American Sheet Metal Works

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMERICAN SHEET METAL WORKS and GENERAL DRIVERS LOCAL NO. 270, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL. Case No. 15-CA-498. July 15, 1953 DECISION AND ORDER On May 8, 1953, Trial Examiner Louis Plost issued his Intermediate Report in the above -entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices but recommending that the complaint be dismissed in its entirety . Thereafter the Respondent filed exceptions to some of the findings of the Intermediate Report, and the General Counsel filed exceptions to the recommendation made therein. The Board ' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Intermediate Report attached hereto, the excep- tions, and the entire record in the case . We hereby adopt the Trial Examiner's findings and conclusions only to the extent that they are consistent with the findings , conclusions, and order set forth below.' The Trial Examiner found that the Respondent engaged in certain unfair labor practices as defined in Section 8 (a) (1) of the Act by the conduct and statements of President Durand during the separate interviews of employees by him and other management officials , by the letter of May 31 , 1952, by Office Manager Lyncker ' s statement to Cook, and Foreman Felgoust's remark to Spruel during the interview period. We agree, but we rest our conclusions solely on the following grounds. As the Trial Examiner found, during the 2-week period preceding the representation election at the Respondent's plant , the Respondent called certain of its Negro female employees to the office one by one , and there, in the presence of their supervisors , questioned each one about their work; told them that some years before as the result of a strike at the Respondent ' s plant which the Union lost some of the employees were never recalled to work, and that in another situation union negotiations came to naught ; and urged them to reject the Union in the forthcoming election. In each instance the employee questioned was the only rank - and-file employee as well as the only Negro in the room . In the course of prosecuting the avowed purpose of these interviews, viz, to influence the employees to vote against the Union , President Durand stressed the Respondent ' s allegedly unique policy of ' 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 [Members Houston, Styles, and Peter- son]. 2 The Intermediate Report contains an inaccuracy which does not affect the Trial Examiner's ultimate conclusions. Accordingly, we note the following correction: It appears that the Respondent disparaged the Union's organizers and motives in its letter of May 31, 1952, and its notice of April 23, 1952, but not in its talks with individual employees 106 NLRB No 24. AMERICAN SHEET METAL WORKS 155 employing Negro women to do sheet metal work. And when it thereafter sent the letter of May 31, it repeated that state- ment of policy with the advice, "Ask the union if they can get you a job anywhere else as good as the one you now have." Further, at the time of the interview, in the case of employee Spruel, Foreman Felgoust added, "If you vote for the union and I find out, I am going to lay you off; you won't have a job." Also, in the case of employee Cook, Office Manager Lyncker alluded to the danger of the loss of her employment should the Union win the election. The technique of calling the employees one by one into a room in which they ordinarily had no business and which was associated primarily with management and of voicing antiunion opinions and urging that they reject the Union gave to the remarks hereinafter mentioned a meaning which they do not have under other circumstances.3 In this coercive atmosphere, including the Respondent's stress upon voting against the Union, the reference of President Durand to Respondent's unique policy of employing Negro women to do sheet metal work clearly implied a threat that if these employees voted for the Union they would lose their jobs--jobs which could not be readily replaced as the Respondent's plant was the only plant in the South to offer such desirable employment. Indeed, Felgoust's direct threat to Spruel at the time of her interview that if he learned that she voted for the Union he would lay her off, gave telling emphasis to the implied threat of loss of employment in the remarks of President Durand. Moreover, the letter of May 31, 1952, implied an identical threat of loss of employment and advised the employees to "Ask the Union if they can get you a job anywhere else as good as the one you now have." We find that the implied threat of loss of employment should the Union succeed which was made by Durand, Lyncker, and by the letter of May 31, 1952, and the direct threat of Foreman Felgoust interfered with, restrained, and coerced the employees within the meaning of Section 8 (a) (1) of the Act.4 THE REMEDY The Trial Examiner recommended that the complaint be dismissed in its entirety. We find that such a dismissal will not effectuate the policies of the Act. It is true, as the Trial Examiner noted, that the unfair labor practices found occurred only in the period immediately preceding the representation election which the Union won. However, it is well established that orders dealing with unfair labor practices have preventa- tive as well as remedial purpose and effect.5 Accordingly, we shall order the Respondent to cease and desist from 3Cf. General Shoe Corporation (Marman Bag Plant), 97 NLRB 499 4 Augusta Bedding Company, 93 NLRB 211; see United Biscuit Company, 101 NLRB 1552. 5 See N L. R. B. v. Crompton Highland Mills, Inc , 337 U. S. 217, enforcing 70 NLRB 206; Robinson Aviation, Inc., 99 NLRB 280; Local #1105, United Electrical, Radio & Machine Workers of America, CIO, et al , 84 NLRB 972. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD infringing upon the rights guaranteed employees by Section 7 of the Act. 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 Re- spondent , American Sheet Metal Works , New Orleans, Loui- siana, and its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening its employees with any reprisals because of their union organizational activities , or because they voted in favor of union representation at the plant. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization , to join or assist General Drivers Local No. 270, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, AFL, or any other labor organization , to bargain collectively through representa- tives of their own choosing , and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization 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 at its plant in New Orleans, Louisiana , copies of the notice attached hereto marked "Appendix A.i6 Copies of said notice , to be furnished by the Regional Director for the Fifteenth Region, shall , after being duly signed by the Re- spondent ' s representative , be posted by the Respondent upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Notify 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. 6In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words " Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 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 AMERICAN SHEET METAL WORKS 157 the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT threaten our employees with any reprisals because of their union organizational activity or because they voted in favor of union representation at the plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist General Drivers Local No. 270, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, AFL, 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, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organi- zation, except as that right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. AMERICAN SHEET METAL WORKS, 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. Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed by General Drivers Local No 270, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, herein called the Union, on June 23, 1952, the General Counsel of the National Labor Relations Board, herein called the Board, by its Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated November 4, 1952, against American Sheet Metal Works, of New Orleans, Louisiana, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act Copies of the complaint and the charge, together with a notice of hearing, were duly served on the Respondent and the Union. With respect to the unfair labor practices the complaint alleged that the Respondent inter- rogated its employees (a) as to their knowledge of union activities, (b) as to their union activi- ties ; (c) as to their union activities in previous employment , (d) threatened its employees with loss of their jobs if the Union won a representation election, (e) threatened reprisals 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should the employees strike; and (f) further that said conduct was violative of Section 7 of the Act, more particularly Section 8 (a) (1) thereof. i On November 13, 1952, the Respondent filed an answer denying that it had engaged in any of the alleged unfair labor practices Pursuant to notice a hearing was held before Louis Plost, the undersigned Trial Examiner, at New Orleans, Louisiana, February 3 and 4, 1953 The GeneralCounsel, the Respondent, and the Union were represented The parties participated in the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs, proposed findings of fact, and conclusions of law with the undersigned The undersigned denied a motion by the General Counsel to amend the complaint. The Respondent moved to separate the witnesses The undersigned granted the motion and likewise at the close of the hearing granted a motion by the General Counsel to conform all the pleadings to the proof with respect to names, dates, spelling, and similar matters. At the close of the hearing the General Counsel and the Respondent argued orally A date was set for the filing of briefs and/or proposed findings of fact and conclusions of law with the undersigned Briefs have been received from the Respondent and the General Counsel Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT The complaint alleges and the answer admits that. - Respondent, American Sheet Metal Works, is, and has been, during the material period herein, a corporation duly organized under and existing by virtue of the laws of the State of Louisiana, with its office and principal place of business located in the city of New Orleans, Louisiana, where it has been, and is now, engaged in the business of fabrication, sale and distribution of sheet metal products Respondent, in the course and conduct of its business, during the preceding twelve- month period, which is representative of all times material herein, purchased raw materials consisting of metals, lumber, paint and hardware valued at $150,000, 60 per cent of which materials were shipped directly from places outside the State of Louisiana to the Respondent's New Orleans plant During the same period, Respondent produced and sold finished products, consisting of various types of fabricated sheet metal, of a value of approximately $ 300,000, of which 60 per cent was sold and shipped outside the State of Louisiana IL THE ORGANIZATION INVOLVED General Drivers Local No 270, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, is a labor organization which admits employees of the Respondent to membership IIL THE UNFAIR LABOR PRACTICES A. Interference , restraint , and coercion 1 The gravamen of the complaint Prior to an election conducted on June 3, 1952, under the direction and supervision of the Regional Director for the Board's Fifteenth Region, forthe purpose of determining a bargain- ing, representative among certain of the Respondent's employees, the Respondent called certain of the electors to its office individually and spoke to them regarding the Respondent's attitude toward the formation of a union of its employees and otherwise addressed them iThe record discloses that the parties entered into an agreement for "consent election" to be held June 3, 1952. The alleged illegal conduct all occurred between the date of the "consent election" agreement and the election. The Union won the election. AMERICAN SHEET METAL WORKS 159 orally and by letter Z The General Counsel contends that the conduct of the Respondent was violative of the Act, the Respondent contends its conduct is such as is specifically protected by the Act as well as the constitutional guaranty of free speech. B. The General Counsel's version Jennie B. Cook testified that sometime during the week preceding the election held on June 3, 1952, she was called from her work as follows: Mr Ned came down and said Mr Durand wanted me upstairs. And I went upstairs to see what he wanted And after I got up there, there was Mr Durand, Mr Lyncker, Mr. Sam, and Mr. Ned came up behind. When I went in, Mr Durand said, "Have a seat." Q. Let me interrupt. You said "Upstairs " Tell us where you went, was it a big open spot or what9 A. We went in a room they call a conference room They meet there, in the con- ference room, where they have a big table and chairs sitting around there, and we all sat around the table and he started talking, asking me about did I know what was supposed to happen around there, and trying to get a union Q. Were you the only colored person present9 A. At that time, yes Mr Ned is identified in the record as Ned Felgoust , a plant foreman, Mr. Lyncker, as C. A. Lyncker, office manager , Mr Sam, as Sam Centanni , a foreman, and Louis P. Durand is the Respondent' s president and active manager of the concern According to Cook, Durand stated he understood " you are all trying to get a union"; asked if she " knew anything about it", remarked there would "be an election pretty soon" asked if she had joined the Union, asked where she had previously worked and if she had belonged to a union there , what the dues had been , and asked " if the company took it [dues] out of our pay"; stated that some "six or seven years ago they had a strike" in the Re- spondent' s plant , that during this strike the women stayed out 6 weeks and that after the strike the Respondent took back those it wanted to take back and those it "didn't want to take back he didn't take back ", told her the Union did nothing for the strikers , "gave them bread and cheese"; said "he would have people working in there this time if we went out," that there would be sufficient police at the plant to escort workers in and out Cook was also shown a sample ballot , told the election was "government" controlled, that the ballot was secret and the manner of voting was explained. Cook further testified that: During the time he asked me how much the union people pay a week, and I told him we paid for a month. He said, "That is why the plant is out of business, because they have a union in there " He said they were not going to put him out of business because he's not going to have a union Cook further testified that Lyncker also added the following to Durand's statements: Mr Lyncker said, "Suppose they get a union in here and the union says on this job you are now doing, they will have to put a man there, then you will be out of a job." In addition to Cook, four employees testified to having been similarly called to the upper room during the week preceding the election. It is apparent that the room used for the interviews was not open to the colored employees except in emergencies. The General Counsel offered to call seven additional witnesses who would present "the same pattern of testimony" stating that if permitted to testify "the same general proof would be offered." The undersigned declined to accept such evidence on the ground that it would be cumulative and needlessly burden the record The General Counsel objected but later withdrew his objection Everlena Netter testified- I got up there and he asked me, didn't I hear anything about the union, and I say yes He said, "You know all about it?" I said, "Yes, I know about it." Mr. Durand asked me, "Did you ever belong to the union before' " And I told him, "Yeah." 2 The Respondent's brief states that the Union won the election. There is no evidence regarding the result in the record. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said, " Whereabouts? " I said, "I worked in Kaiser Shipyard in the union " He said , " That is in California " I said, "Yes " So he said , " This is not in California And that was during the wartime " I said, "I know that too, Mr Durand " He said, "Let me tell you, there is nothing to the union when it was here before, I am just trying to warn you Those poor devils were walking in the hot sun six weeks, they didn't win the strike , and I don' t care who walks out there and who don't, my work is going right on " He said, " I got enough police to help me get my workers back and forth to work." I said , "What do you want me to do? " He said , " I ain't going to tell you to vote or not to vote . But I am warning you if you vote , I don't know if you vote or if you don't vote, but if you don' t vote, as long as I got work , you have work." According to Netter , Lyncker then told the following anecdote: The union is a mess Over the river one time , a man over there was having some grass planted, and he didn't know how to plant the grass , but the union man planted the grass anyway , and it didn't grow . Then a man not with the union come along and planted the grass and it come up Netter testified that Lyncker remarked in closing, " I have been running the plant for 50 years and there wasn't no union, wasn't never no union , and I am never going to have a union 3 Irene B. Spruel testified that after being invited to be seated she was asked by President Durand if she had heard the rumor regarding the Union, how long she had worked for the Respondent , told that she had not been laid off "because we like your work ", told that the Respondent' s was the only plant of its kind in the South employing colored women in jobs like hers , told that colored women could not get jobs equal to tiers anywhere else; told that if the Union won, "the Union would be our bosses " Spruel further testified that Durand also said to her' " I don't want to know if you signed a card or didn't sign a card I want to tell you don't go wrong vote for the company , because the company have never had a union and don't want a union in this plant Spruel testified further: And then Mr Ned told me about they liked my work and how long I been working and the favors Mr Durand had did for me by letting me off to attend to business and all, and Mr Ned told me, "If you vote for the union and I find it out, I am going to lay you off you won't have a job " Millini Jackson testified as follows: Ned came downstairs , and he brought me upstairs and in a little office Ned, Mr. Durand, Mr Lyncker, and Sam was sitting in there Mr Durand asked me how longIhad been working in there, and I said three years off and on He said , did I like my job, and I said , "Yes " He asked me, have I ever belonged to a union I told him no So, he 3Lyncker denied making the statements attributed to him by Netter Durand testified that nothing was said by anyone concerning grass. However, he offered the following explanatory testimony: THE WITNESS: Mr. Lyncker came to me and stated that he is acquainted with one of the executives at the Johns- Manville plant across the river and that they had to have a gardener to take care of their lawns and flowers around that plant, so they employed a gardner; and their gardner then, the union in the shop objected to this gardner because he wasn't a union man and they wanted this party to take a man out of the shop, an iron worker, to take care of the flowers and they almost had a strike I don't know how this got to anyone else. I mentioned it to Mr Lyncker and, no, Mr. Lyncker mentioned it to me and I might have mentioned it to somebody in the office and somebody else said something and that is where the grass business comes in The undersigned is persuaded that Netter could not have attributed the "grass" story to Lyncker unless she heard it from him. Under all the circumstances in the case the under- signed finds that Lyncker did tell a story regarding the growing of grass as involving a union in the presence of Netter , but it is apparent that she did not understand it or report it ver- batim. AMERICAN SHEET METAL WORKS 161 said. "Well, I wasn't going to ask you whether you were going to vote for the union or not, but if you do, the union won't do nothing for you, because when we were on strike before, it was for three weeks, and they were walking, and toting picket signs, and people were on the inside working, and the union ain't going to do a thing for you but make you lose your job." He said, "A lot of girls think if the union don't win I am going to take them back." He said, "Some, I am going to take back, and some I ain't " He had a little ballot showing me how to vote, and he said to vote with the right hand. he had an "X" marked in the right hand side and he say, he told me, he say, "If you vote for the union, the union ain't going to do anything for you." He say, "I am not asking you not to vote for it, but if you don't vote for it, you have a job as long as you want to have one " Ada Mae Jones testified that after being called to the place of interview she was first asked by Durand whether she had heard the union "rumors" and then said "he didn't want no union and wasn't going to have one " Jones' testimony with respect to Durand's statements continued as follows: Durand said] They tried to get a union many times before, the girls walked a picket line while the rest drawed their pay. His work went on before, he said, and it was going on this time. He told me that if I liked my job and wanted to work, to vote for him, but if I voted for the union, I wouldn't have no job Q. Do you recall anything else? A. He also laid the ballot on the table and told me how to vote, to vote with my right hand Q. Did he ask you any questions? A. He asked me if I had anything to say and I told him "No." I said I didn't have anything to say Q. Did he ask any questions concerning the union? A. He asked me if I had ever belonged to the union and I told him "No." I said I hadn't C. The Respondent's version Louis P. Durand, .the Respondent's president, called by the General Counsel as a hostile witness, testified that within a 2-week period preceding the June 3, 1952, representation election conducted in the Respondent's plant he spoke to all the Respondent's employees "concerning the election " Durand testified: I spoke to the white employees as a group; to the colored employees, some of them, not all of them, at different times Durand testified that the colored employees were called from their work, at his direction, and escorted to the second floor room where he spoke to them in the presence of the plant foreman and the office manager He admitted that not alt the colored employees were called, but that some were omitted because in his opinion these employees could not be convinced to "see it my way " Durand testified that a regular pattern was followed both as to conduct and statement When the employee was brought into the room according to Durand's testimony: I put them at ease I asked them to take a seat and sit down I would open up the conversation, say, "Mary," or "Jane," or whoever it was, "Are you happy with your job here? " She would reply, "Yes " Durand testified he then asked where the employee had worked before her employment with the Respondent; following this in each case My way was, I was pointing out to these employees the working conditions in the place. I told them that we have had--we were the only firm in our line of business that employed colored women. I asked them if they were happy with their job. I asked them for--could they believe, did they believe • that they could- -that I felt sure they couldn't earn any, make as much money as they were making elsewhere as they were earning here. I further asked them, I figured out with them, considering piece-work, their extra time, 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I showed them how much money they made; and I pointed out all the benefits that they had of working with the American Sheet Metal Works With respect to Jennie & Cook, who had not yet been called, Durand testified: I asked Jennie Cook how she liked the job . She said she liked it very well. I have asked her-- I have told her that the reason why I have sent for her was I wanted to know-- first, I told her this : I said , " I don' t want to know whether you belong to the union or not I do not want to know whether you belong to the union or not. I do not want to know whether you have signed any union card or not . In fact, I am not interested in that What I do want to know from you is. Are you satisfied with your job? Are you happy here'" And I called her attention-- 0 I then called her attention that we were the only firm in our line in New Orleans, in fact I believe in the entire South , that employed colored women. Durand denied that he asked Cook if she had belonged to a union at her former place of employment ; admitted that he asked what she earned and why she had quit and upon being told by Cook that her former employer had gone out of business had remarked " That is the trouble in so many jobs ." He further testified that he told Cook to ask another employee regarding "the trouble we have had before. We have had strikes ; we have had elections, and nothing came out of it." He further admitted telling Cook: That we had an election , that the employees carried the election by one vote , and that we negotiated with the union , but did not arrive at any agreement , and the union abandoned the case. Durand was recalled by the Respondent after the General Counsel had presented his evi- dence and the supervisors named as having been present during the interviews had been called by the Respondent and had testified. Durand testified , on examination by the Respondent , that he spoke to the employees during a 4-day period that each interview lasted approximately 5 minutes , that he followed a "gen- eral line" which applied to all those to whom he spoke but frankly testified " I wavered from time to time "; that he used no notes or any prepared material during these interviews; that as early as February he had been instructed by the Respondent ' s attorney not to inter- fere in the employees ' union affairs that he invariably told all those to whom he spoke he was not interested in knowing whether or not they had joined the Union or learning any of their union activities Durand also testified: In many cases I have asked them where they worked before , how long they have been working for us and I have told them that we had some previous union campaigns, that we have had a strike many years ago and that many employees now working for us were in that strike I told them, I suggested to them that they go and talk to them and see what they have to say about the strike , whether they gained anything from it I asked them , I have told them that many of the employees who were on that strike did not return to work for the reason that we had employed others and we didn't have room for them, but we told them that when there was an opening , we would send for them. That is about the general line and if I can think of some more, I will mention it. Following the testimony of Jennie B. Cook, Durand denied that he inquired into her present or former union membership, the amount of dues she had paid , or the existence of a "check off" at her former place of employment , denied saying he would not permit a union to put him out of business , denied the statements attributed to him by Cook regarding a former strike and testified that as to the strike: I made a statement in my general line of talk, I mentioned that some of the employees were not reemployed for the reason that all the places were filled. I may have mentioned that in the case of Jennie Cook In general Durand denied all the statements attributed to him by Cook and testified that his "general line" represented his statements to Cook. AMERICAN SHEET METAL WORKS 163 Durand further testified that Lyncker explained the mechanics of the election and the ballot to Cook, telling her as well as other employees "if they wanted to vote for the Com- pany, to mark the block, to make a cross in the block 'No'." He denied telling Cook or any other employee that police protection would be furnished working employees in the event of a strike. Durand testified he had prepared and sent to each employee a letter giving the Respondent's position as being that it "did not want the Union." Copies of these letters were admitted and will be discussed elsewhere in this Report Both specifically and in effect Durand denied the statements attributed to him by the General Counsel's witnesses except where they were in accord with the statements he testi- fied as being contained in his "general line" however, with respect to Irene B. Spruel, Durand testified as follows: I mentioned to Irene Spruel that we take an interest in our employees as she knows, herself She knows that we have helped her financially on several occasions She knows that we have telephoned to a lawyer in Baton Rouge in connection with the death of her husband and helped her in many ways in those things, and that is the interest that we take for those that work, in the affairs of those that work for us, when she asked us to. Durand denied telling Millini Jackson that "the union would make her lose her job" but admitted "there is a possibility" he did tell her "the union isn't going to do a thing for you " He testified that he might have made the latter statement because he knew he had also "said that in these notices " Durand testified that "the whole trend" of his various conversations with employees was "to prove that they had a good job" and further admitted that he "intended to prove to them they didn't need a union." Foreman Ned Felgoust testified he called certain of the employees for President Durand, that before calling the employees to the office he and Durand discussed the probability of their being union members and refrained from calling certain employees whom "we didn't feel that whatever he said to her would help us any." Felgoust testified he was present when Durand talked to employees Spruel and Jones. In general Felgoust denied their specific testimony. With respect to Durand's statements to the employees Felgoust testified as follows: Q. Now, tell us what was said, what happened in the conference9 A. Well, the general remarks Mr. Durand had to tell them was, when they came up, he asked them to have a seat and he told them that he didn't want to know if they belonged to a union or if they signed a union card. All he wanted to tell them is he thought they had a good job and if they like their job and he asked some of them where they worked before Q. Is that all that you recall? A. He asked some of them where they worked before. He asked them if they liked their job. As to Spruel, Felgoust testified, he did not tell her she would be laid off if she voted for the Union. On cross-examination he summed up Durand's interview with Spruel as follows: He told Irene Spruel, he said to Irene Spruel, he did not want to know if she belonged to a union or if she signed any union card. All he wanted to know was, if she liked her job, and he thought she did, and told about the extra pay they got when they worked on piece-work and the extra time when he left the work so they could make extra pay, and he also told her how he helped her out financially and how he helped others out also whenever they were in trouble. Felgoust further testified that no mention was made of any previous negotiations with any union that Lyncker explained the mechanics of voting and the ballot, and that the interviews lasted "about a minute, I guess a minute and a half, something like that." Felgoust testified that "just a little after it [the Union activity) started," Durand told him that the Respondent's attorney "said to be sure not to threaten an employee or not to promise them anything, not to talk to them about it at any time " Foreman Sam Centanni testified that he was present at the time Durand talked to Cook, Netter, and Jackson, he having called the three women to the office from their work for individual interviews 322615 0 - 54 - 12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Centanni testified Individually , and we asked them to have a seat and then Mr Durand and I told them we were not interested in whether they belonged to a union or whether they had signed a union card TRIAL EXAMINER PLOST Who told them? THE WITNESS' Mr. Durand . In fact, we didn't want to know anything about their business . Then , it was asked whether or how long they had worked for the American Sheet Metal Works and if they liked their job and if they had worked previously in any other places and mentioned to them that they had a very nice job and if they knew where they could get one that paid as well. Q. (By Mr Inman) Is that all you recall off-hand) A. Well, I think so. Centanni also testified that Lyncker explained the ballot to the employees as follows. He told them that this here was an election, a government election, and no one knew or was going to know how they voted and he explained to them how to fold their ballot after they completed it and how to place it in the box If they wanted to vote for the union, they would vote "Yes," and if they wanted to vote for the company, they wanted to vote "No " Q. Is that all that you recall? A. That is all, yes G. A. Lyncker, the Respondent' s office manager, testified he was present while President Durand talked to the various employees called to the office . Lyncker testified: Well, these women came into the room and Mr Durand asked them to be seated. Mr Durand told them that he was not interested in knowing whether they belonged to a union or not and didn't want to know whether they had signed a card for the union. Lyncker further testified that all employees interviewed, including Cook, were asked if there was a union where they had previously worked but were not asked if they then or previously had belonged to a union, or asked the amount of union dues they had paid He testified that Cook was asked what she earned at her former place of employment, why she quit, and upon her saying she quit "because the place closet' up," Durand remarked "Well that is the trouble with those fancy jobs", he denied that any mention was made of police protection for workers, denied Cook's testimony to the effect he stated that a union might insist that she be replaced on her job by a man. He denied that Durand made any of the statements attributed to him except those admitted by Durand as part of his " general line"; admitted that Durand told Spruel "that he did not think colored women have as good a job anywhere else in this locality", denied that Durand stated if there were a strike "I am going to take some back and some I am not," or that Durand told any employee that if she did not vote for the Union "you have a job as long as you want to have one," but testified that Durand pointed out that during a prior strike "the work went right on." As to Jones, Office Manager Lyncker testified: She was asked by Mr Durand to be seated He told her that he was not interested in knowing whether they belonged to the union or not, nor if she had signed any card for a union and asked if she was satisfied with her job and how long she had worked for the American Sheet Metal Works and that she was getting good pay, that is, the pay and the extra time plus piece-work and that he believed that she could not get a better job than that in a plant of the same type The following statement was made by the Respondent's attorney during a colloquy on the record: MR. LANG' The testimony of this witness, and I understand the previous witnesses that testified for the respondent , is practically identically the same thing that was said by Mr Durand and Mr. Lyncker to all of them Now, the question which is now being asked by Mr Inman is designed to show that all of these women, these women were told practically identically the same thing, all 25 AMERICAN SHEET METAL WORKS 165 Of the 25 employees so stated to have been interviewed Lyncker could name only 8 in addition to the 5 called as witnesses, he could not recall the days on which various employees were called nor the order in which they appeared. Lyncker testified that when the Union first appeared in the plant he had been instructed not to talk to employees regarding the Union; "that Mr. Durand would do all the talking " Conclusion as to the Respondent's Contention According to Durand's testimony he had been carefully instructed by legal counsel with respect to his conduct concerning the union activities of the Respondent's employees. Whether or not the "interviews" of the female colored employees followed the guidance of one versed in the law or whether they were Durand's own idea does not appear in the record, however, the undersigned could be easily persuaded the latter is the case According to Durand's corroborated testimony he sent for no employees he thought would not be persuaded by his arguments and in his remarks to each individual employee, "I was just setting my case before her" in order to "prove to them they had a good job" and did not need a union. Durand further testified: TRIAL EXAMINER PLOST: You were very careful not to say anything to these wit- nesses that would in any way appear to be a threat against their jobs , isn't that what you are trying to say? THE WITNESS. Absolutely. Durand and those called to corroborate him were very sure of what was said; positive of the "general line" followed, and quite clearly recalled any departure therefrom The re- markably definite character of this testimony, despite the fact that no written notes or guide was followed, becomes clear through a written document, not in existence during the inter- views. The Respondent sent all its colored employees a letter in which it made its position as to a union clear The letter was dated May 31, 1952, 4 and is a resume of the statements Durand testified were his "general line " The testimony of Durand, Felgoust, Centanni, and Lyncker plainly follow the contents of the letter above mentioned The letter, although prepared after the fact, in the opinion of the undersigned, accounts for the similarity of the testimony and its corroboration as relating to interviews lasting from i to 5 minutes over a period of 3 or 4 days. 4 The letter reads: May 31, 1952 This letter should reach you the day before the election which will be held Tuesday, June 3, at eleven o'clock in the morning. As you know by this time the AMERICAN SHEET METAL WORKS does not want a union here. Union organizers probably have made many promises to you, as they made to our employees on two such occasions in the past. Let us tell you what those promises amounted to at those times On the first occasion the union called a strike. Those of our employees who belonged to the union walked the picket line for six weeks, without pay, while the other employees continued working in the factory and drawing their regular pay checks. If you vote for the union you also may be walking a picket line; but don't forget that you do not get a pay check for that kind of work At the end of six weeks the strike was called off. The strikers gained nothing; instead, they lost six weeks' pay. And the company did not take back all of the strikers as others had been employed in their places On the second occasion the union carried the election by a majority of one vote; but, after many meetings between the company officials and the union, the union just gave up and quit. For the second time the employees had gained nothing. The union organizers do not care what they promise because they do not have to keep these promises. The union cares nothing for you or your welfare. The union only wants your money. You know that you will have to pay dues and initiation fees to the union, and you may be called upon to pay assessments to support strikes in other cities, or for political or other purposes. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Persuasion or Pressure If the undersigned completely discredits the testimony of the General Counsel's witnesses, the record as reflecting Durand 's admissions will compel the following findings: The Respondent's president (Durand) who is 75 years old and has managed the business for more than 50 years freely admitted that he called certain of the Respondent's colored female employees to the office where in the presence of their supervisors the individual employee, who was the only rank -and-file employee as well as the only colored person in the room, was asked and permitted to answer only two questions: (a) was she happy in her job, (b) where had she worked before; following which she was told by Durand that some years before a union had called a strike in the Respondent's plant, that the strike was lost and thereafter some of the strikers were never recalled to work, and told that at another time a union won an election but after futile negotiations with the Respondent "the Union just gave up and quit." At least one employee was reminded of past favors and financial help extended to her by the Respondent . The Union's organizers and motives were disparaged. The employee being talked to was reminded that the Respondent 's plant was the only one in the South employing colored women for the kind of work she performed. The employee was asked to vote "for the Company." After the "interview" a letter was sent the employee in which she was told that her employer "did not want a union " and the statements admittedly made to her by Durand were repeated. In the opinion of the undersigned this conduct was designed to instill fear in the employees. After such treatment the employee was clearly expected to understand that if the Union, which her employer did not want , was voted into the plant , the good job she had would be lost to her and could not be readily replaced as the Respondent 's plant was the only one in the South which offered her such desirable employment. Under all the circumstance of the case and on all the evidence considered as a whole the admitted conduct of the Respondent constituted an implied threat of reprisal , clearly violative of the Act. The undersigned does not lose sight of the constitutional guaranty of free speech and of Section 8 (c) of the Act which takes an employer's expressions free from "threats of reprisal or force or promise of benefit" out of the realm of evidence of unfair labor practices. The undersigned is also fully mindful of the cases cited by the Respondent , including the Winer case, 5 however the undersigned believes that these cases do not apply. In a concurring opinion in a case brought under the Wagner Act,6 the Honorable Gerard D. Reilly, ever a strong supporter of the right of employers to freely express their views and opinions on union matters affecting employees , made the following statement, which although not made in a case under the Act, in the opinion of the undersigned clearly states the law as applicable under Section 8 (c), The union organizers may have told you that you must vote for the union because you may have signed a card or paid union dues That is not true. That does not mean that you have to vote for the union. That card does not mean a thing in this election. You may vote as you please. Nobody will know how you vote. Don't let anybody tell you that you have to vote for the union because you signed a card. ANYTHING YOU MAY HAVE SIGNED, ANYTHING YOU MAY HAVE SAID, ANYTHING YOU MAY HAVE PAID HAS NOTHING TO DO WITH THE WAY YOU VOTE Don't forget! This is a secret election under control of the United States Government NO ONE NEEDS TO BELONG TO THE UNION TO WORK OR TO VOTE IN THIS FACTORY. You do not have to pay dues or assessments to hold a job in this plant Don't forget that in this locality the AMERICAN SHEET METAL WORKS is the only factory making sheet metal goods that employs negro women. Ask the union if they can get you a job anywhere else as good as the one you now have We want you to vote. We want you to vote against the union. Mark the square on the right side of the ballot. Mark the right square and vote No. Yours truly, /s/ Louis P. Durand Louis P. Durand, President AMERICAN SHEET METAL WORKS 5N. L R. B. v. Arthur Winer , Inc , 194 F . 2d 370 (C. A. 7). 6 Van Raalte, Inc., 69 NLRB 1327. AMERICAN SHEET METAL WORKS 167 Although I do not believe that certain comments in the majority decision can be supported, I concur with the ultimate conclusion reached by my colleagues that the utterances of the respondent company's officials violated subsection 8 (1) of the Act and cannot be defended as mere incidents of the exercise of free speech. In reaching this result I am not impressed with the narrow construction which my colleagues place upon the doctrine of the American Tube Bending case, or such meta- phors as "involuntary audience" or "pattern of respondent's coercive conduct." It seems to me that it is unnecessary to resort to such strained rationalization in view of the fact that the speech delivered by Vestal was calculated to intimidate rather than to appeal to reason. Although the record contains a concession that the speech was directed at the organizational drive going on (and it seems reasonably clear that the employees so must have understood), there is no specific mention made in it of the charging union or labor organizations generally. An argument couched even in bitter terms, if specific, would be permissible. This employer, instead, chose to implant fear in his audience for a Spenglerian atmosphere of approaching doom characterized the entire address, culminating in a warning that workers unmindful of their employer's forebodings should seek employment elsewhere. The undersigned is convinced and finds that in its oral and written expressions to its employees, as admitted by President Durand, the Respondent did not confine itself to intel- lectual discussion or argument; did not confine itself to persuasion but realistically the Respondent was exerting pressure on its employees with respect to their union sympathies; and therefore its conduct as hereinabove found constituted an implied threat, violative of the rights guaranteed employees in Section 7 of the Act. D. Additional interference, restraint, and coercion There remains to be considered the testimony of the witnesses called by the General Counsel as herein found. Of the five witnesses called by the General Counsel, with respect to,the office interviews, only Cook testified that she was asked if she belonged to the Union, while Netter, Jackson, and Jones testified they were asked if they had formerly belonged to a union, and all but Cook testified that Durand told told them he did not want to know if they had joined the Union. Durand denied asking Cook if she belonged to the Union, denied asking the others if they had formerly belonged to a union but admitted asking those interviewed where they had worked before and if there had been a union there. Jackson testified that Durand told her "the Union ain't going to do a thing for you but make you lose your job" and Jones testified that Durand warned her "if I voted for the Union. I wouldn't have no job." Cook, Netter, and Jones testified they were told that the Respondent would never have a union in the plant. Durand denied the above-related testimony. Durand testified, credibly, that he was instructed by competent counsel as to his conduct with respect to the union activities of the employees, especially not to make inquiries or threats. It may well be that his remarks closely approximated the letter later sent to the employees and if this be so the Respondent's witnesses, while not giving an actual verbatim account of Durand's statements, may actually and honestly be reporting their impressions of his remarks. Their testimony may well be, considering the setting and all the circum- stances, what they thought they heard colored by their natural fears. It may be that no matter what was said, the impression remains with the witness, not the words. The undersigned is convinced this is the case and therefore finds that Durand did not actually verbatim inquire into the union membership of the employees above mentioned and did not actually, in so many words, threaten them with loss of employment in the event the Union won at the election; however, the undersigned is convinced and finds that it was Durand's intention to implant such an impression in the minds of these employees. The undersigned is persuaded by the testimony that he succeeded. Cook testified: Mr. Lyncker said if they get a union in here, suppose the union says, "The job you are now doing, to put a man on it, then you would have no job." Lyncker denied making the statement. Spruel testified that during her interview Felgoust made the following statement to her: 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If you vote for the union and I find it out, I am going to lay you off; you won't have a job. Felgoust denied the testimony. On the entire record the undersigned credits Cook and SprueL Lyncker's statement to Cook is merely an argument and standing alone does not constitute a threat but in the setting in which it was made the undersigned believes it fair to construe it as part of the Respondent's effort to instill fear in the minds of its employees and equating Lyncker's statement in relation with Durand's remarks, it is clearly a part of the implied threat herein found. The undersigned so finds. Spruel impressed the undersigned as a truthful witness . In general her testimony was not contradicted. The undersigned believes that Felgoust, who according to his testimony acted principally as a messenger during the period of the interviews , calling employees and being in and out of the room, seeking to inject himself into the proceedings as a participant, other than a messenger, was not as discreet as the Respondent 's president. The undersigned , from the observation of the witnesses and on the entire record, credits Spruel and finds that Felgoust did, in effect, threaten her with discharge if she voted for the Union. Concludings Findings Upon the entire record in the case, the evidence considered as a whole, and his observation of the witnesses, the undersigned finds that by the conduct and statements of President Durand, as fully set out in section III, above; by its letter to those employees interviewed, sent under date of May 31, 1952; by Lyncker's statement to Cook as found in section III, D, herein; and by Felgoust's threat to Spruel also found in said section III, D, the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act. 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 its operations 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 The record is clear that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. However, since it is also clear that the charge upon which the complaint is based, which charge was filed on June 23, 1952, relates only to conduct affecting a "consent election" held on June 3, 1952, which conduct occurred shortly before the election and after the signing of the "consent" agreement, and moreover since the Union won the election, the undersigned does not perceive how any remedial purpose can possibly be served by an order that the Respondent cease and desist therefrom, especially so in view of the fact that the complaint was issued November 4, 1952, and the hearing held February 3 and 4, 1953, and the further fact that the record is entirely barren of any showing whatever or even any claim that the Respondent engaged in any previous unfair labor prac- tices or in any unfair labor practices after those found herein. Therefore the undersigned will recommend that in order to best effectuate the policies of the Act the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The Respondent, American Sheet Metal Works, New Orleans, Louisiana , is engaged in commerce within the meaning of Section 2 (6) and (7 ) of the Act. 2. General Drivers Local No. 270 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America , AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The policies of the Act will not be effectuated by an order enjoining the Respondent to cease and desist from the unfair labor practices found in this report. [Recommendations omitted from publications