General Shoe Corp.

774 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD ization and collective bargaining granted by the Act,7 we find that it will effectuate the policies of the Act for the Board to assert its juris- diction and direct an election in this proceeding. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees, including all Indian employees," employed by the Employer at its mine on the Fort Hall Reservation, Idaho, excluding clerical employees, professional em- ployees, guards, and all supervisors as defined in the Act .9 [Text of Direction of Election omitted from publication in thu& volume.] [CHAIRMAN HERzoG took no part in the consideration of the above Decision and Direction of Election.] 4 Pursuant to administrative determinations , Indians have been held to be eligible for benefits under other general Federal legislation , such as the Taylor Grazing Act of 1934 (Op. Sol . I. D, M 28869, February 13, 1937 ) and the United States Housing Act of 1937 ( Op. Sol I D., M. 30807, August 6, 1940). 8 See paragraph numbered 1, supra. D Except for the Employer ' s desire to exclude all Indian employees from the unit, the parties aie in general agreement as to the appropriateness of this unit. GENERAL SHOE CORPORATION and BOOT & SHOE WORKERS' UNION; AFL. Case No. 10-CA-1173. August 26, 1952 Decision and Order On February 4, 1952, Trial Examiner Lee J. Best issued his Inter'-- mediate 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 1 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 Houston and Murdock]. 100 NLRB No. 131. GENERAL SHOE CORPORATION 775 'Uhe rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.2 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that General Shoe Corporation, Nashville, Ten- nessee, its officers, agents, successors , and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees concerning their own or coworker union affiliations, activities, or sympathies. (b) Threatening its employees with loss of opportunity for ad- vancement in their employment because of activities in behalf of Boot & Shoe `Yorkers' Union, AFL, or any other labor organization. (c) Promising aid or assistance of any kind to its employees or the continuing favor of their employer as an inducement to refrain from engaging in self-organization or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations , to join or assist Boot & Shoe Workers' Union, AFL, or any other labor organization , to bargain collectively through representatives of their own choosing, ,ind to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and 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 organization as a condi- tion 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 Ninth Avenue plant in Nashville, Tennessee, copies of the notice attached to the Intermediate Report and marked "Ap- pendix A." 3 Copies of said notice, to be furnished by the Regional 2 Because the General Counsel did not file exceptions to the Trial Examiner's findings that certain conduct of the Respondent did not virlate Section 8 (a) (1) of the Act, we adopt these findings. In its exceptions, the Respondent contends that the conduct found by the Trial Examiner to be unlawful is protected by the "free kepeech" provision of the Tennessee constitution Not only did the interrogation, promo es, and threats by the Respondent go beyond any permissible freedom of expression permitted by Section 8 (c) of the Act, but the Tennessee constitution cannot immunize conduct made unlawful by the Federal Act 3 This notice, however, shall be and hereby is amended by striking from the first para- graph thereof the words "The Recommendations of a Trial Examiner," and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted 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 " 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immedi- ately upon receipt thereof and maintained by it for at least 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 such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order, of the steps taken, to comply herewith. Intermediate Report STATEMENT OF THE CASE By reason of a charge filed on December 6, 1950, by Boot & Shoe Workers' Union, AFL, herein called the Union , the General Counsel of the National Labor Relations Board, separately designated herein as General Counsel and the Board, respectively, by the Regional Director for the Tenth Region (Atlanta, Georgia ), issued a complaint dated October 3, 1951, alleging that General Shoe Corporation , herein called the Respondent, engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1) and 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices , the complaint alleges in sub- stance that the Respondent during and about the period from August through November in the year 1951, by and through certain officials and supervisors interfered with , restrained , and coerced employees of its Ninth Avenue plant, Nashville , Tennessee in the exercise of the rights guaranteed in Section 7 of the Act by ( 1) interrogation concerning their union membership , activities, and sympathies , ( 2) threats of economic and other reprisals by reason of member- ship in or activities on behalf of the Union , including shutdown of the plant, and (3 ) promises of financial and other benefits for refraining from membership in and activities on behalf of the Union. The Respondent filed an answer admitting pertinent allegations of the com- plaint with respect to commerce , but denied having engaged in any unfair labor practices. Pursuant to notice to all the parties , a hearing was conducted at Nashville, Tennessee, on October 29 and 30,1951, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner . The General Counsel and Respondent were represented by counsel , and a representative of the Union was present. All parties were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues involved. At the close of the hearing all parties were instructed as to their right to file written briefs and to submit proposed findings of fact and conclusions of law. Counsel for the General Counsel and the Respondent orally argued upon the record ; and all parties announced that no written briefs or proposed findings or conclusions would be submitted. Upon the entire record in the case and from observation of the witnesses, I make the following: GENERAL SHOE CORPORATION 77T FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT The Respondent is a corporation organized and existing by virtue of the laws of Tennessee. It is principally engaged in the manufacture, sale, and distribu- tion of shoes, and operates several factories throughout the States of Alabama, Georgia, Kentucky, and Tennessee. The factory solely involved in this case is located at Nashville, Tennessee, and known as the Ninth Avenue Plant. In the business operations of that plant during the past representative year, the Re- spondent purchased supplies and raw materials valued in excess of $1,000,000, approximately 80 percent of which originated outside the State and was shipped to the Respondent in interstate commerce. During the same period at that plant, the Respondent manufactured and sold finished products valued in excess of' $1,000,000, more than 90 percent of which in value was distributed to customers outside the State of origin. I, therefore, find and the Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Boot & Shoe Workers' Union, AFL, is a labor organization within the meaning- of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Management of Ninth Avenue plant Operations of the Respondent are subdivided into divisions under the control of division superintendents. The Ninth Avenue plant is a part of the women's- high style division. Eli White is division superintendent. Lee Binkley and C. R. Hooper are divisional personnel directors. Divisional officials maintain offices at the general offices of the Respondent at Nashville, Tennessee, in the General Shoe Building on Seventh Avenue. They exercise general supervision over personnel at the Ninth Avenue plant, but the plant maintains a separate operating staff. Plant officials and supervisors include (1) Everett Evans, plant superintendent ; (2) Henry Wills, assistant plant superintendent; (3) George Cochran, office- manager; (4) Leon Avaritt, personnel director; (5) O. E. Smith, standards di- rector; and (6) several department managers and assistant managers. The plant operates cutting, lasting, bottoming, fitting, making, and packing departments,- wherein approximately 100 people are employed. At times the number of em-- ployees has exceeded 150. B. Union activities In July 1950, employees at the Ninth Avenue plant were dissatisfied and were threatening to go on strike. Roy Hill, a member of the grievance committee,- went to the plant superintendent and requested a meeting to discuss their problems and grievances. Plant Superintendent Evans asked what it was all about and said he would get in touch with Rudy Hooper, the division personnel director. When no meeting was called at the end of 3 days, Hill conferred with labor representatives at the Labor Temple in Nashville, and they procured union: representatives from St. Louis. Roy Hill then distributed union membership cards among the employees. Thereafter, on August 8, 1950, Boot & Shoe Workers' Union, AFL, filed a petition with the Board for certification as exclusive bargain- ing representative in a unit to include all production and maintenance employees, excluding office clericals, guards, watchmen, and supervisors as defined in the Act. A representation hearing was conducted on September 21, 1950, and the- 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's Decision and Direction of Election issued on October 30 , 1950.' There- after, on November 29, 1950 , the Union was permitted to withdraw its petition and no election was held. On December 6, 1950 , the Union filed a charge against the Respondent alleging unfair labor practices in violation of Section 8 (a) (1) of the Act. C. Interference, restraint, and coercion At the beginning of the union campaign , Division Superintendent Eli White called Roy Hill to the plant office and said he would like to try to get the thing straightened out and find out what was going on. Hill was told that he was not required to answer questions he did not want to answer White inquired how lie felt about the Union and whether lie had signed a union card . Then he asked -Well, why do you think that will help you?" Hill told him that it was job security, and that he thought it would help him in many ways White then said "Well, don't you have a grievance committee ?" Hill explained that if they -wanted to see Mr. Jarman ( president ) and he said no, that was no. White replied "Well , that's just like taking a chance of walking out in the street and -getting run over." White expresed enjoyment in talking to Hill and suggested that he might call him back sometime . He told Hill if he saw fit "So help me God, join the Union." Division Personnel Director C. R. Hooper approached Roy Hill at his machine in the plant and inquired what seemed to be the trouble around there , what was -going on about this union activity . Hill told him about how the people (eni- ployees ) felt, about trying to get a meeting , and everything about how the union -campaign started. Thereupon,' Hooper said he would go around and talk to the -employees and see bow they felt about it. Roy Hill was introduced by another employee to Division Personnel Director Lee Binkley. Thereafter, over a period of about 2 weeks , Binkley had several -conversations with him at the plant. In the first conversation Binkley ex- plained that he carried a union card himself for 12 years , and thought the Boot .& Shoe Workers , AFL, was best if they had to get a union . He did not think a union could help much because the Company was giving the employees every- thing a union could offer . At another time Mr Binkley called Hill to the personnel office, and inquired "Do you still feel the same way about the thing -as you did ?" Hill assumed that he was talking about the Union, and told him he felt the same as before. Binkley remarked that Hill had a lot of opportunities with the Company, but he would not tell him anything because that -would be just what Mr Shannon (the union organizer ) wanted to hear. Bark- ley promised to help him all he could if Hill wanted to get out of the Union. He pointed out that another employee ( Taylor Jordon ) had "stuck his neck -out" when the Teamsters Union was trying to organize the shipping department ,over on Main Street. He further stated that Hill could get out and still stay clear with the Company, and get along fine. Binkley inquired whether the Union was paying Hill to organize the plant ; and suggested that it ought to -pay him because he was doing all the work , and that the other men were sitting back letting him do it. Following a meeting at which the union representative -failed to appear , Binkley asked Hill what had happened to his buddies-had -they run off and left him, or what. Binkley inquired how far Hill was going to carry his friends, and whether he was about ready to quit and give up- -that he thought he could still help him, if he was ready to get out . Hill told Binkley that he was ready to quit when his friends came to him and said they were ready to quit. ' Case No 10-RC-1021. GENERAL SHOE CORPORATION C. Organized opposition to the Union 779 In the latter part of July 1950, Everett Evans, plant superintendent of the Respondent , adopted a plan of combatting self-organization by questioning the employees concerning their dissatisfaction and desire to have a union. It was clearly his intention to influence and persuade the rank-and -file employees in their choice of a bargaining representative without resorting to threats of reprisals or force or promises of benefit. He initiated a series of interviews and a campaign of printed propaganda based upon disparagement of the Union and a comparison of the policies and practices of General Shoe Corporation with shoe factories operating under contracts with labor organizations . To illus- trate the alleged superiority of wages, hours , and other working conditions at Respondent's plant, all supervisors were furnished with the following list of questions and answers for presentation to employees : COMPARISON WITH NINE UNION CONTRACTS IN NINE SHOE COMPANIES General Union Question Shoe Plants 1. Is there a company pension plan for all em- Yes 9 No ployees? 2. Is an employee injured on the job guaranteed Yes 9 No 90% of his average weekly wage? 3. Do employees have benefit of Grievance pro- Yes 9 Yes cedures? 4. Do employees get one-week and two-week va- 1 Yes J8 Yes cations? l1 No 5. Do 10 year employees get extra vacation pay?-- Yes 9 No 6. Can employees accumulate 4 weeks vacation ? Yes 9 No time or take pay instead of vacation? 7. Does each employee choose the time he will go Yes 9 No on vacation? 8. In the last year, did they get 6 holidays with 6 Yes pay? Yes 3 No 9. Do they get time and one-half plus 8 hours holi- 1 Yes 9 No day pay if they work on a holiday? 10. When Piece-work employee is promoted, is he guaranteed 90% of his former earnings until Yes 3 Yes he is able to equal this on new job? 6 No 11. When employee is asked to help out temporarily 6 on on a lower-rated job, is he guaranteed against Yes 3 No losing money on that job? 12. If employee reports and there is no work , does 1 Yes he get 4 hours pay regardless ? Yes 18 No 13. Does seniority rule in matter of promotion, j8 Yes transfers and layoffs where ability to perform Yes 1 No - work, dependability and attendance equals? llll 14. Do employees get daily overtime?------------- Yes 9 Yes 15. Does Company guarantee employee an equal Yes - 9 No job if some Machine Invention replaces his old job? 16. Do employees get pay for jury service?-------- Yes 2 Yes- ?No '780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Union Question Shoe Plants 17. Are deductions taken from employees' pay l N r7 Yes envelopes for payment of Union dues? J o 2 No 18. Are employees forced to pay Union dues as long 5 Yes as they work for the Company? No 14 No 19. Is there a hospitalization and surgical plan for Yes 9 No employees and their families? 20. Are employees protected in case of roll-backs, by Yes 9 No Security Training? 21. Do employees save money through Commissary Yes 9 No buying? Supervisors of the Respondent conducted a systematic interview of employees throughout the months of July, August, and September, 1950, until all were informed concerning the company policies, practices, and benefits. Some were conducted in the plant offices, some at the workers' machines, and some at the desks of department managers. They followed a general pattern. The inter- viewer usually inquired whether the employee had any problems with which the Company could help him, whether he understood all the company policies, and why he thought a union would be beneficial. He was asked if there were any grievances against the Company, and was encouraged to ask questions. In reply to rumors that the plant might close down if the Union came in, the interviewers explained generally that the Company had no intention of closing down as long as it could operate at a profit, but could make no guarantee as to what might happen in the future for business reasons. Mr. Evans himself stated that some plants of the Douglas Shoe Company had closed down after unions had been -organized there' Henry Wills, assistant plant superintendent, talked to practically all of the employees, either at their machines or in his office. He had been instructed not to threaten or promise the employees anything, but thought he had a right to talk and ask questions. The Respondent wanted to know what was causing the trouble. He usually inquired what the employees thought about the Union coming in, how they thought a union could help them, but never asked whether they had joined the Union. He was trying in general to find out how the people felt about it. The employees themselves usually inquired what is this going to cause in our plant, how will the management react to it, will they close the plant, and what effect will it have on me if I don't join the Union? He told them that so far as he knew, the plant opened to stay open and would not close down, union or no union, as long as it could make money, but that he did not know because he only worked there the same as anyone else.' Leon Avaritt, plant personnel director, talked to practically every employee in the plant concerning the Union. He asked them what they thought a union could give them which they did not have already ; and tried to show them that the Company's present way of operating was better than if they had a union. Sometimes he approached the employees, and at other times they came to him to ask questions. With respect to a rumor that the plant might close down, he, told them that he could not see any reason for it, and did not think so.' Pearl B. Jordan, an employee in the fitting department, credibly testified that Henry Wills came to her machine and said, "Pearl, what is all this talk I hear 7 See testimony of Everett Evans, plant superintendent. a See testimony of Henry Wills. • See testimony of Leon Avaritt. GENERAL SHOE CORPORATION 781 going around about the Union? What is it all about?" In the ensuing conver- sation, he inquired whether the workers were dissatisfied , and "What do you think the Union can offer that we don't give you?" Shortly after the foregoing conversation, George Langstaff, assistant depart- ment manager, approached and sat down in the presence of Lucille Mitchell and Nell Fentress. He asked Fentress whether Pearl had been trying to talk her into joining the Union. He said it was a serious problem to him, and would like to know why the people were dissatisfied and would not talk about it. Then he walked away. Shortly thereafter, Henry Wills returned to Pearl B. Jordan and stated that he had heard that she was really strong for the Union, and that he could not see why they thought the Union could benefit them. Upon her profession not to know much about it but was trying to find out all she could, he remarked that he did not blame her for that, and that he was trying to do the same thing. Leon Haynie, an employee in the bottoming department, credibly testified that he was frequently engaged in conversation with Sam Sizemore, the department manager, during the union campaign. Sizemore inquired what he thought about the Union, and called attention to the forthcoming election but did not ask how he expected to vote. With reference to a rumor that the plant might close down, Sizemore said that a company as large as the Respondent could close one plant, but he did not think they would do it. Mrs. James (Martha) Hinkle, an employee in the fitting department, credibly testified that during the union campaign, Henry Wills approached her on the job and said "Well, Martha, they tell me you are for the Union?" She laughed and said "Yes"; and did not remember anything else he said during the con- versation. James Hinkle, an employee in the making department, credibly testified that Levi Smith, department manager, called him to his desk and said "James, they tell me you are for the Union?" Hinkle admitted it, and said "Well, I don't know how you know that, because I haven't talked to anybody about it." A conversation ensued in which Smith talked about the advantages they had for which a union was not needed, such as the comissary, safety, and grievance committees, etc. James R. Powers, an employee in the making department, credibly testified that he- was also approached by his department manager, Levi Smith, and asked what the trouble was and why the people wanted a union. Powers told him that it was because of low wages and bad working conditions. Then he was called to the office of the plant superintendent and interviewed in the presence of the de- partment manager and the plant personnel director. At that time the plant superintendent (Everett Evans) explained to him the benefits and privileges offered at Respondent's plant, and compared them with those received by em- ployees at plants operating under union contracts. L. J. Mayes, an employee in the lasting department, credibly testified that he was called to the personnel office along with four or five other employees. Plant Superintendent Evans did the talking, and was trying to smooth out the troubles, but he could not remember what was said. On another occasion, Department Manager Joe McBee asked him what the row was about and why everybody was so dissatisfied. He wanted to know what could be done to satisfy them. At that time, McBee had in his hand a slip of paper with names on it, and said he was going around to see everybody in his department, trying to find out their troubles. Vernon Ewing Johnson, an employee in the cutting department, credibly testi- fied that Department Manager Huel Cunningham came to him on the job and 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inquired what the trouble was and why they wanted a union. He told Cun- ningham that it was because of prices and working conditions. He later had conversations with the plant superintendent and the district superintendent, both of whom agreed to look into the matter and try to do something about it. Wendell Sadler, an employee in the lasting department, credibly testified that he was interviewed by Plant Superintendent Evans in his office. Evans showed him a written comparison of conditions at the General Shoe plant with those at nine unionized plants. Evans said that the union at the Douglas Shoe Com- pany had put it too high and they went broke. Sadler was also called to the desk of C. W. Prince, department manager. Prince told him the Respondent fought unions to keep its employees from paying dues, and asked why they should pay union dues when somebody else was already paying? William Bell, an employee in the making department, credibly testified that the department manager, Levi Smith, called a group of employees to his desk and inquired if there was any trouble. Smith asked Bell what he thought about the voting and the election, but did not inquire how he expected to vote. Among other things Smith inquired what the employees disliked there, and whether there was any improvement he-could make. He expressed his opinion that the plant would close down if the Union came in; that the plant had not been going very long, was losing money, and if anything interfered too much that they might close down. Roy Skeggs, an employee in the making department, credibly testified that the department manager, Levi Smith, came to him at his machine with a piece of paper in his hand and said, "I am not going to ask you whether you are for a union or not, but they feel that the trouble we are having is in this department. I would like to have you all's cooperation finding out what it is, and stopping it " He said he felt if all the boys in the department would work with him, he figured he could get everything straightened out. Skeggs was also called to the office of the plant superintendent in the presence of the department manager and the plant personnel director. There he was questioned by Mr. Evans about whether he was earning his pay and how much work he was doing. Then the subject of the Union was brought up Evans mentioned that Skeggs' family were union people He said that he was not going to ask Skeggs how he stood in the election campaign, but knew that he would be level-headed about anything he did. On another occasion Skeggs went to the packing room to have a shoe repaired. There, the department manager, Leonard Todd, jokingly remarked to the girl fixing the shoe "I wouldn't fix that shoe for him. He is one of those union men." Skeggs replied "Yeah-How about you signing a card?" On November 2, 1950, the plant superintendent sent out the following letter to employees : DEAR FRIEND : We have received a notice from the National Labor Relations Board that an election will be held in our plant within thirty days The exact date has not been set. The election will be held to determine whether you want to continue your present relationship with management or whether you want to pay a group of outside union organizers to represent you. We have been expecting this notice for some time and, following our practice of keeping you informed, I am writing you immediately This very union, the Boot and Shoe Workers' Union, has tried several times in the past to get into some of our other plants. Each time they have failed. They failed because the employees of these plants knew that General Shoe was already paying better wages and providing greater benefits than GENERAL SHOE CORPORATION 783 plants whose employees were represented by this outfit. We know that you at this Ninth Avenue Plant do not want someone representing you who has a record of misrepresenting facts. Before long some representative from this union will be around trying to stir up trouble. This is the way they always do. They have so little to talk about that it is necessary for them to start rumors and untruths. You will hear these things. We want you to question them and question us. I am ready to stand on true facts. We want to answer your questions. Let's get set for their wild tales. They have nothing else to say. At election time it will be your chance to let these union fellows know that you believe in your company, its leaders, its policies and practices. When the time comes-vote ! Yours very truly, Superintendent. On November 9 and 10, 1950, the Respondent distributed printed leaflets en- titled "FACTS and FICTION" in which alleged fictitious statements were an- swered by an allegation of fact, as follows : THE TRUE FACTS FROM YOUR COMPANY ANSWERING FICTITIOUS STORIES CIRCULATED BY UNION ORGANIZERS Fiction : The comparison with nine contracts is not true. General Shoe will not name these companies. Fact: The contracts with these nine union shoe companies are on file in our office. Every item has been checked against the contract. Shannon would like to have the names of these companies to send to his boss in St. Louis. "Sorry" but we can't accommodate him. You will continue to receive these facts. Shannon will ask for a lot of things he will not get. Fiction : The Union will produce check stubs to show the high earnings of some union shoe workers. Fact : This is an old trick. The union has done this in every drive. We can get a check stub that will show most anything. Some of the largest unionized shoe plants pay low wages. Some companies use the union as a tool to trade for lower wages. Some of the highest paying shoe plants do not have a union. Fiction: If you had a union-the company would have to settle the union way and could not close down the plant for any reason. Fact: What is in the union mind? General Shoe did not open plants to close them down. But when a union causes strikes and shutdowns, then the union is closing a plant not the company. EVERETT EVANS, Superintendent. 11-10-50 Fiction : A mere mention of the Union has caused the Company to raise wages. Fact: The Union had absolutely nothing to do with any wage increase The general wage increase was given to all General Shoe employees. Most ,of our employees have not given a thought to the Union. Such pay adjust- ments are made according to economic conditions. The Union cannot ,control these conditions. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fiction : The Union has caused the Company to improve working conditions at Ninth Avenue Plant. Fact : We are always trying to improve working conditions. We will continue to improve these conditions. We still welcome your recommenda- tions. I do not think it takes a union organizer to get you to make sug- gestions. You made them before you ever heard from these fellows from Missouri. I certainly hope we have improved'some conditions since opening this plant. I hope we can continue to improve. Fiction : The Union caused Ninth Avenue to increase their plant entertainments. Fact : Plant entertainment is a part of General Shoe. We have always encouraged dances and plant socials. It is silly for any Union represen- tative to think that you can believe he is responsible. Those socials are going on in all plants. Sincerely, Evnanrr EVANS. During the union campaign the Respondent distributed a printed pamphlet entitled "the bare facts" consisting of disparaging statements and cartoons derogatory to the Union. In conclusion the following statement appeared therein : THE DECISION Is YOURS To MAKE A "YES" vote will mean that you endorse the Boot and Shoe Workers Union, AFL. It will mean that you approve and are willing to support its program of picketing, bickering and strikes. It will mean that you are willing to surrender the control of your job to this union, and to give it your financial support as the price of working at General Shoe Corporation. A "NO" vote will mean that you do NOT want the Boot and Shoe Workers Union, AFL, in your plant, and that you want to keep your free and inde- pendent status as a General Shoe employee. It will mean that you are opposed to outside union bosses, and that you prefer to continue the man-to- man relationships under which we have been working together for so many years. The outcome of the election will be determined by those who vote. The only way you can keep a union out of your plant is to vote NO. We ask that you weigh all the facts before you mark your ballot. No one but you will ever know how you vote. As always we rest the matter with your good judgment. Plant Superintendent, Division Superintendent, Vice President in Charge of Manufacturing. On November 16,1950, division superintendent, Eli White, directed the following letter to employees : To Our Ninth Avenue Employees: Yesterday Walter Shannon, one of the union organizers, gave you the first of a series of handbills which you may expect to receive for the next two weeks. It was typical union propaganda. We told you in a letter November 2nd that pretty soon a union organizer would be around trying to stir up rumors and untruths. He certainly didn't let us down. GENERAL SHOE CORPORATION 785, If Shannon is the fellow getting this information, he is being crossed up- at both ends. The pay problem is a problem that must be worked out as our plant grows soundly. The union can only reduce your earnings by their take They can not offer a solution to any pay problem. Our employees have cooperated in working out certain conditions. You have asked for adjustments and corrections. These corrections have been made whenever possible and will continue to be made when found wrong. The Boot and Shoe Workers are talking big about pay. We will give $100.00 to Shannon, or any other union "stooge", if he can prove that the average- wage of major operations in his Boot and Shoe plants is twice that of the major operators in our Ninth Avenue Plant. Shannon says we will not allow you to express your free choice in the coming election. This sounds funny coming from him as he asks the company to let the Boot & Shoe Worker's Union represent you without a free choice.. This we refuse to do. He wanted to put a -union in this plant without you even having a chance to vote. "Mr. Big" says the Labor Board has nullified three elections in our plants. This is not true. These elections are matters of public record. What are- the facts? After each election, in which they lost by a big majority, the union yelled unfair labor practice. This is their standard routine. They yelled unfair labor practice to save their face and their own job. The union says if you vote the Boot & Shoe Workers in, then General Shoe- is required by law to bargain in good faith. We have never needed a law to- make us act in good faith. Neither will we allow any union hiding behind any law make us act in bad faith. We will not sell out our employees to any union-Boot & Shoe Worker's union or any other. There is one true statement in that circular. We should give them credit- "When you cast your ballot on election day, No One Will Ever Know How You Voted." That union statement is true. ELI WHITE, Division Superintendent. On November 17, another letter from the division superintendent was sent out: NOVEMBER 17, 1950 To Our Ninth Avenue Employees: We quote from the union's circular of Wednesday, November 15. "COME TO THE MEETING THURSDAY NIGHT NOVEMBER 16, AT THE LABOR TEMPLE, 214 8TH AVENUE NORTH." We know of two employees who went but couldn't get in. Shannon told them they couldn't come in because they were not eligible to vote. The employees told us about it. We checked to be sure and again we find that Shannon lied. The union knew they could vote because the union has the same information we have from the N. L. R. B. This is part of the union's closed door policy. This is part of the union's way of giving the "brush off" to certain people. This is-their democratic way. This "brush off" is mild to what it will be if they get the hold they want. Why isn't every employee in this plant (who wants to) allowed to attend these union meetings? Is it because the union is afraid to have questions asked? 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Why have some employees said they would like to attend but are afraia to? Is it because the union can't win on the merits of the case and are now threatening bodily harm to the ones who don't go along? Why does the union organizer refuse to put one single promise in writing? Is it because the union is afraid to? Is it because the union can't back up these promises? Is it because the union produces nothing but talk and hot air? If they mean what they say, make them put it in writing and back it up. Sincerely yours, General Superintendent On November 20, 1950, Plant Superintendent Everett Evans sent out the fol- lowing letter: NOVEMBER 20, 1950 To Our Ninth Avenue Employees: The Union failed to show up at the meeting Saturday morning . Right off the bat, the Union did not live up to their word . This is a little thing but is a good sign of how they do business. It may have been that one Union man could not have come , but I am sure they could have sent another. This meeting was arranged by the N. L. R. B. representative and lie con- tacted both the Union and the Company . Everyone was there except the Union man. The purpose of the meeting was to set the date and make ar- rangements for the election which the Union had asked for . Maybe they don't want the election or perhaps they think it's time to get out the Old Union standby and yell "Unfair labor practices." I do not know when or if there will be an election We are ready for you to express your feelings ; apparently they are not We are sorry the Union backed out on the meeting. Just as soon as we het any further word on the election, we will notify you I appreciate your patience and cooperation. Yours very truly, Upon receipt of notice that the Union had withdrawn its petition for an elec- tion, the Respondent wrote the following letter to employees : To Our Ninth Avenue Employees: A few hours ago we received a letter from the National Labor Relations Board saying the Boot and Shoe Workers Union had withdrawn their peti- tion for an election. The entire management of the company appreciates your fine spirit of loyalty. We feel it was this spirit of loyalty that caused the union or- ganizers to give up and head back to St Louis. H. N. CARMICHAEL, D. The issue and contentions There is little or no dispute as to the facts in this case The foregoing find- ings of fact are based upon the uncontradicted testimony of all the witnesses and exhibits offered in e^ idence. Counsel for the Respondent contends that the campaign for self-organization among its employees arose concurrently with a wave of dissatisfaction which swept through its plant about July 1950; and that it justifiably sought to deter- mine the cause of dissatisfaction by asking the employees why they were dis- satisfied, what was wrong, and what brought about this desire to have a union. GENERAL SHOE CORPORATION 787 In conducting such an inquiry, the Respondent contends that it adopted a method or plan to interview all of its employees without threats of reprisal or force or promise of benefit within the protection of the free speech amendment (Section 8 (c)) of the Act, and in accordance with the prerogative of management. It points to the fact that there is no background of animosity towards the Union, no proof.of promises or benefits by it to employees, and says there is no evidence to, support the allegations of unfair labor practices in the complaint. Counsel for the General Counsel on the contrary contends that the Respondent adroitly engaged in a campaign of interrogation of its employees, fostered a threat of closing down the plant by failing to affirmatively deny rumors to that- effect, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The sole issue presented is a question of law whether Respondent's course of conduct in whole or part constituted interference, restraint, or coercion of employees in,violation of Section 8 (a) (1) of the Act. - Concluding Findings This case presents a technique adopted by the Respondent calculated and intended to induce its employees to refrain from self-organization and the selection of an exclusive bargaining representative. It first appeared under like conditions in the case of General Shoe Corporation, 77 NLRB 124 (1948), wherein the Board set aside a representation election because the Respondent created an atmosphere that rendered improbable a free choice by employees of a bargaining agent, even though its course of conduct may not have constituted an unfair labor practice because of protection afforded by the free speech amend- ment, Section 8 (c) of the Act. Again under similar conditions in the case of General Shoe Corporation (Marrnan Bag Plant), 97 NLRB 499 (1951), the Board sustained objections of the petitioner and set aside the election on the grounds that the employer's conduct interfered with the employees' exercise of a free choice of a bargaining representative. In the present case the Respondent likewise engaged in a course of conduct which rendered improbable a free choice of employees of a bargaining repre- sentative in Case No. 10-RC-1021, and because of such conduct the Union withdrew its representation petition. The determination must now be made whether the course of conduct engaged in by the Respondent in the months of July through November 1950, either in whole or part, constituted unfair labor - practices in violation of Section 8 (a) (1) of the Act. It is alleged in the complaint that the Respondent engaged in unfair labor practices by (1) interrogation of employees concerning their union activities, (2) threats of economic reprisal, including shutdown of the plant, and (3) promises of benefits for refraining from membership in the Union. The burden is on the General Counsel to prove each allegation by a preponderance of the evidence. Upon careful consideration of the entire record, I am convinced and constrained to find that all three of the aforesaid allegations are supported by substantial evidence, and a preponderance thereof. The record is saturated with evidence of interrogation of employees con- cerning their union activities, some of which is so intermingled with other utter- ances of the Respondent's supervisors that it is difficult to draw a distinction between what is free speech and what is interrogation. I find specific instances of interrogation by supervisors of the Respondent during the period from July through November 1950, as follows : 227260-53-vol 100--51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Division Superintendent White's questioning Roy Hill as to how he felt about the Union ; whether he had signed a union card ; and why he thought that would help him' (b) Division Personnel Director Hooper's questioning Roy Hill as to what was going on about this union activity. (c) Division Personnel Director Binkley's questioning Roy Hill whether he still felt the same way as he did about the Union, whether the Union was paying him for his organization efforts, how far he was going to carry his friends, had his buddies run off and left him, and whether he was about ready to quit and give up his efforts to organize the employees. (d) Assistant Plant Superintendent Wills questioning Pearl B Jordan as to what is all this talk I hear going around about the Union, what is it all about, and what do you think the Union can offer that we don't give you, and his inquiry directed to Mrs. James Hinkle-"Well, Martha, they tell me you are for the Union?" (e) Assistant Department Manager Langstaff's questioning Nell Fentress whether Pearl had been trying to talk her into joining the Union. (f) Department Manager Sizemore's questioning Leon Haynie as to what he thought about the Union. (g) Department Manager Smith's questioning James Hinkle by saying, "James, they tell me you are for the Union?"; his inquiry to James R Powers as to why the people wanted a union; and his questioning William Bell as to what he thought about the forthcoming election. (h) Department Manager Cunningham's questioning Vernon Ewing Johnson why they wanted a union. In addition to the aforesaid specific instances of interrogation, it is noted that in the systematic interview of employees, Assistant Plant Superintendent Wills and Plant Personnel Director Avaritt test;fied in effect that the Respondent wanted to know what was causing the trouble and dissatisfaction, and they adopted the method of inquiring of employees how they felt about the Union coming in, and what they thought the Union could do for them that was not already being done by the Respondent. Such inquiries naturally called for an explanation from employees as to why they were engaged or not engaged in organizational activities. In determining whether an employer's conduct amounts to interference, re- straint, or coercion within the meaning of Section 8 (a) (1) of the Act, the Board is guided not by the employer's intent or the effectiveness of his actions, but by whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed employees by the Act.6 The Board has rejected the contention that interrogation is protected by Section 8 (c) of the Act, as amended. Interrogation cannot be considered an expression of "views, arguments, or opinion" within the meaning of that section The purpose of that section is to permit an employer to express his views, not to license him to extract those of his employees. The language and the legislative history of Section 8 (a) (1) show that Congress intended the terms "interfere," "restrain," and "coerce" to have separate and distinct meanings. Congress clearly intended to proscribe any employer activity which would tend to limit employees in the exercise of their statutory rights. Inherent in the very nature of the rights guaranteed in Section 7 of the Act is the concomitant right of privacy in their enjoyment, and full freedom from intermeddling or intrusion by the employer.' 6 The fact that Hill was warned that he was not required to answer questions did not dissipate the coercive effect of his interrogation. See Joy Silk Mills, Inc., 85 NLRB 1263. See Fifteenth Annual Report (1950), p. 96. Standard-Coosa-Thatcher Co., 85 NLRB 1358. - GENERAL SHOE CORPORATION 789, While interviewing Roy Hill in the plant personnel office, Division Personnel Director Binkley told him that he had a "lot of opportunity" with the Company, but would not elaborate on them because the union organizer might hear about it. Binkley promised to help Hill all he could if he would get out of the Union. He suggested that Hill get out and still stay clear with the Company, and get along fine, pointing out at the same time that another employee had "stuck his neck out" when the Teamsters Union was trying to organize shipping department employees of the Respondent. I am constrained to find that the utterances of Binkley contained implied threats of economic reprisal if Hill continued his, affiliation with the Union, and promises of benefit if he would abandon his union activities." It is significant that Hill was the initiator and leader of the union activity. During the organizational campai;n a persistent rumor arose that the plant might close down if the Union came in. There is no substantial evidence that such a rumor was initiated or fostered by the Respondent. It is contended by General Counsel that it was a legal duty of the Respondent to formally deny such a possibility or intention. Under the circumstances here, I do not agree, in the absence of any threats to that effect by any supervisor or official of the Company. All statements made by supervisors with respect thereto were in reply to inquiries from the employees. Plant Superintendent Evans stated that the Company had no intention of closing down as long as it could operate at a profit, but mentioned that Douglas Shoe Company went broke and closed some of its plants after unions were organized there. Assistant Superintendent Wills stated that the plant was opened to stay open and would not close down,.union, or no union, as long as it could make money ; but that he did not know, because he only worked there the same as anyone else Plant Personnel Director Avaritt stated that he could see no reason why the plant should close. Department Manager Sizemore said that a company as large as Respondent could close one plant, but lie did not think they would do so. Department Manager Smith said that the plant had not been going very long, was losing money, and if anything interfered too much that they could close down, but that he had no right to say so. Inasmuch as the foregoing statements of supervisors were merely expressions of personal opinion and not of company policy, I cannot find therein any threats of economic reprisal. I find, therefore, that those statemnts did not constitute interference, restraint, or coercion of employees in the exercise of rights guaranteed in the Act. The record shows .that the Respondent published in writing a list of questions and answers comparing conditions at its plant with those at nine unionized plants. It wrote letters to employees, and distributed leaflets and pamphlets disparaging the Union. The written propaganda published did not contain threats of economic reprisal or force or promises of benefits. I therefore find that the Respondent did not thereby violate the Act, and that it constituted free speech within the meaning of Section 8 (c). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. 8 See Beatrice Foods Co., 183 F 2d 726; 84 NLRB 512. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY It has been found that the Respondent has engaged in a course of conduct, certain elements of which constitute unfair labor practices, and other elements do not. The undersigned Trial Examiner will therefore recommend that it cease and desist from the conduct found to be unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act, as amended. It has been found that the Respondent interrogated its employees concerning their organizational activities and affiliations with the Union, thereby dis- couraging membership in a labor organization and otherwise interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. It has also been found that the Respondent interfered with, restrained, and coerced its employees by threatening Roy Hill with loss of opportunities for advancement in his employment because of his activities on behalf of the Union, and promising him increased opportunities and favor with his employer if he would abandon his concerted activities with other employees and resign from the Union. It will therefore be recommended that the Respondent cease and desist from the conduct herein found to be a violation of the Act, and from in any like man- ner infringing upon the rights guaranteed to its employees in Section 7 of the Act, as amended. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Boot & Shoe Workers' Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act : (a) I3v interrogating its employees concerning their affiliations with and membership in the Union and other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. (b) By threatening its employee, Roy Hill, with loss of opportunities for advancement in his employment by reason of his union activities. (c) By promising to its employee, Roy Hill, aid and assistance and the con- tinuing favor of his employer as an inducement to discontinue his efforts to organi, a his fellow employees. - 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices by threatening to close down its plant if the Union came in or by distributing letters, leaflets, and pamph'ets disparaging the Union. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act of 1947, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union affiliations, activities, or sympathies. HAWLEY BROADCASTING COMPANY 791 WE WILL NOT threaten our employees with the loss of opportunity of ad- vancement in their employment or with other economic reprisal by reason of activities on behalf of any labor organization. WE wa.L NOT promise aid or benefit of any kind to our employees' as an inducement to refrain from activities on behalf of any labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or co- erce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist BOOT & SHOE WORKERS ' UNION, 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, or 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 by Section 8 (a) (3) of the amended Act. All our employees are free to become or remain members of the above-named union or any other labor organization. GENERAL SHOE CORPORATION, Dated------------------------------ By-------------------- Employer. ------------ (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. HAWLEY BROADCASTING COMPANY and AMERICAN FEDERATION OF RADIO ARTISTS, A. F. or L. Case No. 4-CA-512. August 26, 1952 Decision and Order On January 7, 1952, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8 (a) (1) of the Act, as to which he recommended that it cease and desist therefrom and take affirmative action as set forth in the copy of the Intermediate Report attached hereto, but finding that the Respondent had not violated Section 8 (a) (5) of the Act as alleged in the complaint. Thereafter the Gen- eral Counsel filed exceptions to the Intermediate Report and a sup- porting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Members Houston, Mur- dock, and Styles]. 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 In- 100 NLRB No. 127.