then Kelley talked to the three new men, McDonald, Brewer, and Saunders. He said, "If you men go out of here with these guys, and don't stick in here, you're automatically fired, and you'll never work for Wenzel again, I'll see to that." He then talked to Peters ; he said, "Walter, you're just walking on your toes around here." Then he talked to us all and said, "And don't think all you fellows can't be fired, that's a right we have." I (Lassiter) said, "Kelley, these three boys (Brewer, McDonald, and Saunders) have union cards." Kelley said, "I don't care if they've got pockets full of cards, if they go out of here they're fired." In spite of what Kelley said, everybody went on out of the building. It is further stipulated that William Grant, in addition to the foregoing, would further testify that after the statement by Supervisor Kelley, above related, that as he (Grant) was leaving the premises Supervisor Kelley said to him, "If you go out on strike you will be fired." ,It is further stipulated that Supervisor William Kelley, if recalled as a witness by Respondent, would testify in substance that between the dates May 18, 1951, and May H. WENZEL TENT & DUCK COMPANY 237 any more" amounted to a refusal to meet and confer further with the Union with respect to any unit other than a single unit of production and maintenance employees of the Paul Street and Eighth Street plants. In view of the efforts to organize on this basis (on the basis of a single unit of employees of both plants), the agreement for consent election wherein the parties agreed that such a unit was appropriate, the evidence in the record (but not detailed herein), tending to establish that such a unit is a unit appropriate for collective bargain- ing purposes, the results of the consent election, and in view of Respondent's con- tinuous assertion (not in bad faith) that the only appropriate unit is a single unit of employees of both plants, the undersigned is not convinced that Respon- dent's refusal to negotiate any more" was a rejection of the collective bargain- ing principle or an attempt to gain time in which to undermine the Union. Ac- cordingly, the undersigned finds that the strike was not caused by a refusal to bargain within the meaning of the Act. Since the record reveals that the strike was not called for any reason other than the refusal "to negotiate any more" (refusal to meet and confer with respect to any unit other than a single unit of employees of both plants) and since this has been found insufficient to support a finding that the strike was an unfair labor practice strike, the undersigned further finds that the strikers are not striking employees whose idleness is traceable to Respondent's unfair labor practices. 25, 1951 , he wrote the following report concerning the conversation with the employees on May 16, 1951: Kelley had spent the morning at the Paul Street Plant and, upon hearing the rumor that the men might walk out, he immediately went to the 8th Street Plant where he met some of the men who were ready to go out for lunch . He noticed that several of them were changing to Street clothes, which is not the usual practice for going to lunch. Kelley : "Is this rumor that I hear true I" Jim Lassiter : "Yes, that's right. We're walking out." Kelley : "What is the reason 1" Wm. Grant : "Because the company won't give us a union contract." Kelley : "Well ,pow, wait a minute. You can 't just decide to walk out and be pro- tected because the company won't give you a union contract ." Jim Lassiter : "Well, Tony has just called us out." Kelley : "Now you new men ought to think this over . In my opinion, you would not be protected on your job if you walk out now. I'd think about this before I walked out." No comment from the men. It is further stipulated that Supervisor Kelley would also testify that the foregoing report is a true and accurate account of what was said by him and the employees on May 16, 1951. Since the complaint, as amended, does not contain allegations that the employees were dis- criminatorily discharged on or about May 16, 1951, it is presumed that this portion of the stipulation is offered in connection with the allegations of the complaint that the Respondent threatened employees with discharge if they engaged in concerted activities and that the strike was caused by unfair labor practices. No explanation appears as to why such evi- dence was not offered during the hearing held in December 1951. Assuming, without decid- ing, that Kelley made the statements attributed to him in the stipulation, there is no evidence that such statements caused the strike. Taken in the setting in which they appear In the stipulation it appears that the strike occurred despite the statements and not because of them. Furthermore, Grant and Lassiter testified, during the hearing herein, that the -employees decided on May 14, 1951 (before the alleged statements by Kelley), to strike because Respondent "refused to negotiate any more" and that the strike was not called for any additional reason. Although the undersigned has found that Respondent violated the Act in October 1950 and in November 1950, the undersigned believes and finds, in the light of the entire record herein, that these unfair labor practices were remote from the beginning of, and unrelated to, the strike which occurred on May 16, 1951. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reinstatement On December 6. 1951, Remshardt (business representative of the Awning, Tent and Decorators Local No. 39 and vice president of Upholsterers' Interna- tional Union), unconditionally requested reinstatement for "all men who went on strike May 16 , 1951." The stipulation filed with the undersigned after the close of the hearing (on February 25, 1952), states, inter altia: It is further stipulated that Respondent, since December 15, 1951, has not offered reinstatement to any of the employees who went out on strike on May 16, 1951. Fred W. Wenzel testified, without contradiction, that the strikers were re- placed "as rapidly as outside help [new employees] could be obtained," that within 30 days after the strike, Respondent was operating "back to our capacity" with "all new people," and that at the time of the hearing herein (on December 5, 1951 ), Respondent had "a complete crew." Any contention that the strike was an unfair labor practice strike and that therefore the strikers are entitled to reinstatement upon application, displacing if necessary persons taking the jobs of the strikers, must be and hereby is re- jected by the undersigned in view of the finding above that the strike was not an unfair labor practice strike. Assuming the strike to have been an economic one, the record reveals that after the beginning of the strike Respondent filled the jobs of the strikers on a permanent basis, and that prior to the request for reinstatement Respondent was operating with a normal complement of employees and there is no evidence- that reinstatement was denied because of Respondent's opposition to union mem- bership or activities. In view of the foregoing, the undersigned concludes that Respondent's fail- ure to reinstate the strikers upon application was not violative of the Act. .ULTIMATE FINDINGS AND CONCLUSIONS In the light of the foregoing considerations and upon the entire record in these matters , the undersigned finds and concludes : 1. By interrogating employees concerning union activities and threatening re- prisals because of such activities , Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) and Section 2 (6) and ( 7) of the Act. 2. The preponderance of the evidence adduced does not support the allegations of the complaint , as amended , to the effect that Respondent otherwise violated Section 8 (a) (1) of the Act; that Respondent unlawfully refused to bargain; that the strike which occurred on May 16, 1951 , was an unfair labor practice strike and that Respondent unlawfully failed and refused to reinstate the strikers. THE REMEDY Having found that Respondent has engaged in unfair labor practices in vio- lation of Section 8 (a) (1) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. Since it has been found that the evidence is not sufficient to sustain certain allegations of the complaint, as amended, it will be recommended that these al- legations be dismissed. [Recommendations omitted from publication in this volume.] GLEN RAVEN SILK MILLS, INC. Appendix A NOTICE To ALL EMPLOYEES 239 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees regarding their union affiliations, memberships, or sympathies or those of their coworkers, or warn or threaten our employees with economic reprisals because of union membership or activities or in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist AWNING & TENT WORKERS AND DECORATORS LOCAL No. 39, affiliated with UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. All our employees are free to become or remain members of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. H. WENZEL TENT & DUCK COMPANY, 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. GLEN RAVEN SILK MMLS, INC. and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case No. 11-CA-R88. November 6,195$ Decision and Order On March 19, 1952, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board 1 has reviewed the rulings made by the Trial Examiner ' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 101 NLRB No. 62.