The Lux Clock Manufacturing Co., Inc.

1194 DECISIONS OE-NATIONAL LABOR RELATIONS BOARD 3. All employees of Respondent, excluding office clerical employees, -guards, su- ,pervisors, and professional employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4, International Woodworkers of America , Local 5-5, CIO, was on September 27, 1954, and at all times thereafter has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargain- ing within the meaning of Section 9 (a) of the Act. 5. By refusing on September 27, 1954, and at all times thereafter to bargain col-, -lectively with the Union as the exclusive representative of the employees in the afore- said appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering -with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (1) of theAct. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 8. Respondent has not discriminated with respect to the hire and tenure of employ- ment of Allen Lowe. [Recommendations omitted from publication.] The Lux Clock Manufacturing Company, , Inc. and International Association of Machinists, AFL. Cases Nos. 10-CA.-2069 and 10-IBC-f818. August 26, 1955 DECISION AND ORDER STATEMENT OF THE CASES Pursuant to a Decision and Direction of Election in Case No. 1O-RC-2818,1 an election was conducted among certain of the Em- ployer's employees on September 17, 1954, in which a majority of the employees voted not to be represented by the Petitioner. On Sep- tember 21, 1954, the Petitioner timely filed objections to the election based on an unfair labor practice charge it filed at the same time. Upon the charge, as amended by the Petitioner (hereafter called the Union), the General Counsel of the National Labor Relations Board (herein called respectively the General Counsel and the Board), by the Regional Director for the Tenth Region, issued a complaint in Case No. 10-CA-2069, dated November 8, 1954, against the Em- ployer , (hereafter called the Respondent), alleging that the Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. The complaint alleged, in substance, that the Respondent, by and through its president, Frederick Lux, on or about September 15, 1954, unlawfully threatened its employees that a plant expansion would be canceled and the plant closed if they persisted in their union and 3 Not reported in printed volumes of Board-Decisions and Orders. 113 NLRB No. 117. THE LUX CLOCK MANUFACTURING COMPANY, INC. 1195 concerted activity, and unlawfully promised its employees benefits if they ceased such activity. The Respondent filed an answer in Case No. 10-CA-2069, in sub- stance, admitting the jurisdictional allegations of the complaint, but denying that it had engaged in any unfair labor practices. Thereafter the two cases were consolidated and all parties entered into a stipulation setting forth an agreed statement of facts. The stipulation provides that the parties thereby waive the right to a hearing, Intermediate Report of a Trial Examiner, the making of proposed findings of fact, conclusions of law, and issuance of a pro- posed order by the Board, but reserve the right to file briefs and present oral argument before the Board. The stipulation further provides that the charge, amended charges, complaint, notice of hear- ing, and order indefinitely postponing hearing in Case No. 10-CA- 2069, the report on election, objections to election, and recommendation to the Board, and the Board's order directing hearing in Case No. 10-RC-2818, and the order consolidating Cases Nos. 10-CA-2069 and 10-RC-2818 shall constitute the entire record herein and that, upon such record, the Board may issue a Decision and Order as though after hearing and Intermediate Report. On February 15, 1955, the Board approved the stipulation, made it a part of the record herein, and transferred the cases to the Board. Thereafter the Respondent, the Union, and the General Counsel filed briefs and the Respondent filed a reply brief. 'Upon the basis of the aforesaid stipulation and the entire record in the cases, and upon full consideration of the briefs,2 the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Lux Clock Manufacturing Company, Inc., is a corporation in- corporated under the laws of the State of Connecticut with its principal office and place of business located at Waterbury, Connecticut, and with plants located in the States of Connecticut and Tennessee, includ- ing the one at Lebanon, Tennessee, involved herein, where it is engaged in the manufacture of alarm clocks. During the 12-month period ending October 1, 1954, which period is representative of all times material herein, the Respondent sold finished products valued in excess of $100,000 which were shipped from its Lebanon, Tennessee, plant to points outside the State of Tennessee. We find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction over the Respondent 3 The Respondent's request for oral argument is denied because, in the Board's opinion, the record and the briefs adequately present the issues and the positions of the parties. 3 Jonesboro Grain Drying Cooperative, 110 NLRB 481. 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that the Union is a labor organiza- tion within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION On September 15, 1954, the Respondent assembled the employees of its Lebanon, Tennessee, plant and, through its president, Frederick Lux, addressed them concerning the Union and the Board election to be held on September 17, 1954. The General Counsel and the Union contend that Lux's address and subsequent remarks contained threats to close the plant if the Union won the election and a promise that certain benefits, withheld because of the Union's organizational activity, would be granted if the Union lost the election-all in violation of Section 8 (a) (1) of the Act. They also contend that the alleged threats and promises prevented a free election, and request that it be set aside and a new election ordered. The Respondent argues, in essence, that the speech, including the re- lated remarks, was a presentation of facts intended to correct erroneous information given the employees by the Union, was a good-faith ex- pression of the Respondent's views on unions and their general impact upon the country's economy, and was, in its entirety, a representation of the Respondent's opinions and attitudes within the meaning of Sec- tion 8 (c) containing no unlawful threats or promises. The issue for decision is whether Lux's speech and related remarks were of such nature, in the context of all the facts involved herein, as to impose involuntary restraint on the will of the employees and so prevented them from making a free choice in the election or forced them to act contrary to their desires with respect to the organization of the Union. In the area of speechmaking the Act imposes a strict limitation upon interference with the individual independence of an employer if his remarks have no coercive or promissory thrust. 4 We believe that the dividing line between an employer's exercise of its freedom of speech right and those words and conduct intended to frustrate the will of employees should be determined by viewing the entirety of an employer's statements and actions. 5 We deem such a review partic- 4 Section 8 (c) of the Act provides : The expressing of any views , argument, of opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evi- dence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. 5N. L. R. B. v. Enid Coy-operative Creamery Association , 169 F. 2d 986 ( C. A. 10), wherein the court held "an employer . . . surely may tell an employee that . it would not be beneficial for him to join a union if he makes it plain that such employee has a free choice without fear of reprisal." N. L. R. B. v. Western Kentucky Coal Com- THE LUX CLOCK MANUFACTURING COMPANY, INC. 1197 ularly essential where, as here, the Employer's conduct and statements are confined' in time and subject matter to a single incident. In this case Lux's speech lends itself easily to summarization. The Respondent explained its concept of the nature and operations of labor unions and expressed its general philosophy that unions have a stulti- fying effect upon industry. More particularly, the Respondent ex- pressed the view that a union, as representative of its employees, would be a blight on the growth and expansion of the Respondent's plant by preventing effectuation of its individualized plan for operating the plant-a project which did not contemplate a union representative for the employees. The Respondent requested the employees to give its plan, which had been operating for about 1 year, the opportunity to continue, pointed out some of the benefits of the project that the employees had already realized and would receive in the future, and advised that some benefits, to which the workers were entitled, had been withheld because continued recognition of employee achievement would have been unlawful during the Union's organizational cam- paign. Lux explained that increased benefits would result only from the employees' own efforts and could not be "squeezed" out of the Re- spondent by the Union if adverse business conditions continued. The Respondent also explained that it would be obliged to bargain with a union that represented its employees, but stated that it was not obliged to sign a specific contract with a union if economic circum- stances ruled against such an agreement. Lux expressed a belief that enlightened management and employees could work more coopera- tively absent outside interference. He told the employees that a worker who had signed a union designation card was not thereby obligated to vote for the Union in the Board election, and that, in Tennessee, an employee's job did not depend upon his membership in a union . In conclusion, the Respondent requested every employee to vote as he felt he should, whether for or against the Union. Where, as in this case, there is absolutely no evidence of any other Employer conduct pertaining to the employees' union activity, the ex- pression of such views involves no threat or promise and, manifestly, falls within the, area of permissible free speech established in numer- ous Board and court decisions. For example, the court of appeals has, in a similar case, 6 stated : We think the case of N. L. B. B. v. Virginia Electric ct Power Co., 314 U. S. 469 ... supports the view that an employer may dis- seminate facts within the area of dispute, may even express his opinion of the merits of the controversy even though it involves pany, 152 F. 2d 198 ( C. A. 6), wherein the court reversed a Board finding that portions of a statement made by the employer violated Section 8 (1), because the record before the court did not contain the employer 's entire statement. 6 In N. L. R. B. v. J. L. Brandeis & Sons, 145 F . 2d 556 (C A. 8) 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organizations; may indicate a preference for individual dealings with employees, may state his policy with reference to labor matters, and may express hostility to a union or the repre- sentatives. Indeed, the General Counsel and the Union do not claim that Lux's speech, as an integrated whole, violated Section 8 (a) (1). They ask instead that the Board find certain portions of Lux's remarks unlaw- fully threatened the Respondent's employees and promised them bene- fits. Of necessity our consideration of the speech as an entirety re- jects such a disjointed approach to the issue posed for decision. How- ever, even the portions of the speech taken out of context, as relied upon by the General Counsel and the Union, are within the bounds of the Respondent's freedom of speech rights. The General Counsel would have the Board find that five excerpts from Lux's remarks vio- lated Section 8 (a) (1). The Union agrees with the General Counsel that the first 5 excerpts are unlawful and relies upon 3 others. The excerpts are these : ITEM 1: Up in New England we used to have some wonderful chestnut trees. We used to have around our typical New England green a lot of elm trees. We also used to have up in New England a lot of textile industries. The chestnuts are all gone, the elms are all going, and the textile industry has also moved out of that area, due to what might be called a blight. There isn't much you can do with a chestnut tree when it's got the blight except to cut it down, probably you can use the lumber. There's nothing you can do with an elm tree-they won't even let you use it for kindling wood-because that blight will spread to other trees. You can't do very much with any factory that is afflicted with a blight, and the factories up in New England have all been-particularly the textile factories-have been afflicted with the blight of unionism. I'm talking now about the long range view and what happens to companies. ITEM 2: All you get for it is ,a blight on your particular company. ITEM 3: Further, if you get the union in, our system will not work, and you will never have a chance to verify that what I'm telling you is true. So, I ask you all as intelligent people, not to blight the growth of this company. When you vote next Friday, vote for no union. ITEM 4: Question : Mr. Lux, is it true that if the union wins the election, the factory will shut down? F. Lux : Unfortunately, if I made the proper answer to that thing-no, I'm sorry, I cannot make any comments on that par- ticular question-it's against the law. THE LUX CLOCK MANUFACTURING COMPANY, INC. 1199 ITEM 5: You folks have attained our required schedule-the schedule we planned for. You folks have actually made, for the last several days, 4M clocks per day. A performance like that, and particularly when it occurs on the anniversary of our starting this place, requires some recognition. I'm sorry to have to tell you that we cannot recognize it, because your union is in the way. It's against the law for. us to make any recognition of such things while a union is organizing a plant. You would have had your recognition earlier if you didn't have this organization going on. ITEM 6: They [the Union] may try to squeeze us into a posi- tion to pay you more money, but I'll say to you I'm not the kind of a guy that can be squeezed-in fact, I can't be squeezed-and I'll tell you why-because long before it's necessary to do any squeezing I've given you folks what you rate. It's purely a mathe- matical fact-you got it before a union. ITEM 7: Should a union get in this plant we are obliged to negotiate with them. We are not obliged to sign a contract with them. . . . This year business is terrible. . . . What we can do is nothing. ITEM 8: You just cannot violate the laws of economics for any length of time-it will hit you as sure as God made green apples, exactly the same as the New England mills were hit. The General Counsel and the Union argue that items 1 through 3 and 8 imply that the Respondent would close its plant if the Union (the "blight") won the election and that item 4 confirms the implica- tion. We do not so construe the words of the five excerpts. In fact, the excerpts themselves establish quite the contrary-that the Employer expressed the intent to continue operating its plant whatever the out- come of the election. After referring to the "blight of unionism," Lux said, "I'm talking now about the long range view and what happens to companies." In requesting the employees to vote for no union, he asked them "not to blight the growth of the company." Lux also said, "You just cannot violate the laws of economics for any length of time"; and "Should the union get in this plant we are obliged to negotiate with them." [Emphasis supplied.] Each of these expressions con- notes circumstances of the future in the event the employees selected the Union to represent them ; I a threat to close the plant, as alleged T Other portions of Lux's speech , which the General Counsel and the Union failed to note, establish even more obviously the Respondent 's intention to continue operating its plant if the employees selected the Union to represent them For example , commenting on the employees' increased earnings since the plant had opened, Lux said, "But you, your- selves, by your own efforts, have raised your wages about 200/0 since you started, and you are not finished." In mentioning the Respondent 's debt incurred for the new plant building, he remarked , "It will take 20 years to pay it off " Lux also said , "If you want the union please vote for it" ; and "whether a person belongs to a union or doesn't belong to a union is all the same to me-each individual will be treated precisely the same " 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the General Counsel and the Union, would necessarily have to pre- clude a future involving the Union. The Union itself takes a position on items 6 and 7 (to be treated separately hereafter) completely inconsistent with its contention that items 1, 2, 3, 4, and 8 constituted a threat that the Respondent would close its plant if the Union won the election. The Union interprets items 6 and 7 as a threat by the Respondent that it would not bargain in good faith if the Union won the election. A refusal to bargain in good faith after an election, as claimed by the Union, implies some sort of continuing relationship between the Respondent and the Union and conclusively negates an alleged threat of a plant shutdown after the election. The General Counsel and the Union seem to rely upon item 4 as the strongest string in their bow of alleged threats. They claim the Board should deem the Respondent's refusal to answer the direct question whether the plant would be closed in the event of a Union election victory to be equivalent to a "yes" answer. They argue that the Respondent's reason for refusing to answer the question-that it would be against the law-implies only a "yes" answer. We cannot agree with such a conclusion grounded exclusively upon innuendo. We consider applicable here, as elsewhere, the requirement that the General Counsel establish a violation of the Act by affirmative, con- crete evidelice. At best the General Counsel has shown only that Lux's posture left the answer to the question in doubt; he has not proved a threat or any form of coercion on the Respondent's part.' The General Counsel's emphasis on innuendo cannot reasonably be found to overshadow an explanation of Lux's answer to the effect that he was thinking of his opinion of the long-term effect of unions- an explanation in tune with the rest of Lux's remarks-but refrained from giving an answer to such a loaded question because he feared that his answer would be misconstrued. Accordingly, and as the complaint does not even allege that the Re- spondent engaged in any conduct-other than Lux's speech-that in- dicated as little as an antiunion bent, we do not deem that Respond- ent's remarks contained in the five excerpts a threat that the plant would be closed precipitately if the Union won the election. With respect to item 5, the General Counsel and the Union claim that it was, in effect, a threat that benefits were being withheld from the employees because of the Union and a promise that such benefits would be granted if the Union lost the election. We cannot go along 8 We note in this regard a recent holding of the court of appeals (In N. L. R. B. v. The Sun Company of San Bernardino, California, 215 F. 2d 379 ( C. A. 9) that an employer had not violated Section 8 (a) (1) where he assumed a verbal position almost identical to that of the Respondent here. In that case the employer stated, "I am prohibited by law from telling you that I will never sign a contract with the Typographical Union." It is particularly significant that the court so held notwithstanding its findings that the employer had otherwise violated Section 8 (a) (1) and (3) of the Act. THE LUX CLOCK MANUFACTURING COMPANY, INC. 1201 with the claim that item 5 evinced some devious, unlawful design. The meaning of the words is clear; we see no threat or promise of any kind there. Item 5 is merely a statement of the Respondent' s position on wages and an explanation of the Respondent's concept of its legal obligations in the course of the Union's organizational campaign. As such, the statement did not violate Section 8 (a) (1).9 The Union claims that by items 6 and 7 the Respondent threatened the employees that it would not bargain with the Union if it won the election. As indicated above, the General Counsel does not join in this contention. Demonstrably, the Union's argument has no merit; within the very statements relied upon by the Union is Lux's remark : "Should a union get into this plant we are obliged to negotiate with them." As Lux's speech and related remarks, either considered in entirety or disjointedly by excising excerpts therefrom (as the General Coun- sel and the Union suggest), was an expression of the Respondent's views within the meaning of Section 8 (c) and did not impinge upon the employees' right to do as they pleased without fear of retaliation or expectation of special benefit, we shall dismiss the complaint in Case No. 10-CA-2069 and overrule the objections to the election in Case No. 10-RC-2818. [The Board dismissed the complaint in Case No. 10-CA-2069, and the objections to the conduct of the election and conduct affecting the results of the election in Case No. 10-RC-2818.] MEMBERS MURDOCK and PETERSON, dissenting : In our opinion, Lux in his speech and subsequent remarks to the employees just before the election made threats of reprisal and other unlawful remarks to the employees in violation of Section 8 (a) (1) of the Act, thereby preventing a free election, as a result 'of which the election should be set aside. We note that the majority first lays great stress on the necessity for viewing Lux's speech in its entirety in order to determine whether Lux made unlawful threats and other unlawful remarks, and then inconsistently concludes that Lux's remarks were permissible free speech on the basis of a very general and incomplete summary of the speech which loses the true and complete import of the speech.io The majority then points to the allegation of the General Counsel and the Union that only certain portions of the speech were unlawful, and contends that the majority's alleged consideration of the speech as an entirety :rejects such a disjointed approach to the issue posed for decision. We fully agree that the speech should be viewed in 9 Standard Coil Products, Inc., 99 NLRB 899. 10 The majority summarizes the speech in two short paragraphs . The speech , which is attached to this opinion as an Appendix, consists of 51,2 pages of single space typing. 1202 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD its entirety. However, the fact remains that the whole consists only of its parts, and therefore a consideration of the whole speech neces- sarily requires an examination of its specific parts. And it is hardly necessary that every part of the speech contain unlawful statements in order to find that the speech as a whole was coercive. It is cer- tainly sufficient, as will be shown below, that 8 separate portions of the speech were coercive in nature so as to render the entire speech coercive in the absence of any effective disavowal of the coercive import of these 8 portions of the speech. Accordingly, as is necessary, we shall proceed to a consideration of these eight specific portions of the speech and such other specific portions of the speech which cast light on the total impression conveyed by the speech. In item 1, Lux stated that in New England the textile industry had moved out because of the "blight of unionism," and that "You can't do very much with any factory that is afflicted with [such] a blight." [Emphasis supplied.] Moreover, Lux later stated in item 8 that "it [the blight of unionism] will hit you as sure as God made green apples, exactly the same as the New England mills were hit." [Emphasis supplied.] Thus, item 1, particularly when considered in the light of the later statement made in item 8, contains the plain, and not very subtle, implication that if the Union got in the Respond- ent would close its plant because of such a "blight" in the same way as the New England mills had closed because of the "blight of union- ism." Clearly, therefore, item 1 of Lux's speech contained a threat of reprisal in violation of Section 8 (a) (1). Similarly, in the light of the unlawful threat to close the plant because of the "blight of unionism" which was made in item 1, Lux's statement in item 2, that "all you get for it is a blight on your particu- lar company," also contained by implication an unlawful threat to close the plant. [Emphasis supplied.] In item 3, which is the last paragraph of the speech, Lux stated "if you get the union in, our system will not work, and you will never have a chance to verify that what I'm telling you is true." In view of the previous unlawful threats to close the plant if the Union came in which were made in items 1 and 2, the plain implication of this statement is that the Respondent would close the plant if the Union came in. Lux then stated : "So, I ask you all as intelligent people, not to blight the growth of this company. When, you vote next Friday, vote for no union." In view of Lux's previous threats to close the plant because of the "blight of unionism," this admonition "not to blight the growth of this company" can only be construed as another threat to close the plant if the employees voted for the Union, otherwise by now known as the "blight." We would find, therefore, that item 3 contained unlawful threats of 'reprisal. THE LUX CLOCK MANUFACTURING COMPANY, INC. 1203 Moreover, it is clear that the employees themselves construed these statements as containing a threat to close the plant if the Union won the election. Thus, the very first question of an employee after the speech was : "Mr. Lux, is it true that if the union wins the election, the factory will shut down?" In our opinion, this clearly indicates that the employee had gathered from the speech that Lux intended to close the plant if the Union won the election, and was seeking a "yes" or "no" answer to this impression. And any doubts on this score were quickly removed by Lux's answer to this question. Thus, Lux an- swered : "Unfortunately if I made the proper answer to that thing- no, I'm sorry, I cannot make any comments on that particular ques- tion-it's against the law." [Emphasis supplied.] First, as pointed out by the General Counsel and the Union, it would not have been "against the law" for Lux to have answered "No" to the question, but only for him to have answered "Yes," and therefore Lux impliedly answered "Yes" to the question. And if there is any doubt on that score, the first portion of Lux's answer made his position crystal clear. "Unfortunately, if I made the proper answer to that thing," could have only one meaning, viz, that the true answer, if given explicitly, would be "Yes." [Emphasis supplied.] It could only be "unfortu- nate" if the answer were "Yes" that the plant would close, and not if the answer were "No" that it would not close. Thus, by clear implica- tion, Lux answered "Yes" to the question, and thereby conveyed to the employees an unlawful threat to close the plant if the Union won the election. It is clear, therefore, contrary to the contention of the ma- jority, that Lux did not simply refuse to answer the question or leave the answer to the question in doubt. Instead, by his "unfortunately" preface and his explanation that it was "against the law" to answer the question, he clearly implied that he was answering "Yes" to the ques- tion. We would find, therefore, that item 4 itself constituted an un- lawful threat of reprisal.il n In an attempt to support its position that Lux's reply to the question was not an un- lawful threat of reprisal, the majority "notes" a recent holding of the court of appeals in N. L. R. B. v. The Sun Company of San Bernardino, California, 215 F. 2d 379 (C. A. 9), that an employer had not violated Section 8 (a) (1) by stating that: "I am prohibited by law from telling you that I will never sign a contract with the Typographical Union." However, the reason stated by the court for its decision was : "Since we fail to find in Guthrie's statements implying that he would never deal with the Union a 'threat of reprisal or force or promise of benefit,' we regard these statements as being within the protection of Sec. 8 (c)." Thus, the basis for the court's decision was not that an implied threat had not been made, but rather that the implied threat which had been made was a threat never to deal with the union, and was therefore not a "threat of reprisal" against employees, and consequently was protected by Section 8 (c). Clearly, therefore, the court's legal conclusion does not apply to the situation here where there was an implied threat to close the plant, and therefore a "threat of reprisal" against the employees. We note, however, that the court's factual finding that an implied threat had been made there by similar implication supports our position that an implied threat was made here. But none of the foregoing Is to be construed as an agreement on our part with the court's legal conclusion that an anticipatory refusal to bargain is not a violation of Section 8 (a) (1). 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Despite all these clear threats to close the plant if the Union won the election, the majority contends that Lux otherwise expressed the intent to continue operating the plant whatever the outcome of the elec- tion. We disagree. The first such expression, "I'm talking now about the long range view and what happens to companies," is vague and ambiguous, and is hardly a clear expression of intent to continue oper- ating the plant whatever the outcome of the election. The second, an admonition "not to blight the growth of the company." by voting for the Union, is more consistent with the threats to close the plant if the employees voted for the Union. The next, "You just cannot violate the laws of economics for any length, of time," indicates that the threats to close the plant if the Union got in would be carried out al- most immediately. The next, "Should the union get in this plant we are obliged to negotiate with them," was simply a statement of the Respondent's legal obligation under the Act, but any intent to actually perform this obligation was immediately removed by the very next statement, in effect, that the Respondent would not sign a contract with the Union. The next such expression reads "But you, yourselves, by your own efforts, have raised your wages about 20% since you started and you're not finished," thereby clearly indicating that this could not be done with the Union. The next, that it would take 20 years to pay off the plant building, was simply part of an explanation that the Respondent had to borrow money for the building, and the mortgage term was 20 years. In the last such expression referred to by the majority, Lux did state a neutral position with respect to the Union. However, in view of all the unlawful threats to close the plant cited above, and other coercive statements in the speech cited below, we view such purported "neutrality" statements as merely pious pro- nouncements which could not possibly remove the coercive effect of all the unlawful statements made by Lux. The majority also contends that there is some sort of inconsistency in finding, as we would do in agreement with the Union's contentions, that Lux in certain portions of his speech threatened to close the plant if the Union won the election and in other portions threatened not to bargain in good faith if the Union won the election; that the refusal to bargain implies some sort of continuing relationship between the Respondent and the Union and therefore negates any-threat of a plant shutdown after the election. We fail to see any inconsistency between a threat to close the plant and an anticipatory refusal to bargain. The two are completely compatible and not the least bit unusual.'2 "The majority also points to the absence in the complaint of any allegation that-the Respondent engaged in any conduct-other than Lug's speech-that indicated as little as an antiunion bent on the part of the Respondent. In our opinion, the speech itself was more than sufficient not only to show an antiunion bent but a carefully designed intent to defeat the Union at the polls by unlawful threats of reprisal and unlawful anticipatory refusals to bargain. THE LUX CLOCK MANUFACTURING COMPANY, INC. 1205 Under other circumstances, we might agree with the majority that a statement such as that made by Lux in item 5 was motivated by a reasonable desire to avoid violating the Act, and was therefore not a violation of the Act. However, in view of the unlawful threats to close the plant which were made by Lux in other parts of his speech, we would find that Lux's statement that the Respondent was withholding a wage increase because of the Union was motivated by a desire to penalize the employees for engaging in union activity, and was therefore a violation of the Act.13 In item 6, Lux stated that "I can't be squeezed" into paying the employees any more money by the Union, thus adopting the categorical position that under no circumstances could the Union get any more money for the employees. In our opinion, this statement revealed a fixed determination not to bargain in good faith on the subject of wages, and was therefore a violation of Section 8 (a) (1).14 In item 7, Lux stated that "We are not obliged to sign a contract" with the Union, and "What we can do is nothing" in negotiations with-the Union. In our opinion, these statements were tantamount to saying that the Respondent would never sign a contract with the Union, and were therefore violative of Section 8 (a) (1).15 As already indicated in our discussion of item 1, item 8, when considered in the light of the statements previously made in item 1, contains a clear threat that the Respondent would close its plant be- cause of the Union "exactly the same as the New England mills" were closed because of the unions, and constituted an unlawful threat of reprisal. In view of the foregoing, we conclude that all portions of Lux's speech alleged to be coercive were coercive, and that in the absence of any effective disavowal of the coercive import of these portions of the speech, the speech viewed in its entirety was coercive. We would find, therefore, that Lux's speech violated Section 8 (a) (1) of the Act, and further constitutes grounds for setting aside the election. 23 Cf. Standard Coil Products, Inc., 99 NLRB 899. 14 See United States Gypsum Company, 90 NLRB 964, 969. is See F. W. Woolworth Co., 101 NLRB 1457, 1458. As indicated above, these two statements clearly show that Lux's previous remark, "Should a union get into this plant we are obliged to negotiate with them," was simply a statement of the Respondent's legal obligation under the Act, with no intent to perform such obligation APPENDIX TRANSCRIPT OF TALK GIVEN BY MR . FRED Lux AT THE Lux CLOCK MFG . COMPANY PLANT IN LEBANON, TENN. ON WEDNESDAY, SEPTEMBER 15, 1954 Last evening about-late yesterday afternoon I finished my day's work about 4:30-went home, packed a bag, and drove to LaGuardia field-about 90 miles-got in a plane and flew down here, and went to bed about 1 o'clock-just for the purpose of coming down here and probably rounding out your information on the pros and cons of whether of not we want our company to operate with a union. 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have just about an hour to speak to you-I 've got to beat it again, take a plane and get back home-have a part of tomorrow to work, and I've got to go away on a six weeks mission Friday noon. I'm taking, actually, about 25% of my time to come down here and tell you what this is all about-because I think it is important. Up in New England we used to have some wonderful chestnut trees. We used to have around our typical New England green a lot of elm trees . We also used to have up in New England a lot of textile industries. The chestnuts are all gone, the elms are all going, and the textile industry has also moved out of that area, due to what might be called a blight. There isn't much you can do with a chest- nut tree when it's got the blight except to cut it down , probably you can use the lumber. Theie's nothing you can do with an elm tree-they won't even let you use it for kindling wood-because that blight will spread to other trees. You can't do very much with any factory that is afflicted with a blight, and the factories up in New England have all been-particularly the textile factories-have been afflicted with the blight of unionism . I'm talking now about the long range view and what hap- pens to companies. Another thing I don't believe you are fully aware of-that this matter of unionism is big business. There are a lot of people employed by the union; they get a very, very good day's pay for it, and they have accumulated surpluses way beyond what our company and thousands of other companies have been able to accumulate. The particular union that is trying to interest you people to belong to them , or to join up with them-their national union has approximately $ 1,000,000 in surplus. They're much wealthier than we are-and personally the members don't benefit very much from that $ 1,000,000-that sum is for people who make unionism their busi- ness to use and enjoy. What a very, very nice soft job. They further have a great habit of making statements that are not true. If I wanted to be a little impressive about this thing I would say that-I'll omit the pro- fane words-simply plain lies. I have here a few of the circulars that have reached you by the union-let's see what they have to say. I'll just take one typical one. "Analyze these questions and answer them yourselves. These things and these things only persuaded Mr. Lux to establish this plant in Lebanon: #1 was the bright picture of a brand new building, paid for by the citizens of Lebanon, by supporting a Bond issue; #2 was the promise of low wages-Mr. Lux was assured that his company would have hundreds of workers at his command at a miserly wage scale, and he jumped at the chance; A new building-rock bottom labor costs-a reservoir of employees. What could be more attractive?" The bulk of those things are-and I'll again omit the profane words-lies-plain ordinary misstatements of fact . We came down here to Lebanon because this is the center of the market for Alarm Clocks. Shipping charges are very, very expen- sive and they're getting more and more so. By having our plant located here in Lebanon we could be more competitive-we could sell more clocks and we could serve the people who use Alarm Clocks. You don't know it but the use of Alarm Clock, spring-powered, of the type you,make here, is going down in the United States. It's an item that's used mostly by poor people who can't afford electric clocks-or whose homes aren't wired for electricity-it's about the same thing. Price to them is very, very important. Further, before we established our plant here in Lebanon, my son and I traveled around to about a dozen different towns in this area. Lebanon hasn't got one thing, insofar as its location is concerned , better than those other towns , but somehow or other I like the people in Lebanon-I still like the people in Lebanon. I'll say to you that I get a big thrill when I go through this plant and have a chance to have a word or two with a lot of very, very intelligent people. I still think that you have intelligence, and I believe that we did not make a mistake in putting our plant here in Lebanon, primarily because I felt the people here would be better people to work with. Now, as to low wages. I'll say to you in all sincerity and honesty-and when I say things to you, I'm a man of substance-if I make a mistake I can be attacked. I can't afford to be attacked-but I'll say to you in all honesty there are locations within 30 miles of Waterbury, where the wages earned by the people in the plant are less than you people are earning right here and now. I happen to have a distant relative who is working in an organized plant-a union plant-within 15 miles of Waterbury-and after all the promises made by the union to have those people's wages raised-the people in that plant are earning less than you are earning here. That's an absolute fact. THE LUX CLOCK MANUFACTURING COMPANY, INC . 1207 Further, I think it's not cricket-I'm not adverse to any argument, or any fight or any bargaining with anybody. I've been doing it all my life and I'll take my chances with anyone when it comes to good square bargaining. Back here when we first started this operation in this plant last March, believe me you and I, and Joe, and Bill, and everyone of us were a bunch of greenhorns. We've learned a whole lot since. That conditions at that time were bad I'll admit. I'll admit it purely because we were trying to take a bunch of people who had never made a mechanical product in their lite before, and have them make such an intricate prod- uct as a clock. That it was a discouraging experience I'll have to admit. That you had a right to be disgruntled without knowing all the facts, that is also a fact. But I'll ask you now-aren't conditions in the plant today better by a whole lot than they were then? The records of your daily earnings demonstrate that is so. There are some of you people in this group who have already attained the degree of effi- ciency, so that your earnings are as high or higher than any other plant here in Lebanon. Now that is a fact. I'll say to you further that it takes at the longest two years for a person on a large number of jobs to become really proficient. You folks have not reached your peak earnings as yet. But you, yourselves, by your own efforts, have raised your wages about 20% since you started, and you're not finished. That's the Lux method. We will pay every nickel a person earns and make every opportunity to earn it- but they have to earn it. We cannot pay one nickel beyond that because we haven't got it. We only get our money from the sale of our products. I am only your agent. We have to sell our clocks to our customers, and when I sell a clock to a customer, by golly, I'm selling your work. If it isn't there, you can't get it. If it is there you're going to get it-you've just got to get it under our method of operation. To start in organizing this plant when it is in that condition, I think was a very, very unfair thing to do. And I'll say to you further, that this organization job started at that time not because they wanted to organize us, but because this group here was a source of revenue to this union. They got word that another union was trying to organize, so they jumped the gun and got in quick-irrespective of whether it was fair to you, or fair to the company, or.fair to anybody. What they did not want to lose was that $350.00 a month that you fellows will pay into the union, when you got this place organized and start paying dues, initiation fees, and all that sort of thing. I think it's the most unfair thing-it's like actually taking milk away from a baby. I have already touched upon the fact that you folks' earnings have been improving- I'm quite sure they have-it's a matter of record-and I don't need to spend-require any defense to you on that. There is one more factor. We have not been able to disclose our company's poli- cies to you because some of the policies have to do with performance. Some of the policies, had we disclosed them to you, with your relative inexperience in industry, might have been misconstrued. We have had our plant here in Lebanon now for- in fact, here about two weeks ago, was the anniversary. You folks have attained our required schedule-the schedule we planned for. You folks have actually made, for the last several days, 4M clocks per day. A performance like that, and particularly when it occurs on the anniversary of our starting of this place, requires some recog- nition. I'm sorry to have to tell you that we cannot recognize it, because your union is in the way. It's against the law for us to make any recognition of such things while a union is organizing a plant. You would have had your recognition earlier if you didn't have this organization going on. Should a union get in this plant we are obliged to negotiate with them. We arg not obliged to sign a contract with them. If we have any reasonable economic reasons for not signing a contract, we don't have to sign it. It's a case of bickering, arguing, arguing, bickering-and I've been at this business long enough to know what this company can do and what it can't do, and I haven't got to be reminded by anyone what it is able to do. I know as far as our performance, last year was a pretty good year. This year business is terrible. The profits from our operations, between here and Waterbury-I'm not at all proud of it. What we can do is noth- ing. What you can do for yourself helps, and you can do it. I had a union in our plant back in 1942. They got in by a very, very small major- ity. At the end of the year practically every one of the people who belonged to the union resigned. Our people in Waterbury today are the highest paid people in that town-have the highest earnings of anybody in that town, but they earn it and they get it, and it isn't obtained from the company by force. What you obtain by force leads to strikes and all sorts of things. The only possible way for the company to 379288-56-vol. 113-77 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay you more money is to have you earn it. I know you can-I know it by the progress you have made thus far, and you can keep on going. I think that the facili- ties set up for you here make it possible to do so. Oh-yes-I muffed something completely and I have to go back. There was a statement that this plant was built or paid for by the people of Lebanon. I don't know whether it says that or not, but that's my understanding of it. Let me tell you folks that this plant was built with borrowed money on the credit of The Lux Clock Company, and we are already starting to pay it off. We have to pay off the whole thing. This building doesn't cost you one red cent-it doesn't cost the town one red cent. This building, the place where you work, was built by borrowed money that this company, our company, your company is paying off, and it will take us 20 years to pay it off. When a person or any individual makes a reference to-make a state- ment that isn't true-in fact, makes two statements that aren't true-how can you believe any statement they make to you. All right-another thing. You talk about union organization. There are 60 mil- lion plus people-working people-here in the United States. Unions claim to have about -15 million, and I'm going to say to you that 15 million is not a majority of the people. They are the minority. If the thing was so darn good and so wonderful and everything else, they wouldn't have to work so hard for over 30 years and only got 1/4 of the people that have a right to belong to a union. The other 45% have confidence in their organization, have confidence in their Management all the way down-as well as the organization having confidence in the people on their team-and that's the way to operate a factory. There's one more thing I think is rather important-and I do not know whether or not you know it, or whether you have been told. If you get a union in this plant you've got it, and you can't get out of it. There is nothing you can do about it. You'll be paying tribute to their union for holding your job all your life-as long as you work here. They don't give you any idea-never told you how if you don't like it, you can get out-did they? They want to get you in-they want to get you in from now on, as long as you work-you pay them tribute. Is that the Amer- ica way of doing things? All you get for it is a blight on your particular company. I've run factories all my life and never had a union in any of them, except for that short period-and that short period proved that I was right. You can get more co- operation with enlightened Management and an enlightened group of employees than you.can with some outsider sitting in, who is only making-profanity again-a pest of himself, just to justify his job and let you know what a big shot he is. That's all they do really. Further, and this is basic-unions haven't any power to make an employer do one single thing except a strike, and it is actually a fact that the people who lose on a strike is not the company but the poor people out there who are out of a job for Lord knows how long. I want to have you bear in mind that your union leaders from the International's other places, go right on getting their pay. They don't strike-they never lose anything-they may possibly run a union and win you a couple of things- but they don't lose any money when they ask you to go out on a strike, and you lose it. In the Lux Clock Co. you haven't got to go out on a strike to get a raise if you earn it. Now, there is one more thing and I'll wind this story up. There's going to be an election here Friday afternoon at 2:30. I would like to see every single one of you people vote. I want to have you vote as you feel you should vote, but please vote. I'm so afraid of.people having their policies, or whatever they voted for, lost because of one vote. If you want the union, please vote for it. If you don't want the union, please vote for that too. Another thing I believe a lot of you people have been told-that if you have signed one of the cards requesting. an election, you are obligated to vote for the union. That is one of the lies that I've ever heard tell. You do not have to vote for the union. If there were so, why have an election? Why have an election if you have to vote the way the cards-I can conceive how it is possible for a person to sign a card last March and April when things were going along pretty bumpy here. A person has a perfect right to change their mind-they have a perfect legal right to change their mind-that is why this ballot is secret-you can vote as you please, whether you signed the card or not. While the union stresses the point that the vote is secret-that I won't know how you vote-they don't know how you vote either. That's a two-edged sword, but the way they tell it-try to keep it a secret from me. For me it doesn't make much difference. I always play a deck of cards the way they happen to play I love to play bridge and I'll play whatever hand I get. THE LUX CLOCK MANUFACTURING COMPANY, INC. 1209 And another one-some of you have been told that your job depends on your be- longing to a union. That is absolutely not so. In fact, the State of Tennessee has a "right to work" law. The union tries to make it that way so that you have to belong to a union to hold your job, and that's marvelous-because then they get 70 more monthly fees. That's a wonderful trick if they get away with it, but it does not ap- ply. Whether a person belongs to a union or doesn't belong to a union is all the same to me-each individual will be treated precisely the same. There is no difference as far as I'm concerned. You're all Americans the same as I am-you can do as you please. Please be intelligent. Most of you have been here less than a year-your earnings are improving every day, every week they're going up. I've already mentioned this, but I'll mention it again, just to reiterate. Have you ever heard of an industrial strike in a plant that had no union? I am asking you in all sincerity to give the company a chance to prove to you that our methods of treating our people, both insofar as the working conditions they have are concerned, and insofar as the earnings are concerned-give them a chance to work. It takes more time than you have been here. If you do it, you're all your own free agents, you won't be bossed around by any union's stewards, or anybody else-you only have one person to look up to, and that is yourself. Even not to me, even not to Joe. You have a perfect right to go to Joe, or anyone else if you have any grievance. This place is plenty small enough-and there aren't so many people here that Joe can't take care of your individual grievances. He can do that perfectly lovely-he ought to be able to do it. He's one of your neighbors, he knows you much better than I do, and that is the reason I put Joe in. I deliberately took a man who never had one bit of industrial experience, but he did know his neighbors. I thought that he was a man who was liked by his neighbors. I put one of your own people in here to manage the plant for you. Give the poor guy a break-I am. Give him a chance. Further, if you get the union in, our system will not work, and you will never have a chance to verify that what I'm telling you is true. So, I ask you all as intelligent people, not to blight the growth of this company. When you vote next Friday, vote for no union. Now, if you have any questions, I'll be very glad to answer them. QUES: Mr. Lux, Is it true that if the union wins the election, the factory will shut down? F. Lux: Unfortunately, if I made the proper answer to that thing-no I'm sorry, I cannot make any comments on that particular question-it's against the law. Are there any other questions? Any comments? J. Atkinson: If there's anything you want to find out, or you're not clear about, speak up. Don't be bashful. QUES: If the union should come in here, do we all have to belong to it? F. Lux: No, but if the majority here vote for a union, those who do not belong to the union have to be treated the same as union people do-they are all treated alike. If the plant goes out on a strike, whether or not you belong to the union, you'll have to go out too. QUES: The only thing is that they don't take the money out of your pay every month. F. Lux: No, they don't-that's right. Oh, by the way, I just want to make this little comment. A little job that the com- pany does is to put money into your pay checks-they take it out. They may try to squeeze us into a position to pay you more money, but I'll say to you I'm not the kind of a guy that can be squeezed-in fact, I can't be squeezed-and I'll tell you why- because long before it's necessary to do any squeezing I've given you folks what you rate. It's purely a mathematical fact-you get it before a union. As I mentioned to you before-they want to get credit for every little iota-they've got to show some- thing for the money you pay them. Every little grievance they go to work and make a mountain out of a molehill. All right, you got a tummyache and want-to go home, and the boss says stay another hour. They go see the boss and let you out. Oh, boy, what a wonderful thing they've done. I've had it. - QUES: F. Lux: You certainly do, and you don't know whether your dues that you pay are constant. It was in the paper yesterday they're going to double the dues-they're going to double the dues of the automobile union. I want to mention another thing that has a bearing on it-you have heard that the people in the steel business got a raise-I think 50 per hour or 30 per hour, something 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD like that-but in any event when you put the raise through they raised the price of steel. It has gotten to a point now where we are throwing steel out and using alumi- num. You have heard about Mr. Lewis' union. Can you take a ride today on any train that uses coal? You do not-they use oil. Up in New England we're taking out coal burning furnaces, and as fast as we can get new ones we're putting in oil burners or gas fired furnaces. You just cannot violate the laws of economics for any length of time-it will hit you as sure as God made green apples , exactly the same as the New England mills were hit. They were union dominated and pretty well told the boss what to do- even if they didn't know the first damn thing-beg your pardon, I was just being expressive--didn't know the first darn thing about running a mill. They came in there and tried to make big shots out of themselves , threw out their chest-see what a wonderful thing I did for you . As a matter of fact-well-are there any other questions? Joe-do you want to make some comment? Thank you folks-thanks for listening. J. Atkinson : There are no more questions ? Well, I hope all of you have a better understanding of the thing, and if there is no more questions I'll just comment-take your break and in about 10 minutes we'll start back to work . Thank you much for your attention. Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, its agent, Nathan Fleisher, and Los Angeles County District Council of Carpenters 1 and Sand Door and Plywood Co. Case No. 21-CC-189. August P26,1955 DECISION AND ORDER On December 13, 1954, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in and were not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, excep- tions and briefs were filed by the General Counsel, the Charging Party, and the Respondents, and a brief amicus was filed by the Chamber of Commerce of the United'States. Pursuant to notice, oral argument was held on July 7, 1955, before the Board at Washington, D. C., in which the General Counsel, the Charging Party, and the Respondents participated. 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 Inter- mediate Report, the exceptions and briefs, the oral argument, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner only insofar as they are consistent with this Decision and Order. 1. The Respondents except to the Trial Examiner's recommenda- tion that jurisdiction should be asserted herein. The complaint alleges that the Respondents induced and encouraged employees of Havstad & Jensen and of other employers to engage in concerted refusals to The name of the District Council appears as amended at the hearing. 113 NLRB No. 123.