Davis-Cleaver Produce Co.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis-Cleaver Produce Company and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431. Cases Nos. 14-CA-1826 and 14-RC-3312. Janu- ary 19, 1960 DECISION AND ORDER On March 24, 1959, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged 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 Intermediate Report attached hereto. The Trial Examiner further found that the Respond- ent interfered with the election held in Case No. 14-RC-3312, and recommended that the election be (set aside and a new election directed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent and with the modifi- cations set forth below. The Trial Examiner found, among other things, that the Respond- ent, by its officers, agents, representatives, or supervisors,' engaged in the following conduct in violation of Section 8 (a) (1) of the Act : 1. On or about November 21, 1957, President Wright asked em- ployee Mary Sawyer if she was "getting names or handing out pam- phlets for the Union," and if she had "anything against the Company," and told her that if the Union got in "the plant would close down." 2. During December 1957, the Respondent required its employees to fill out a questionnaire which interrogated employees concerning their union sentiments and sympathies and contained subtle threats to close the plant if it was organized by the Union, and, by reason of certain questions, made possible positive identification of employees. 3. Shortly after January 9, 1958, Floorlady Holler and Foreman Weddendorf had a conversation, at which employee Shirley Biester- field was present. Holler, who had a paper with "seven to twelve names" listed on it, told Weddendorf that she had the names of some employees who had attended the union meeting on the above date. 'The Trial Examiner found that Foreman Weddendorf, Floorlady Holler, Floorman Brashere , and Floorlady Williams were supervisors within the meaning of the Act 126 NLRB No. 31. DAVIS-CLEAVER PRODUCE COMPANY 205 Holler and Weddendorf then discussed the employees who were named on the list. 4. Sometime within the period of 2 weeks before the election, when employee Eve Harden told President Wright that she wanted to bor- row some money to pay some bills, Wright told Harden that she could have the loan but "not to forget him when the election came up." 5. On March 22, 1958, in a conversation with employees in the cook- ing room, Floorlady Holler said : ". . . you better vote right [in the election], because if you don't . . . Mr. Wright is going to close the place down, . . . he is not kidding." 6. On about March 24, 1958, Foreman Weddendorf made a speech to some 75 employees from the eviscerating and raw boning sections in the lunchroom of the plant and therein stated, in substance, that President Wright, "had it made and ... he didn't have to worry whether the plant stayed open or closed," and that "... if the union went in, the plant would be closed." 7. On about March 24 or 25, 1958, Floorman Brashere told employ- ees Alice Webber and George Baker, in substance, that President Wright had canceled all orders and was prepared to close down within a matter of days if the Union got in. 8. On March 24 or 25, Floorman Brashere told employee Don Lair to vote "No" at the election and that if the Union got in, Wright would have to close the plant. 9. A day or two before the election, Floorlady Williams told employee Mary Loop that she believed that if the Union got in, the plant would be closed, that there would be no orders taken until after the election, and that if the Union got in, there would be no more orders anyway. 10. Shortly before the election, the Respondent distributed buttons to its employees, soliciting a "No" vote against the Union and bearing other antiunion slogans.2 11. On March 25, 1958, Floorlady Holler made a speech to the employees in her section (boning) and therein stated, among other things, that Wright had said that he would close the plant if the Union "was in," and that she was not telling the employees how to vote, but that it would be a good idea if they voted against the Union. 12. On March 25, 1958, Floorlady Holler told employee Don Lair "to vote `No' on account of Mr. Wright would have to close the plant," and also said that if the Union got in, neither Lair nor Bill Preston, his stepfather, would have jobs. 13. On March 26, 1958, just before the employees in the boning sec- tion were scheduled to vote, and while other employees were present, 2 The Trial Examiner expressly stated that he did not find that the slogans per se were violative of the Act, but only that the Respondent in the distribution of the buttons to its employees violated Section 8 (a) (1). 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Floorlady Holler told employee George Baker, in substance, that the names of the employees would be taken as they went into vote and that, "We are not so dumb, the ballots are numbered." No exceptions were taken to the foregoing findings, which we adopt, and, on the basis thereof, we find, in agreement with the Trial Exami- ner, that the Respondent thereby violated Section 8(a) (1) of the Act. We further find, in agreement with the Trial Examiner, that by the conduct set forth above which occurred between March 13, 1958, the date of issuance of the Board's Decision and Direction of Election, and March 26,1958, the date of the election, the Respondent interfered with the election held in Case No. 14-RC-3312. We shall, therefore, set aside the election, and shall direct that a new election be held at such time as the Regional Director deems that circumstances at the Respondent's plant permit the free choice of a bargaining representa- tive. As any further findings would not affect the scope of our Order herein,' we find it unnecessary to, and therefore do not, pass upon the Trial Examiner's findings and conclusions with respect to any of the other alleged unfair labor practices or alleged interference with the election. ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Davis- Cleaver Produce Company, Quincy, Illinois, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees, by questionnaire or otherwise, concerning their union sympathies or activities. (b) Engaging in, threatening to engage in, or giving the impression of engaging in, surveillance of union activities, or of voting in a Board-conducted election. (c) Promising its employees benefits for voting against Amalga- mated Meat Cutters & Butcher Workmen of North America, AFL- CIO, District Union 431, or any other labor organization of its employees, in a Board election. (d) Threatening to close its plant, and otherwise threatening its employees with loss or impairment of employment, if in a Board election they choose Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, or any other labor organization of its employees, as their collective-bargaining representative. a We find merit in the General Counsel's contention that the Board should issue a cease- and-desist order with respect to the specific violations found, as well as a general order, as recommended by the Trial Examiner, and we shall therefore modify the Trial Examiner's recommended order and notice accordingly. See, e.g., Nassau Manufacturing Corporation of Teoas, 108 NLRB 837. DAVIS-CLEAVER PRODUCE COMPANY 207 (e) Requiring its employees to wear, or giving them the impression that they are required to wear, buttons bearing antiunion slogans. (f) In any other 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 Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant at Quincy, Illinois, copies of the notice at- tached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof, and be maintained by the Respondent for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election held in Case No. 14-RC-3312 on March 26, 1958, be, and it hereby is set aside, and that that case be, and it hereby is, remanded to the Regional Director for the Fourteenth Region for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. 4In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees, by questionnaire or otherwise, concerning their union sympathies or activities. WE WILL NOT engage in, threaten to engage in, or give the im- pression of engaging in, surveillance of union activities or of voting in a Board-conducted election. WE WILL NOT promise our employees benefits to vote against Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, or any labor organiza- tion of our employees, in a Board election. WE WILL NOT threaten to close our plant, or otherwise threaten our employees with loss or impairment of employment, if in a Board election they choose Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, or any other labor organization of our employees, as their collective- bargaining representative. WE WILL NOT require our employees to wear, or give them the impression that they are required to wear, buttons bearing anti- union slogans. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection as guaran- teed in Section 7 of the Act, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DAVIS-CLEAVER PRODUCE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. DAVIS-CLEAVER PRODUCE COMPANY INTERMEDIATE REPORT 209 STATEMENT OF THE CASE Upon a charge filed by Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, herein called the Union, the General Counsel of the National Labor Relations Board issued an amended complaint in Case No. 14-CA-1826, dated October 15, 1958, against Davis-Cleaver Produce Company, herein called the Respondent, alleging that the Respondent had engaged 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, herein called the Act. The Respondent filed an answer on about October 17, 1958, in which is admitted the jurisdictional allegations of the complaint but denied the commission of any unfair labor practices. In Case No. 14-RC-3312, pursuant to a Decision and Direction of Election, an election was conducted on March 26, 1958, among the employees of the Respondent. On April 2, 1958, the Union filed objections to conduct affecting the results of the election. On June 18, 1958, the Acting Regional Director for the Fourteenth Region issued his report on objections to election, finding merit in objections Nos. 2, 3, 4, 5, 6, 8, 10, 11, and 12, and recommending that the election be set aside. On July 14, 1958, the Respondent filed exceptions to the Acting Regional Director's report. By order dated September 29, 1958, the Board directed that a hearing be held "to resolve the issues raised by [the Union's] objections 2, 3, 4, 5, 6, 8, 10, 11, and 12, and [the Respondent's] exceptions to the Acting Regional Director's report." By order dated October 10, 1958, the Acting Regional Director "consolidated for purpose of hearing" Cases Nos. 14-CA-1826 and 14-RC-3312. A hearing on the consolidated cases was held before the duly designated Trial Examiner at Quincy, Illinois, from December 2 to 6, 1958. After the conclusion of the hearing, the General Counsel filed a brief with the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Missouri corporation with its principal office and place of business located at Quincy, Illinois, where it is engaged in the processing, sale, and distribution of poultry, butter, and eggs. In the course and conduct of its business operations during the period of 12 months preceding October 1958, the Respondent caused substantial quantities of poultry, butter, and eggs, valued at more than $50,000, to be transported, sold, and shipped from its establishment at Quincl Illinois, to points outside the State of Illinois. The Respondent at the times material herein employed approximately 230 persons at its plant at Quincy, Illinois. II. THE ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, is -a labor organization which admits to membership employees of the Respondent. as. THE UNFAIR LABOR PRACTICES A. Background The Union began organizing the Respondent's employees during October 1957. Handbills were distributed by the Union to employees as they left the plant at the end of the workday. By letter dated November 7, 1957, the Respondent warned its employees against signing authorization cards of the Union, stating, "the record of the teamster and butchers' union is a record of strikes and disputes. The result has been the closing of many companies like ours because they were unable to sell their product with the demands of the union before them." On November 29, 1957, the Union filed a petition for an election among the Respondent's employees. A formal hearing on this petition was held on December 27, 1957 The Board's decision and order directing an election was issued on March 13, 1958 (unpublished). The election was held on March 26, 1958. Of approximately 221 eligible voters, 32 employees voted for and 176 employees voted against the Union Only five ballots were challenged 554461-GO-vol 126-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Supervisory employees Otto Wright is president and general manager of the Respondent . It is undis- puted that Cecil Godman, Arnold Weddendorf , William Hunter, Paul Longanback, and L. P. Krebs are supervisory employees within the meaning of the Act. There is a dispute concerning the status of Viola Carter , Leta Holler, Goldie Williams, Jesse Brashere , and May Ferguson, who are referred to in the record either as floorladies, floormen, or as group leaders. Foremen and leaders get paid holidays and paid vacations . Other employees do not receive these benefits . Leaders receive a higher rate of pay than other employees. Weddendorf is foreman over the eviscerating and raw boning department . Carter is the leader in raw boning ; and Frank Tate is the leader in eviscerating. On the average, 34 persons are employed in eviscerating , and 35 in raw boning. Longanback is the supervisor over the cooking and picking department. On an average, this department has 84 employees , as follows: picking, 5; cook-broth, 30; boning, 45; and labeling, 4. Brashere, Holler, and Williams are the leaders in cook- broth, boning , and labeling, respectively. The evidence discloses that the above leaders direct the work of and give orders to the employees in their section ; transfer employees from one job to another; grant employees time off from their work ; teach new employees how to perform the work; tell employees when it is time for the morning and afternoon rest periods ; reprimand employees and threaten them with discharge ; maintain daily time records and daily production records of employees which are turned in to the office ; and tell employees when to work overtime or on Saturday.' Employee McHatten testified credibly that she was present "several times" when Carter laid off employees; and that on one occasion Carter laid off employee Vera Reddick after "she only worked about a couple of hours ," telling her that she could not "do the work good enough" and "might as well go home." McHatten also testified that Carter hired five employees, one of whom was McHatten's mother. In this connection she testified that she asked Carter if she would hire her mother, Geraldine Koch, and Wilma Ham; that Carter replied, "Yes, tell them to come to work in the morning" ; and that about 1 week later Jenell Petri, Delores Willy, and Alvina Wilson "come prepared to go to work if they was hired one morning and I went in and told [Carter ] there was three girls out there wanted to work and Vi says, `Well , I am in here, if they want to work bad enough they will come in here,' so I went out and got the girls and Vi put them to work." Concerning the hiring of Koch and Ham, Carter testified , "Wanda Manhatten [sic] came to me and said to me, `Vi, my mother and another lady wants to come to work. If she comes down will you put them to work9' I said, `Wanda, I must check with Mr. Weddendorf first.' I go out and asks Arnold , he says go back and tell Wanda to bring them in the next morning That is what I did. . They were put to work." Carter did not testify concerning the hiring of Petri , Willy, and Wilson. The Respondent contends that group leaders do not have authority to hire or fire, or to effectively recommend such action. Aside from the above testimony of Mc- Hatten which stands undenied in part, the evidence clearly shows that group leaders had the authority to reprimand unsatisfactory employees and could effectively recom- mend discharge 2 I find that Carter , Holler, Williams, and Brashere are supervisory employees within the meaning of the Act. ' Employees Wanda McHatten , Viola Smith , Dorothy Preston , Bonnie Chase , and Mary Loop testified that their floorladies , Carter. Holler , and Williams , either selected them for overtime work or notified them of such work Concerning work on Saturdays, Carter testified : Well , if the whole room or the whole i aw boning department works, they all work. [In this case Carter posts a notice ] If only a few comes in, it is ordered by Mr Weddendorf . . . Mr Weddendorf tells me how many I should bring in and who. . . Then I tell the girls who he has picked to come in 2 In this connection Holler was questioned and testified as follows Q Did you ever tell some girls they would be laid off' A 'Myself, I can't do that Q I know , but you can recommend it" A. I can recommend it Q And when you do it is carried out, generally, they don't undercut you at this plants A. I don't try to go to them with too many (Footnote 2 continued on following page DAVIS-CLEAVER PRODUCE COMPANY 211 Concerning the status of Ferguson, Wright testified, "I wouldn't know whether you would call her a group leader, she made boxes." When asked if she directed the work of any employees, he answered, "If she needed to." Ferguson testified, in substance, that she was a boxmaker in the boxroom; that one other employee, Mary Ashton, worked with her "but not all the time"; that it was not necessary for her to direct Ashton's work, as "she worked right along with me. I showed her how when she came in", that she and Ashton issued uniforms to employees; that she was re- sponsible for taking an inventory of boxes and supplies in the boxroom; that at some- time during 1957 she acted as the floorlady in the labeling section during Williams' absence; and that at sometime after the election, and when Williams' employment was terminated, she became floorlady of the labeling section without any change in her rate of pay. Ferguson received a higher rate of pay then ordinary employees. She also re- ceived paid holidays and vacations. She kept daily time records for the boxroom which she turned in to the office. Before the election and starting about December 1957, the Respondent held a number of meetings which were attended by supervisory employees 3 Charles Meredith, executive vice president of the Industrial Association of Quincy, of which the Respondent is a member, conducted the meetings. Those present were instructed as to what they could and could not do with respect to the Union's organizing campaign and the coming election. In addition to Wright, admitted supervisors, such as Godman, Weddendorf, and Longanback, were present. Also attending were, Carter, Holler, Tate, Williams, Brashere, and Ferguson. I do not find that Ferguson at the times material herein was a supervisory em- ployee within the meaning of the Act The fact that she attended the supervisory meetings is not conclusive. The evidence shows that she at times directed the work of only one employee. Otherwise, there is no showing that she was considered to be a group leader or that she exercised the authority of a group leader. C. Events before March 13, 1958 On or about November 21, 1957, employee Mary Sawyer went to the plant to pick up her paycheck. She was told that Wright had her check with him in his office and that he wanted to see her. Wright asked her if she was "getting names or handing out pamphlets for the Union," and if she had "anything against the Com- pany." He told her that if the Union got in, "the plant would close down." It is found that Wright's interrogation and threat of reprisal constitute interference, restraint, and coercion. As stated above, the Union filed its petition for an election on November 29, 1957. During December 1957, the Respondent conducted an "Employee Survey Attitudes and Opinions." During working hours, Foreman Hunter sent the employees by de- partments into the "eggroom," where they were required to fill out a questionnaire. Although the questionnaire stated, "Do not sign this survey or any way to indicate who you are," four questions required entries in the handwriting of the employee. Other questions required an employee to disclose the name of his "supervisor," sex, approximate age, and length of service with the Respondent. Several questions in- quired into the union sympathies of employees, as follows: 20. I do not think we need a union in this plant because: (Chk several if you wish) I feel free to take grievances up with foreman-don't need out- side help. I feel that union organizers are just after my money. Q. But you select good ones, ones that have been doing a very poor job? A. That is right. Q And when it is recommended , you carry it out? A. As a rule Mr. Lotterbach [ sic] watches them himself. Q That is because you choose the one you recommend carefully and you don't recommend girls who do a good job because you try to do a fair job, don't you? A. That is right. 3 The above meetings were referred to in the record as the "supervisory " meetings. The record is not clear as to the status of a few of the employees who attended It appears that the Respondent's office manager was present. Holler testified that several "maintenance" employees and ITeckeiles Miller, a "clean-up man " attended In a pre- trial statement of Wright, which was received in evidence, Miller is identified as "in charge of the night maintenance crew " 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I feel that the management of this firm can do a better job of providing job security for me if left alone by outside union organizers. We would probably have a lot of strikes if we had a union. I feel I am getting fair treatment by management. I might lose my job if the union came into this plant-(Com- pany would probably cut out certain departments). Company is having a tough time trying to stay in business and a union could be the "straw that would break the camel's back." 21. I think we need a union in this plant because: They would improve working conditions in the plant. They would change the hours I have to work. They would handle grievances for me. They would get me a raise. They would make more steady work in my department. They would -------------------------------------------- (fill in your own comment) A letter dated February 15, 1958, was sent to all employees. This letter, signed by Wright, states in part as follows: We thought you would be interested in knowing how the tally on the recent survey in which you folks took part turned out in regard to the question con- cerning the union Your answers showed that over 75% of you folks will vote against the union in the election which will be held sometime in the future. It is found that the above conduct was violative of Section 8 (a) (1) of the Act in that the questionnaire interrogated employees concerning their union sentiments and sympathies and contained subtle threats to close the plant if it was organized by the Union. As pointed out in the General Counsel's brief, positive identification of employees was possible by reason of the questions noted above. On January 9, 1958, the Union held a meeting at the Labor Temple at Quincy for the employees of the Respondent. Foreman Godman attended the meeting and "took notes down." 4 The following morning Godman told Wright that he had attended the meeting. It is found that Godman was engaging in surveillance of the union meeting and that such conduct was violative of the Act. On the day of the union meeting McHatten and some other employees were dis- cussing the meeting to be held that night. Floorlady Carter told them that they should not attend the meeting as they might lose their jobs if they did.5 The fol- lowing morning Carter had on her desk a sheet of paper containing the names of a number of employees.6 Carter talked to a group of the employees, including McHatten, Bevins, Iwanski, Reddick, and Hurst. Carter told them that Floorlady Holler had told her that "I had more out of my department [at the union meeting] than anybody else." She asked them for the names of other employees who had attended the meeting. Some of the employees gave her more names. Carter then warned the employees that Wright would close the plant before he would let the Union in and that she did not want the employees to attend union meetings because it might result in their being laid off.7 It is found that the above interrogation by Carter and her threats of reprisal con- stitute interference, restraint, and coercion. McHatten testified credibly to the above Godman admitted that he attended the meeting, but denied that lie had any paper or pencil with him. His denial is not credited. 5 McHatten testified credibly to the above Carter denied the statement attributed to her Her denial is not credited There are a number of contradictions in her testimony itself and between her testimony and her pretrial statements ° Employee Nellie Bevins testified credibly that she and employee Patty Hurst had attended the union meeting on January 9, and that she saw their names on the paper McHatten testified credibly that she had attended the meeting, and that "Vi had our names on a piece of paper on her desk " 9 McHatten and Iwanski testified credibly to the above. Carter denied making the statements attributed to her. She testified, in substance, that during the morning after the meeting "three, or four, maybe five" came to her and told her that they had attended the meeting, and that she did not say anything in reply to them Her testimony is not credited DAVIS-CLEAVER PRODUCE COMPANY 213 During about the latter part of January 1958, Carter spoke to McHatten about a forthcoming meeting of the Union . Concerning this conversation, McHatten testi- fied credibly, "She told me I better not attend that one, she said the ones that did that Wright was going to have someone there who would know we was there and that we'd lose our jobs." Carter's statement is found to be violative of Section 8(a)(1) of the Act Employee Shirley Biesterfield worked in the cooking room and part time in the Respondent's office, performing general office work. Shortly after January 9, 1958, Floorlady Holler had a conversation with Foreman Weddendorf. Biesterfield was present at the time. Holler had a paper with "seven or twelve names" listed on it. She told Weddendorf that she had the names of some of the employees who had at- tended the union meeting. Holler and Weddendorf then discussed the employees who were named on the lists It is found that the above conduct of Holler and Weddendorf was violative of Section 8(a) (1) of the Act. During February 1958, McHatten had an argument during work with employee Ruth Wagner. The following morning McHatten was called to Weddendorf's office. Concerning her conversation with Weddendorf at the time, McHatten testified without contradiction, "He jumped me, said what is this I hear about you . . calling Ruth names and telling her off yesterday.... Ruth told me that you got her steel [used for sharpening knives] and when you took it back to her you told her that the steel didn't belong to her and that it belonged to Davis-Cleaver but some day it was going to belong to the union and you was going to be union steward and then it would belong to you . . . he told me that one thing certain was that the union wasn't coming in there and that I better get that out of my head right now." Later that same day Weddendorf laid off McHatten because of her argument with Wagner, telling her, "I'm going to lay you off until Monday and I want you to go home, I want you to get the grudge off of your chest about Ruth Wagner and I want you to certainly forget about this-union." In my opinion, Weddendorf's statements amounted to unlawful interrogation of McHatten concerning her union sympathies. I also find that his statement at the time of her layoff constituted a threat of reprisal. For these reasons I find that the above statements of Weddendorf were violative of Section 8(a)(1) of the Act. Employee Viola Smith testified without contradiction that during February 1958, she went to the office of Supervisor Hunter in order to borrow some money against her wages; that Foreman Weddendorf was present at the time; that Hunter asked her, "what do you want it for, to pay your union dues"; and that she had borrowed money from the Respondent before without questions being asked. I make no finding in this connection since Hunter is not mentioned in the amended complaint. D. Events after March 13, 1958 Employee Bevins testified credibly and without contradiction that at sometime within the period of 2 weeks before the election she was present when employee Eve Harden told Wright that she wanted to borrow some money to pay some bills; and that Wright told Harden she could have the loan but "not to forget him when the election came up." I find that Wright's statement to Harden was violative of Section 8 (a)( I) of the Act. Concerning an incident involving Floorlady Holler on March 22, 1958, employee Viola Smith testified credibly, "She [Holler] came into the cooking room that morning, and one of the girls says to her, said what about the voting for the election. [Holler] said, `Well, I don't know,' she said, `but you better vote right, because if you don't,' she said, 'Mr. Wright is going to close the place down.' . [employee] Lillian Easton . . . said, `Oh, I don't believe that. . . .' Then Leta Holler says he is not kidding." 9 I find that Holler's statements constitute interference, restraint, and coercion. 9Biesterfield testified credibly to the above. She also testified that she believed that Floorlady Carter came into the office "later on" during the conversation ; and that she (Biesterfield) thought but was not "sure" that Carter made a statement to the effect that the employees in her section were not the only ones who attended the meeting Since Biesterfield was not positive in her testimony, and her answers were in response to lead- ing questions. I make no finding in this connection Holler and Weddendorf denied the above incident Their denials are not credited There are a number of contradictions between Hollers testimony and her pretrial statement. Further, her testimony conflicts with the testimony of other witnesses for the Respondent Weddendorf's testimony is discredited hereinafter 9 Holler denied the above statements attributed to her. Her denial is not credited. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Effie Baker testified that during the recess at 9:30 a.m. on the day before the election Weddendorf called together about 75 employees from the eviscerating and raw boning sections in the lunchroom of the plant; and that Weddendorf told the employees that they would be "without a job" if the Union organized the plant. Bevins testified that during the morning recess on the Monday or Tuesday before the election Weddendorf spoke to the assembled employees in the plant's lunchroom; and that Weddendorf "told us that Mr. Wright had it made and that he didn't have to worry whether the plant stayed open or closed, that he, Arnold, and Vi [Carter] and the employees depended upon it for their living and that Mr. Wright had just taken orders enough to run us up to the time that we voted on the union. . . . If the union went in the plant would be closed." Employee Jesse Hederick, called as a witness by the Respondent, testified that on a day she could not recall Carter told the employees at recess time to go to the lunchroom because Weddendorf wanted to talk to them; that Weddendorf said "that we wanted to remember that Mr. Wright had been good to us and that our job depended on his goodness, and we should vote, everybody vote and vote the way we wanted to"; that Weddendorf "might have said we have a job now but we don't know what we will have if the union gets in"; and that she did not recall Weddendorf making any comments about cost of production and company expenses. Floorlady Carter testified to the effect that during the coffee break on the Thurs- day or Friday before the election she and some employees went to the lunchroom; that Weddendorf entered the lunchroom later and talked to her, complaining that the cost of production had risen the previous day; that she then said, "Girls, listen, Arnold has something to tell you"; ,and that Weddendorf did not start talking imme- diately after he arrived in the lunchroom, as "he was sitting there drinking a cup of coffee." 10 Weddendorf admitted making a speech to "some" of the employees, but places it on the Friday before the election." He denied that he told the employees that if the Union came in they would be without jobs. He testified that no "invitation or notice" was given to the employees; that he read his speech from a piece of paper; and that I told them it was very hard to make money in the production business and that we had to do a good job in our boning department because we had to get our costs down as low as possible so we could meet competition. I mentioned the coming union election and I said that in case the union got in, there would be controversy between the management and the union and there would be strikes, there might be a strike. And that in case there was a strike there wouldn't be any work, we would all be laid off, me included. I couldn't afford to be laid off in case of a strike. There wouldn't be any employment compensation paid . . . . Weddendorf further testified that during his speech he referred to "two plants in my home town in Minnesota" which had "closed up," and that he did not tell the employees why the plants had closed 12 I credit the above testimony of Baker and Bevins, and find that Weddendorf's statements were violative of Section 8(a) (1) of the Act since they contain threats of reprisal. It is to be noted that Hederick's testimony tends to corroborate that of Baker and Bevins, and conflicts with that of Carter and Weddendorf. For ex- ample, Hederick testified that Carter directed the employees to go to the lunchroom because Weddendorf wanted to talk to them. Weddendorf testified no "invitation "The above testimony of Carter conflicts with statements in her affidavit. Concerning this same incident she states in her affidavit, "I was at the meeting which Arno Weddendorf held for the employees in the eviscerating room and law boning room. The meeting was held in the lunch room at the plant. I don't remember the day or a rest period. I don't remember whether it was morning or afternoon I got to the meeting late and when I got there Arno was already talking I don't remember what he said. To the best of my knowledge he didn't call this meeting The girls were just up in the lunch room drinking coffee and lie came up and started talking " 11 The Respondent admits in "Management's Exceptions to Field Examiner's Report" that the speech took place on Monday, March 24 12 In his affidavit Weddendorf states, "I told then about the plants which had closed up in this territory and that Davis-Cleaver was the only produce firm left around here." During his testimony Weddendorf testified that he did not recall making this statement. He admitted it when confronted with his affidavit DAVIS- CLEAVER PRODUCE COMPANY 215 or notice" was given to the employees. Accordingly, I do not credit Weddendorf's version of the speech made to employees on or about March 24. Employee Alice Webber testified that on about March 24 or 25, Floorman Brashere talked to her and employee George Baker; and that Brashere said, "If the union got in that the plant would be closed because Mr. Wright had cancelled all orders and was prepared to close down within a matter of days if the union got in." Baker, called as a witness by the Respondent, denied the statement attributed by Webber to Brashere. Brashere denied the statement attributed to him by Webber, and denied having any conversation with her "concerning unions, the election or voting in the election." He testified that Wright told him at a supervisory meeting that it was up to him to talk to the employees under him about the Union, and that he told the employees "there might be a possible chance of layoff in case the union was to get in because of Mr. Davis' [death], and we didn't know exactly how the thing would go and more or less that I was more or less informed and under a broad expansion like we are under now, we didn't think we could meet the union's demands." During cross-examination Brashere was questioned and gave answers as follows: Q. What reason did you give your people that the union would cause a layoff? A. If we could meet demands of the union and terms, or in case of a strike we're out. Q. You told them if there was a strike they would be laid off? A. Well, sure, in case of a strike there would be. Q. In case of a strike they would all be laid off, is that what you told them? A. I didn't say anything about a strike. Q. Mr. Witness, I am trying to find out what you said to them. You talked to them about a'layoff, is that right? A. I said in a possible sense there might be a layoff. Q. If the union came in? A. That's right. Q. Now, what reason did you give them to support this statement. A. Well, the way it was given to me that they couldn't operate with the union in. I credit the above testimony of Webber, and find that Brashere's statement consti- tutes interference, restraint, and coercion. Baker admitted that he had had con- versations with Webber, testifying, "nothing more than just the normal conversa- tion before the election come up. We just passed different opinions, that is all." There are a number of contradictions in his testimony. At one point he denied talking to anyone about the Union. He then admitted that he had discussed the Union and the coming election with 'Floorlady Holler, Floorman Brashere, and employee Wayne Rose. Baker did not impress me as a reliable or credible witness. Brashere denied talking to Webber about the Union or the election. He then went on to testify that he had talked to the employees about this subject; and his testi- mony in this respect is similar in content to the remarks attributed to him by Webber. Accordingly, I do not credit his denials. Employee Don Lair testified credibly that he had a conversation with Brashere on March 24 or 25; that Brashere told him to vote "No" at the election; and that if the Union got in, Wright would have to close the plant. Brashere denied the statement attributed to him by Lair. His denial is not credited for the reasons set forth above. It .is found that Brashere's statement is violative of the Act. It has been found above that Ferguson was not a supervisory employee within the meaning of the Act. It is undisputed that she attended union meetings held on March 24 and 25. There remains the issue of whether or not there is sufficient evidence in the record to hold that she acted as an agent of the Respondent. McHatten testified that she attended the union meeting held on March 24; that she met Ferguson there; that after the meeting she and Ferguson went to a restaurant; that when Ferguson left she got into a "long black car" that had stopped in front of the restaurant; and that she was unable to see who was driving the car 13 McHatten further testified that she went to the union meeting the following night but arrived late; that she met Ferguson in front of the building where the meeting was held and offered to drive her home; that Ferguson refused her offer, stating that she was "waiting on someone"; that she saw Ferguson get into "the same car or looked like the same car" that had picked her up in front of the restaurant the night before; is Ferguson admitted going to the restaurant with i\icHatten, but denied that she got into a car when she left She testified that she walked hone 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that shortly thereafter this same automobile passed in front of her as her car was stopped at a street intersection ; that the man driving the car "looked like" Wright; and that she recognized the other person in the car as Ferguson. Ferguson testified that she met employee Vera Reddick at the union meeting held on March 25; that after the meeting Reddick drove her home in her car, together with two other employees; and that she did not leave her home again that night. Reddick, called as a witness for the Respondent, testified that as she left the union meeting held on March 25 she offered Ferguson a ride home; that Ferguson accepted, saying, "I thought I was going to have a ride; my ride never came"; and that she then drove Ferguson and several other employees to their homes. I credit the above testimony of Ferguson and Reddick, and find that the General Counsel has failed to prove that Ferguson was acting as the agent of the Respondent. Employee Mary Loop testified that she worked in the labeling section; that 1 or 2 days before the election she had a conversation with Floorlady Williams; and that "Williams told me that she believed if the union got in the plant would be closed. . She also said there would be no orders taken 'til after the election and if the union got in there would be no more orders anyway." Williams denied the statements attributed to her by employee Mary Loop. She testified that she never talked to any of the employees in her section or heard any of them talk about the Union or the coming election; that she went to the supervisory meetings; that the Union and the coming election was not discussed at such meetings; and that she had refused requests by the Union to appear and testify at the hearing herein because she did not want "to be involved" against Wright I credit the above testimony of Loop and discredit Williams' denial. Williams did not impress me as a reliable or credible witness. Since Williams' statement of Loop contains a threat of reprisal, I find it to be violative of Section 8 (a)( 1 ) of the Act. It is undisputed that during work and before 8:30 a.m. on March 25 Wright made a speech to the assembled employees in the cooking room. Concerning this incident, Sawyer testified that on March 24 or 25 when Wright came into "the cooking and boning room" he asked Floorlady Holler to assemble the employees, and that, "He said half of the vote would go to the union and half would go to the company.. . He said if the union got in the plant, it would be closed down." Employee Dorothy Preston testified that she worked in the "cooking room" under Holler; that Wright spoke to the employees in her department on the day of the election, telling them to vote "No" at the election; and that he said that "he wanted us all to vote, that if anyone didn't, it would mean a half a vote for the union." Lair testified that on the day of the election, March 26, he was working in the "cooking room" under Holler; that "they called us in" to the "boning room" where Wright made a speech; and that he did not hear what Wright said because the employees "were all grouped around him and I was in the back." Webber testified that she worked in the "cooking room" under Holler; that during the morning of the election Wright came in to the "cooking department" and made a speech; that the employees "gathered around" him "more in the center" of the department; that he said that "everyone should vote, that if we didn't vote it would mean a vote to the union"; and that she could not remember whether or not he said "if the union got in the plant would be closed." Bevins testified that she worked in the "raw boning department" under Carter; that during the morning of the day of the election Wright made a speech to the employees "in our department"; and that he said "in a few minutes we would be voting. . . The way that we voted would mean whether the plant would stay opened or closed." Wright testified that he made a speech to the employees in the "cooking room" on the Tuesday before the election; and that "I don't recall exactly what I told them, but in substance I told them that there had been . heard that there was some people that said that they weren' t going to vote and . 2 wanted to remind them that if they did not vote it would be like voting for half a vote for something that they would not want " 14 Wright testified that he may have been but did not recall being in the "cooking room" the day of the election. He denied making a speech to the employees in that room on that day. Carter testified that Wright did not make any speech to employees "in my depart- ment" (raw boning) during the week before the election. Employee Bessie Ketter, a witness called by the Respondent, testified that she worked in the "cooking room"; that Wright did not visit the cooking room during the morning of March 26; that Wright did not make a speech in the "cooking room" in the morning on the 14 Holler testified that she did not "remember" whether or not Wright made a speech in the "cooking room" (on March 25). DAVIS-CLEAVER PRODUCE COMPANY 217 Monday or Tuesday before the election ; and that at the time of the election "I was working on what they call the raw boning . to one side" of the cooking room. Wilma Green , also called as a witness by the Respondent , testified that she worked in the "cooking room"; that Wright made a speech "to the whole crew" shortly after they started work during the morning of March 25; and that she did not recall what Wright said "other than he told us when the election would be and that he wanted everyone to vote." Mary McIntosh, called as a witness by the Respondent, testified that she worked in the "cooking room"; and that she did not remember whether or not Wright made a speech in the cooking room during the few days preceding the election or on the day of the election. Employees Susy Hurst, Flossie Lindsay, and Jesse Hederick worked in the raw boning section under Carter . Hurst, Lindsay, and Hederick, called as witnesses by the Respondent, each testified that Wright did not make any speech in the "raw boning department" on or about the time of the election. As will be noted from the above, the record is in a confused state concerning a speech or speeches given by Wright. In my opinion, the confusion arises in part due to the fact that the witnesses testified to the date of the speech in answer to leading questions propounded by counsel. After a careful review of the record in this connection, I am convinced and find that Wright made one speech in the cooking room on March 25, the date testified to by Wright. Sawyer, Preston, Lair, and Webber, witnesses called by the General Counsel, all worked in the boning section under Holler. Bevins, also called as a witness by the General Counsel, worked in the raw boning section under Carter.ls Accord- ingly, Bevins is the only witness who testified that Wright made a speech to the employees in the raw boning section on the day of the election . This is denied by Carter, Hurst, Lindsay, and Hedenck. Under the circumstances, 'I find that the General Counsel has failed to sustain the burden of proving that Wright made a speech in the raw boning section on March 26.16 I credit the above testimony of Sawyer, Preston, Lair, and Webber, excepting that I find that the speech was made on March 25. It is found that Wright threatened to close the plant if the Union prevailed, as testified to by Sawyer; 17 and that this statement was violative of Section 8(a) (1) of the Act. Shortly before the election the Respondent posted placards in the plant and dis- tributed buttons to the employees . Both solicited a "No" vote against the Union; and contained slogans, some of which were as follows: There's no substitute for a steady job! Have job, working steady? It's good to be working! There's no day like pay day! Over five million people are worried! Either a person is 100% loyal or completely disloyal' There's no recession here! Holler distributed the buttons during work to the employees in her section during the morning of March 25 . Concerning the distribution of the buttons by Holler, Webber testified that Holler offered her a button, saying , "You want one?"; that she accepted a button without answering ; that Holler offered a button to Lair; and that when Lair refused to accept a button, Holler either said "all right for you" or "too bad for you." Preston testified that Holler had the buttons in a "little box"; that Lair refused to accept a button; that "I heard [Holler] make the remark to [Lair], if that's the way you feel about it, you don't have to wear one , or something to that effect"; and that she saw Holler pin buttons on some of the employees.16 Employee Helen Baldwin testified that Holler told her and some other employees "to put the [buttons ] on where they could be seen ." Sawyer testified that Holler 15 As noted above , the raw boning section is in the eviscerating and raw boning depart- ment, and the boning section is in the cooking and picking department 111 I evins impressed me as a credible witness 17It is to be noted that Wright did not deny categorically making the above threat Nor was the statement denied by Green , the only other witness for the Respondent who testified concerning the speech 18 It was stipulated by and between the parties at the hearing that if Lair were re- called in rebuttal , "he would testify substantially the same as Dorothy Preston who is identified in the record as his mother concerning . statements made to him by Leta Holler on the offer or tender , or alleged tender or offer of a button , that he made to her substantially the same statement reported by Dorothy Preston " 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked her if she wanted a button; that although she did not want one, she accepted it and pinned it on; and that Holler gave buttons to other employees. Holler denied telling the employees to pin the buttons on where they could be seen or that she made individual offers of the buttons to any employees . She also denied making the statement to Lair which was attributed to her by Preston. Con- cerning distribution of the buttons Holler testified as follows: They were brought to me, I can 't recollect what morning it was, and I passed them down the line. We have a belt that runs where the boning table is and I put them on the line. And I told the girls, "Here girls are some buttons, take one if you want to." And then after they got to the end of the belt I had taken them off and passed them on the inspection , there is an inspection belt. Then, I took them back onto the back and I sit them on a rack that we have for our pans back there , I sit them back there. McIntosh testified that Holler had a box of buttons and "passed it around"; that Holler did not start at one end of the line and go to the other end; and that Holler "just stood at one end [of the table] and we all took one." I credit the above testimony of Webber , Preston, Lair, Baldwin, and Sawyer. Holler's denials are not credited. Carter distributed buttons to the employees in the raw boning section during the morning of March 25 . Bevins testified that Carter had the buttons in a box "and some of the girls went and got some "; that Carter came to her place of work and told her to take a button ; that she told Carter that she did not like any of the buttons in the box; that when Carter replied , "You'd better take one of these [buttons]," she took one and pinned it under her apron ; that later when one of the employees made a comment about her button, Carter returned and told her to pin the button where it could be seen; that she took the button off and told Carter to pin it on her; that Carter then pinned it on her where it could be seen; that Carter brought the buttons to some of the employees at their place of work; and that other employees got buttons from the box when it was on Carter's desk. Effie Baker testified that Carter had the buttons in a box; that Carter "came around and told everyone of us to take one and put it on and wear it"; and that Carter "stood there until we put them on." Iwanski testified, "I heard [Carter] say that we were all to have a button and we were to wear them where they would show and we had to wear the buttons . . . I heard her tell [Bevins ] she should wear her pin where it would show because she had it where it wasn't showing " Iwanski further testified that Carter came to her place of work with the box of bottons and told her to "take one." Carter denied the alleged incident involving Bevins, and that she took the buttons to the employees. She testified that she placed the box of buttons on her desk; the employees came to the desk and got one; 19 and that "just once" she stated "you don't have to take one if you don't want to." Hurst testified that the employees got the buttons from a box on the desk ; that Carter told her and some other employees that they did not have to wear the buttons if they did not want to; and that nobody brought the buttons around to the employees . Lindsay testified that she and Bevins worked at the same table with employee Ruth Wagner working between them; that Bevins took a button and put it in her pocket ; that Wagner said to Bevins , "Are you ashamed to wear it? . Why don't you pin it on your dress or apron, what are you going to do, pin it on your lace curtain ?"; 20 and that Carter neither said nor did anything with respect to Bevins ' button Hederick testified that she heard Carter say, "You are not obligated to wear [the buttons ] if you don't want to"; and that she got her button from the box on Carter's desk. I credit the above testimony of Bevins, Baker, and Iwanski. As noted above, Carter's testimony conflicts with the statement in her affidavit. It is to be noted that this statement supports the testimony of Bevins, Baker, and Iwanski concerning the method used to distribute the buttons , and conflicts with the testimony of Hurst on this subject. Keeping in mind the direct threats to close the plant if the Union won the elec- tion, heretofore and hereinafter found, it is clear that the slogans used on the 19In her affidavit Carter states, "[the buttons ] were setting on my table or desk approximately 2 or 3 days before the election . I picked one up and pinned it on myself . . . Some girls called from their tables 'Hey, I want one ' I answered , 'Well, they're in the box ' The girls said bring them down here So I took the box around and the girls took them out of the box I told them they didn't have to take them." 20 Wagner did not appear as a witness at the hearing. DAVIS-CLEAVER PRODUCE COMPANY 219 buttons and placards were calculated to engender a fear among the employees that they might suffer loss of employment if they voted for the Union. I do not find, however, that the slogans per se were violative of the Act. I do find that the Respondent by its method of distributing the buttons coerced and intimidated the employees into wearing them. For an employee to fail and refuse to wear a button was unmistakable evidence of his proumon and anticompany sentiments. This amounted to surveillance and interrogation of employees as to their union sympathies. As the General Counsel points out in his brief, "For to refuse to wear a button would be an open admission of proumon sympathies; and yet to be forced to wear one, restrains employees in their rights to refrain from any and all union activities. There is no real distinction between refusing to sign an anti- union petition circulated by supervisors (clearly unlawful) and refusing to take or wear an antiunion button distributed by management. Both are equally restrain- ing and coercive." For the above reasons, I find that the Respondent in the dis- tribution of buttons to its employees violated Section 8(a) (1) of the Act. Holler made a speech to the employees in her section in the lunchroom of the plant during the lunch hour on March 25. She gave notice of the meeting to the employees before the lunch hour began. Concerning Holler's speech, Preston testi- fied, "Well, it was a very short speech. She made the remark that it was more serious than we knew and that they had orders up until April and that they weren't taking any more until after they seen how the election came out, that if the union was in, Mr. Wright said he would close the plant." Bonnie Chase testified that Holler said that if the Union got in, the plant probably would shut down; that "she said that she wasn't telling us how to vote, but that it would be 'a good idea if we voted against the union"; that all that the Union wanted was the employees' money; and that the employees would be better off to use the suggestion box because Wright would see to it that they got what they wanted. Alice Fielding testified that Holler told the employees to vote "No" at the election; that Holler said, "if the union got in Mr. Wright wouldn't be able to keep the plant open"; and that Holler told them that if the Union won the election, the employees with the most seniority would get the easier jobs and other employees would get "the toughest work." Helen Baldwin, called by the Union as a witness, testified that Holler said that she had heard a rumor that she was supposed "to prosper if the Union did not get in"; that Holler denied the rumor; that Holler said that if the Union got in, the plant would shut down; and that Holler said that if the Union got in "the older women wouldn't have a job." Concerning her speech, Holler was questioned and testified as follows: Q. What form of an announcement or invitation, if any, was made to them to attend your remarks? A. Well, it was approximately 11:30, we take lunch hour from 11:30 to 12:30, and Mr. Wright had asked me to talk to the girls of the coming elec- tion, so I asked them all to come back early a few minutes at noon and I would like to talk to them. Q. Did they all come back? A. Well, I couldn't say definitely. Q. With respect to those remarks that you made, what do you recall that you said? A. Well, it was approximately 12:20 and I told them I wasn't much of a speech maker. I told them Mr. Wright asked me to talk to them in regards to the election that would be held at the plant and told them where it would be held and I told them that Mr. Wright didn't know whether he would be able to operate under circumstances if they should come in. And I also told them that Mr. Wright would like for each and every one to be there and vote and I told them that I was interested in my job as well as, I wasn't interested in their job as I was for myself. And let's see- Q. (Interrupting.) Can you think of anything more? A. Oh, some people had made remarks that Vi Carter and I would profit greatly if the union didn't come in and I told them that we couldn't profit one bit if they don't come in. Q. (By Mr. Schoonhoven.) I will repeat the question. Do you recall saying this or to this effect if the union gets in and gets all that is promised you employees, Mr. Wright probably couldn't operate the plant? A. I just don't remember that. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other than the above, Holler denied the statements attributed to her by Preston, Chase, Fielding, and Baldwin.21 Green testified that she was present when Holler made her speech in the lunch- room; that she did not remember what Holler said "other than she told us when the election would be and she wanted everyone to come that day and to vote"; and that she did not recall Holler saying that the plant would close if the Union got in. McIntosh testified that she heard Holler's speech; that "We weren't invited [to the meeting], it was just everybody talks in the lunch room after we eat and [Holler] said she had a few words to tell us"; that Holler told the employees "to be sure to be there tomorrow and vote"; and that "she said that if the union would get in under, if they demanded too much she was afraid Mr. Wright would not be able to compete with their demands." I credit the above testimony of Preston, Chase, Fielding, and Baldwin; and find that Holler's threats of reprisal and promise of benefit were violative of Section 8(a)(1) of the Act. I do not credit Holler's denials or the testimony of Green and McIntosh in this connection. It is to be noted that the testimony of Green and McIntosh conflicts with that of Holler. Lair testified credibly that about 3 p.m. on March 25 Holler called him into her section,22 and that "she told me to vote 'No' on account of Mr. Wright would have to close the plant and she also said if the union got in Bill Preston [Lair's stepfather] and I wouldn't have a job." 23 Holler denied the statements attributed to her by Lair. Her denial is not credited. It is found that Holler's threats of reprisal consti- tute a violation of Section 8 (a) (1) of the Act. Preston testified that on March 26 just prior to the time when the employees in the boning section were scheduled to vote she overheard Holler tell employee George Baker, "the ballots were marked, that we are not as dumb as they think we are"; and that other employees were present at the time. Concerning the same incident, Webber testified, "She [Holler] was talking to George Baker . .. she was telling him that our names would be taken as we went in to vote and she made the remark that `We are not so dumb, the ballots are numbered."' Holler admitted that she lined up the employees as they were ready to vote, but denied the statements attributed to her by Preston and Webber. George Baker testified that he did not hear Holler make the statements attributed to her by Preston and Webber.24 Employee Mary Ballinger testified that when she lined up for voting, Holler was "at the front of the line"; that she was about 6 or 7 feet from Holler at the time; that Holler told the employees "be sure and vote, that was what we were in line for"; and that she did not hear Holler make any other remarks. Ballinger denied the statements attributed to Holler by Preston and Webber. I credit the above testimony of Preston and Webber; and find that Holler's state- ment constitutes a threat of company surveillance of the voting. As such it is found to be violative of Section 8(a) (1) of the Act. Both Holler and Baker have been discredited heretofore. There is nothing in Ballinger's testimony to indicate that she was present when Holler spoke or had a conversation with Baker. The Respondent admits sending letters signed by Wright to its employees on March 19, 20, 21, and 22 and two letters on March 24, 1958. The letter of March 19, 1958, states, inter alia: It is difficult to stay in business today and it has been hard for some years-I guess that we should feel lucky that we have weathered the storm so far. We have heard of three poultry plants that were organized by the Meat Cutters Union that have closed, and buildings are just setting there vacant-no one has a job there, not even a night watchman. Now if the Union was such a good thing for those workers why did their employers go out of business and why didn't the organizers come forth and ii There are a number of contradictions between Hollor's testimony and statements in her affidavit In her affidavit she states in part, "I did tell the girls in the lunch room that we didn't know how the Company would operate or how things might turn out with overything I did not mention the union I didn't tell the girls that T wanted to meet with them, we were just all up in the lunch room. . . . It was a conversation between us girls" 22 Lair worked in the cooking room under Holler However, the record indicates that lie may have been working in the "boning room" at about this time z9 As related and found above, Lair refused to take a button from Holler during the morning of March 25 24 During the hearing the Trial Examiner noted and the record shows that Baker was very hard of hearing DAVIS-CLEAVER PRODUCE COMPANY 221 give the unemployed workers money to live on or else buy the building and start the plants up again so the workers would have a job? . It has been tough enough trying to provide steady work without having to deal with a bunch of outside organizers like operate most unions. YOU can vote NO, and save your money because you know that you can tell management about the things you want and they will do their best to give these things free. . If times get a little better in the future additional benefits will be added-again for free. .. . The letter of March 20, 1958, states, inter alia: . . We now know that the majority of the employees at that time really didn't want the union and we don't think you want it now. We know you want us to, stay in business. .. . The letter of March 21 , 1958 , states, inter alia: A lot of you folks have come to the office and some of you have asked me in the plant about how business conditions look for the future and whether or not I thought we could keep going as well in the future as we have gone in the past. I have had to tell each of you that I do not know how business will be even a month from now. I keep my fingers crossed and hope for the best for all of us. Most plants here in Quincy and in other nearby towns have had lay-offs and short work weeks for sometime now. It is tough for us to get orders into our plant because of the competition of the big plants who, due to their new modern plants, have lower costs than we do. We do not have the money nor can we borrow enough to build a new plant which will let us compete to the best advantage with the big packers. I guess we are lucky to stay in business at all. . Therefore, the only promise we can make is that we will do our best to give you as full employment as is possible in the future. If we continue to be able to supply our customers on time , I believe that we can continue to operate at least to some extent in the immediate future. If we have strikes I cannot tell you what our future will be because we stand a good chance of losing our customers to some big plant and probably will not get them back... . Remember if the union and outsiders will leave us alone we think we can give you full employment in the future. If pressure by the union would cause this plant to shut down, all that the union organizers would lose would be your dues , fines and assessments. But you as individuals would lose your paycheck... . The letter of March 22, 1958 , states, inter alia: Some time ago you folks were asked to help management by filling in a survey form. You were told that action would be taken on your requests as fast as it was possible to do so consistent with our ability to pay for things. Now, let's look at the record-it speaks for itself:- (1) You folks asked for a dining space. Your request was granted for free- not with just one room, but two rooms. You have told us "thanks" and we certainly appreciate your comments. As soon as we have the money we will add additional facilities. (2) You folks asked for additional rest rooms. Your request was granted for free; we added more stools. (3) You folks asked that existing rest rooms be cleaned up. Your request was granted-for free. We painted up all the rooms, or are in the process of painting. We put in new metal coat-racks. We took out some old wood racks. We added additional facilities to the rest rooms. (4) You folks asked for a suggestion system to be put into effect. Your request was granted-for free. You have a chance to win absolutely free many valuable pieces of merchandise . We need your ideas very much right now. Business is tough to get hold of at a price that we can break even on. Remember it didn't take a union organizer from the outside to get the above benefits for you for a price-you got them for free. Future benefits will be for free also. You have made some requests to us as to plant improvements- working conditions-fringe benefits-etc Your requests in regard to these will be granted as fast as we can find the money to do them. Right now we feel lucky if we can hold our heads above water. Your main concern right now of course is a job so that you can pay rent, buy groceries, make payments, etc 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Your main concern is not about fringes (holiday and vacations, etc.) Our main concern is like yours-we want to keep the plant open. Outsiders would like to see us have trouble-and the union fits into this plan very well. If we have trouble, other firms will be working their plants, and our plant will be idle. There doesn't seem to be enough business in the county today to keep all of the employees busy who want to work. (Five million unemployed.) If you are depending upon your paycheck from Davis-Cleaver to pay your bills each week we believe you will agree that it's just good business for you to do everything possible to help keep this plant going and protect your job. The first letter of the two letters sent on March 24, 1958, is very brief; however, the attachment thereto, which is composed of statements in question-form, states, in ter alia. THINK-LOOK AT THE VOTE YES NO No. 2. Can any labor organizer furnish you a job? q 9 No. 4. Has any labor organizer ever furnished job security? q 9 No. 15. Would the union loan us any money if we got into serious q p trouble as a result of their demands and had to close our plant? No. 17. Do the union organizers know how much a firm has avail- q qQ able to spend for wages, etc., and still stay in business? The Respondent held a free banquet at the plant for its employees at 8 p.m. on March 24, 1958. Wright made a speech to the employees present in which he said in part as follows: I have seen 39 plants start up and were operating in this same kind of business. Do you know that today there are only seven of these plants still in operation-the rest are out of business because they apparently didn't know how to meet the tough competition that there is in this kind of business. I think that you should also know that there is only one plant out of this seven who have a union contract and they are not operating on a year round basis. . The first [section of my speech] is called "Here's What You Have Now-Job Security." .. . To make it real plain, other companies such as our own that were operating through this territory in the past 30 years or more have been besieged with outside influence, by unions, and so forth, trying to tell them what should or should not be done for the employees. They are out of business today, and only Davis-Cleaver in this immediate vicinity in our line of business has gone ahead with the changing times and conditions, and we are now affording jobs to three or four times the number of people we were able to give jobs to twenty years ago. . Getting back to job security-Most of you folks know what the job situation is around Quincy and other parts of the country. Just where would you go for a job if Davis-Cleaver were to quit business or have the business so ham strung that it wasn't possible to continue . You have Company officers who work hard everyday to try to keep the plant going so we will all have jobs. You have Company officers who have kept the financial conditions of this firm in good shape over a long period of years so that the credit of this firm has been kept good-This results in steady jobs for all. You have Company officers who understand the changing business world that we are in and who have been able to shift with it with the result that the business has been kept going even though some 32 other firms in the past 33 years have had to quit business. The second part of my talk is entitled "Here's What You Can Have in the Future." Now let us consider the situation that would happen if we had an outside union here in this plant telling us what we could do and what we could not do-telling not only us but you folks as well what you couldn't do and what you could do-You would go home with no work or you would go home with some work performed . It is my frank opinion that with a union in this plant we could not continue to meet the competition we have today and stay in business . This plant has provided jobs week after week for people in this com- munity for 78 years without a business failure. Only seven other plants in this area can boast of a similar record. Only one of these produce plants is union- ized and it does not give its employees year round employment. In the third part of Wright's speech, he read previously prepared questions and answers to the assembled employees. These included the following remarks: MAYFAIR INDUSTRIES, INCORPORATED 223 . We think if the Union leaves us alone we can keep all of our present employees whether they are 16 or 76, as long as they want to stay with us. .. . We have given our employees steady employment. . . . . Personally, I think most of you would rather have work year round. . . . All of you know the fine record our Company has for steady work . . . everyone is kept fully employed. . In recent weeks not nearly so many people have been walking off the job or leaving us shorthanded because they appreciate the steady work here in the face of unemployment elsewhere. I promise you we will continue to make improvements as fast as we can find the money to do them with. This would include vacations, holiday pay, pay increases, etc. . . . . . Improvements you have gotten in the past have been for free and the improvements in the future can be for free.. . . As in the case of the slogans on the placards and buttons, the above letters and speech contain veiled and subtle threats of reprisal if the Union won the election and implied promises of benefit if the Union lost. It was part of the Respondent's campaign to instill fear of loss of employment if the employees voted for the Union. In my opinion, such conduct on the Respondent's part substantially and materially interfered with the employees' free choice at the election, and I so find The import of these slogans, letters, and speech must have been clear to the employees in view of the numerous acts of unlawful conduct by Respondent's officers and supervisors found herein. While I find that the above conduct interfered with the election, I do not find that the letters and speech were violative of the Section 8 (a)( I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section :III, above, occurring in con- nection 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. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Union 431, is a labor organization within the meaning of Section 2(5) of the Act 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (I) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication. ] Mayfair Industries, Incorporated and Sheet Metal Workers International Association, Local Union No. 21, Petitioner. Case No. 15-RC-2071. January 19, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before C. Dale Stout, hearing of- 126 NLRB No. 35.