Hicks-Hayward Co.

HICKS-HAYWARD COMPANY 695 Hicks-Hayward Company and Amalgamated Clothing Workers of America, AFL-CIO. Case No. 33-CA-380. July 15, 1957 DECISION AND ORDER On January 22, 1957, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain alleged unfair labor practices, and recommending that the complaint herein be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. 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 Leedom and Members Murdock and Rodgers]. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner.' [The Board dismissed the complaint.] 'We agree with the Trial Examiner that the Respondent did not violate Section 8 (a) (1) by conducting antiunion meetings of employees during working hours. The Board de- cisions relied on by the General Counsel, as set forth in the Intermediate Report, are clearly inapposite. The issue in such representation cases was whether conduct of the type in- volved herein interfered with the employees ' freedom of choice in an election , and the language of these Board decisions must be read in that frame of reference . The issue in this unfair labor practice case, however, is whether such conduct interfered with employees in the exercise of rights guaranteed in Section 7. The Board has heretofore recognized a distinction between the two types of interference and has held that the criteria applied in a representation proceeding to determine whether certain alleged misconduct interfered with an election need not necessarily be identical to those employed in testing whether an unfair labor practice was committed. General Shoe Corporation, 77 NLRB 124, 127; Metro- politan Life Insurance Company, 90 NLRB 935, 938. Cf. The Liberal Market, Inc., 108 NLRB 1481, 1482, 1485 . Indeed in the General Shoe case, although the Board set aside an election on the basis of similar conduct it declined to pass on or adopt the finding of the Trial Examiner therein that such conduct also violated the Act, we see no valid reason for departing from the precedent established in these cases and finding, as the General Counsel apparently contends , that conduct which interferes with a free election necessarily constitutes a violation of Section 8 (a) (1) of the Act. We further find that the Respond- ent's conduct, which was devoid of threats of reprisal or promises of benefit, did not violate Section 8 (a) (1). INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on October 24, 1956, by Amalgamated Clothing Work- ers of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board , herein respectively called the General Counsel I i This term specifically includes counsel for the General Counsel appearing at the hear- ing. 118 NLRB No. 81. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Board, issued a complaint, dated November 15, 1956, against Hicks-Hay- ward Company, El Paso, Texas, herein called Respondent, alleging that Respondent 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, 61 Stat. 136, herein called the Act. ,More specifically, the complaint alleged that Respondent, through its agent and attorney-at-law, John Price, had, from on or about October 19 to on or about October 24, 1956, for the purpose of preventing Respondent's employees from exer- cising the freedom of choice of a bargaining agent at the forthcoming Board-con- ducted election, conducted meetings of small groups of said employees, on company time and property, at which meetings Price expressed Respondent's antiunion senti- ments and at the same time recorded, by means of a tape recording machine, the employees' reaction to Price's remarks. Respondent duly filed an answer denying the commission of the unfair labor prac- tices alleged. Pursuant to due notice, a hearing was held on December 4, 1956, at El Paso, Texas, before the duly designated Trial Examiner. The General Counsel, Re- spondent, and the Union were represented by counsel. Full opportunity was af- forded the parties to be heard, to examine and cross-examine witnesses,2 to intro- duce relevant evidence, to argue orally at the conclusion of the taking of the evidence, and to file briefs on or before December 15, 1956. Briefs have been received from the General Counsel and from counsel for Respondent which have been carefully considered. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Hicks-Hayward Company, a Texas corporation, has its principal offices and plant at El Paso, Texas,3 where it is engaged, and during all times material was engaged, in the manufacture, sale, and distribution of men's and boys' cotton work clothing. During the 12-month period immediately preceding the issuance of the complaint in the instant proceedings, Respondent's out-of-State purchases of raw material ex- ceeded $1,000,000. During the same period, Respondent's out-of-State.- sales of finished products exceeded $1,000,000. Upon the above undisputed facts, the Trial Examiner finds that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The stipulated pertinent facts On October 8, 11956,4 the Board, pursuant to a petition filed by the Union on June 29, issued a Decision and Direction of Election,5 directing that an election be held among Respondent's El Paso plant nonsupervisory production and maintenance employees. In accordance with said Order, the Regional Director for the Sixteenth Region arranged to hold the election on October 26. On October 24, the Union filed with the Board a charge alleging that Respondent had engaged in certain unfair labor practices, the commission of which would render impossible the free selection by the employees involved of a collective-bar- gaining representatives It appears from the stipulated facts that on October 20, 22, 23, 24, John Price, Respondent's attorney, conducted some 15 meetings during working hours in the plant's cafeteria; most of the employees in the appropriate bargaining unit attended these meetings in groups of 25 to 50; at each meeting Price made substantially the 2 No witnesses were called. 3 Respondent also operates a plant at Del Rio, Texas. However, the employees of the El Paso plant are the only ones involved in these proceedings. 4 Unless otherwise noted, all dates refer to 1956. 5 Case No. 33-RC-574. 6 Because of the pendency of this proceeding, the election has been postponed indefinitely. HICKS-HAYWARD COMPANY 697 same remarks; each meeting lasted from 45 minutes to 1 hour and 15 minutes depending upon the number of questions put to Price by the assembled employees; Price's remarks and those of employees who spoke at the meetings were recorded upon a tape recording machine which was in plain view of the employees ; at each: meeting Price, stated that if the employees desired he would not record any remarks made by them; whenever the employees requested that the machine not record their remarks, Price complied with their requests ; Price, at the opening of each. meeting, stated that if any employee did not desire to hear what he had to say, he was free to leave the meeting.? The stipulated facts further show that at these meetings Price explained the ballot that was to be used in the forthcoming election , which was an official Board ballot; that he told the employees that if they desired the Union to be their bargaining representative they could so choose the Union by marking the box designated "Yes" appearing on the ballot and if they did not want to be represented by the Union they should mark the box designated "No"; and that he then stated that he and the plant manager each believed the employees should vote not to be represented by the Union, adding that strikes were not only dangerous but costly. On October 24, Respondent distributed to the employees working at the plant that day, copies of a so-called typical salary check which set forth various monetary items which each union member was purportedly obligated to remit to his union each payday.a On October 25, Respondent handed to the employees working at the plant that day, copies of a 2-page letter setting forth Respondent 's reasons why the employees should repudiate the Union at the impending Board election-9 B. Concluding findings At the hearing and in his brief, the General Counsel contended that , although Price's above-referred-to remarks at the cafeteria meetings, and the statements con- tained in the documents handed to the employees on October 24 and 25, were non- coercive and contained no threat of reprisal or promise of benefit , Respondent, nonetheless , violated Section 8 (a) (1) of the Act. In support of his contention, the General Counsel points to, and relies mainly, not solely, upon , Supreme Trailer Company, 115 NLRB 962; Mrs. Baird's Bakery , 114 NLRB 444; Oregon Frozen Food Company, 113 NLRB 881; Richards Container Corporation, 114 NLRB 1435; Economic Machinery Company, 111 NLRB 947; and United Steelworkers of America v. N. L. R . B., C. A., D. C., 39 LRRM 2103. The General Counsel's reliance upon the above-cited, and similar, cases is mis- placed for each of those cases involves a situation in which the labor organization involved lost a Board-conducted election and the union subsequently moved to set aside the results thereof upon the ground that certain proscribed employer conduct rendered a free choice of a bargaining representative improbable. The Board has frequently held 10 that an employer may openly make antiunion statements to his employees , if he wishes, but such statements must be free of either promises of benefit or threats of reprisal , either expressed or implied . This limita- tion on such statements is fixed by Section 8 (c) of the Act, the so-called "free speech" provision. But, as the Board held in Metropolitan Life Insurance Co., 90 NLRB 935 , and in similar cases,ll it is not limited by the provisions of Sec- tion 8 (c) in determining whether or not a statement is of such nature as to make the free selection of a bargaining representative improbable . As the Board pointed out in Metropolitan Life, at page 938, Section 8 (c) prevents the Board from treating as evidence of unfair labor practices any expression of views, arguments , or opinion which contains no threats of reprisal or force or promise of benefit. Section 8 (c) does not, however, prevent the Board from finding in a representation case that an expression of views, whether or not protected by Section 8 (c), has, in fact, interfered with the employees' freedom of choice in an election , so as to require 1 At 2 separate meetings 3 or 4 employees left before Price proceeded with his talk. This document ended with : "Vote 'No' and Keep Your \loney ! ! !" e Below the signature of the plant manager appears : YES NO El E9 10 For example , Cherry and Webb Co ., Providence, 93 NLRB 9. 11 Such as, Blue Flash Express, Inc., 109 NLRB 591; Wayside Press, Incorporated, 103 NLRB 111 , enfd. 206 F. 2d 862 ( C. A. 9) ; The Walmae Company, 106 NLRB 1355; Ena- 'and Brothers, 99 NLRB 258 , enfd. 201 F. 2d 395 (C. A. 1). 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that such election be set aside .. (General Shoe Corporation , 77 NLRB 124. Cf. S. W. Evans & Son, 81 NLRB 161.) [Emphasis supplied.] In view of the conceded fact that Price's remarks and the statements in the documents distributed to the employees on October 24 and 25 , contained no threat of reprisal or force or promise of benefit, said remarks and statements are protected by Section 8 (c) of the Act. Accordingly, the Trial Examiner recommends that the complaint be dismissed in its entirety.12 CONCLUSIONS OF LAW 1. The business operations . of Hicks-Hayward Company, El Paso, Texas, con- stitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated Clothing Workers Union of America, AFL-CIO, is a labor or- ganization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] 12 Respondent did not violate the Act when it urged its employees to repudiate the 'Union at the polls. National Furniture Manufacturing Company, Inc., 106 NLRB 1300; Dem- ing Company, 107 NLRB 1100. Price addresssing the employees on company time and property was not violative of the Act. Livingston Shirt Corporation, et al., 107 NLRB 400. Wheelerweld Division, C. H. Wheeler Manufacturing Company and International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Peti- tioner. Case No. 4-RC-3245. July 16,1957 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election exe- cuted on February 15, 1957, an election by secret ballot was conducted on March 4, 1957, under the direction and supervision of the Regional Director for the Fourth Region of the National Labor Relations Board among the employees in the unit herein found appropriate. Following the election, the parties were furnished a tally of ballots. The tally shows that of the approximately 105 eligible voters, 104 cast ballots; and that 57 ballots were for the Petitioner, 43 were against the Petitioner, and 4 ballots were challenged. On March 11, 1957, the Employer timely filed objections to conduct effecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investi- gation of the objections and, on April 30, 1957, issued and served on the parties his report and recommendation on objections, in which he found that the Employer's objections did not raise any material and substantial issues with respect to the election and recommended that the objections be dismissed. On May 20, 1957, the Employer timely filed exceptions to the Regional Director's report and a separate brief, and on June 3, 1957, the Petitioner timely filed a brief in support of the Regional Director's report. 118 NLRB No. 82.