James Lees and Sons Co.

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Lees and Sons Company and Textile Workers Union of America, AFL-CIO-CLC, Petitioner. Case No. 5-RC-3018. February 15, 1961 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was held on March 16, 1960, under the direc- tion and supervision of the Regional Director for the Fifth Region among the employees in the unit described below. Upon the conclusion .of the election, the parties were furnished a tally of ballots which showed that, of approximately 2,175 eligible voters, 2,097 votes were cast, of which 316 were for, and 1,674 were against, the Petitioner, 100 ballots were challenged, and 7 ballots were void. Thereafter, the Peti- tioner filed timely objections to conduct affecting- the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation, and, on May 13, 1960, issued and served upon the parties his Report on Objections, attached hereto, in which he found that certain objections raised substantial and material issues with respect to conduct affecting the results of the election and recommended that these objections be sustained, that the election be set aside, and a new election ordered. As to the remaining objections, he found that they were without merit and recommended that they be overruled. The Employer filed timely exceptions to the Regional Director's recommendation that the election be set aside, and a brief in support of its exceptions. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. 4. The parties stipulated, and we find, that all production and main- tenance employees, shipping employees, warehouse employees, and plant clerical employees at the Employer's Glasgow, Virginia, plant, excluding general office clerical employees, laboratory employees, pro- fessional employees, nurses, watchmen and guards, foremen-fixers in the carding, winding, and spinning departments, and all other super- visors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 130 NLRB No. 42. JAMES LEES AND SONS COMPANY 291 5. In the absence of any exceptions thereto, we adopt pro forma the Regional Director's recommendation that objections Nos. 1 through 11 (as numbered in his report) be overruled. As to the remaining objections, we agree with the Regional Director that the numerous statements and conduct by various responsible groups and individuals in the community as fully set forth in the report, reasonably conveyed the view to the employees that in the event of unionization the Em- ployer would 'shut down its plant and other employers would not locate in the community. Accordingly, we find that such conduct created a general atmosphere of fear and confusion which precluded the hold- ing of a free election. We shall, therefore, set the election aside and order a new election.' [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] CHAIRMAN LEEDOM and MEMBER RoDGERS, dissenting : We are unable to agree that the third party conduct complained of, for which there is no showing that the Employer was in any way responsible, warrants overturning the election which the Petitioner lost by a vote of 1,674 to 316. We note in an "OPEN LETTER TO THE COMMUNITY" distributed early in March 1960, about 2 weeks before the election, the Petitioner sought to enlist the sympathy and the support of the community by first raising the issue of job insecurity in the context of the pending merger of the Employer with a larger company and in the same document also quoted the plant manager as assuring "employees and the community that the Glasgow plant will remain." Apparently, the community, which also had a vital stake in the continuation of the plant, was more concerned about the impact of unionization upon the continuation of the plant's op- eration. As a result, the community subsequently embarked upon a campaign to urge the employees to vote against the Petitioner through propaganda detailed in the report. We have carefully con- sidered this propaganda as a whole and find that, for the most part, it consisted of expressions of opinion and prophecies by individuals or organizations and was based upon information generally known i We find no merit in the Employer 's contention that a hearing is necessary to deter- mine whether or not an "atmosphere of fear" had been generated which interfered with the freedom of choice of the employees. It is well established that the test of whether the employees involved had been improperly influenced is not determined from the sub- jective testimony of the employees involved-, but whether on the basis of all the objective circumstances, such as detailed and found by the Regional Director in his report, it reason- ably appears that the freedom of choice of the employees could have been interfered with. See Pinkerton's National Detective Agency, Inc., 124 NLRB 1076 , 1077, footnote 3 San Diego Glass and Paint Co., 117 NLRB 59, 61 . Under the circumstances we find a hearing unnecessary , and deny the Employer's request. As we are also satisfied that the Regional Director's report, the Employer's brief, and the record as a whole contain sufficient exposi- tion of the facts and the law upon the issues involved, we find the need for oral argument before the Board unnecessary and deny the Employer's request thereto. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the employees, which they were in a position to properly evaluate. Furthermore, it is clear that the Petitioner had ample opportunity to, and did, in fact, attempt to answer this third party propaganda. We disagree with the implications of the Regional Director's report adopted by the majority that under the facts in this case the Em- ployer had an obligation to disavow gratuitously the activities of the townspeople. See Goodyear Clearwater Mill No. 2, 102 NLRB 1329, 1348; Northrop Aircraft, Inc., 106 NLRB 23, 25. REPORT ON OBJECTIONS Pursuant to a stipulation for certification upon consent election , executed on February 25, 1960, and approved on February 29, 1960, a secret ballot election was conducted under the supervision of the Regional Director on March 16 , 1960, with the following results: i Approximate number of eligible voters --------------------------- 2, 175 Void ballots -------------------------------------------------- 7 Votes cast for Petitioner ---------------------------------------- 316 Votes cast against participating labor organization ------------------ 1, 674 Valid votes counted ------------------------------------------- 1,990 Challenged ballots -------------------------------------------- 100 Valid votes counted plus challenged ballots -------- --------------- 2, 090 Timely objections to conduct affecting the results of the election were filed by the Petitioner on March 23, 1960. The Regional Director has caused an investigation to be made and reports as follows: The Petitioner alleges: that the actions of the Employer, the agents of the Employer , and others, during the period immediately preceding the election, created among the em- ployees and in the community an atmosphere in which it was not possible for the employees to- exercise a free and independent choice in the election. The objections specifically allege as coercive: 1. A letter dated March 11, 1960,2 wherein the Employer is alleged: (a) To have made a "veiled threat" to close the plant if the Petitioner won the election. (b) To have made a "veiled threat that the Company would substantially refuse to bargain with the Union." (c) To have "misrepresented the procedure by which a strike may be brought about." 2. The front page editorial and headline , "If the Union Comes-Lees Goes," of the Buena Vista News of March 10, 1960.3 The Petitioner further alleges: If there could be any doubt that the newspaper had acted as the agent of the Employer in printing these threats, the Employer itself resolved the doubt by adopting the editorial's statements. This it did by facilitating the distribution of reprints of the editorial by mail to all employees . That the Company's mailing list was used to distribute these reprints is proved by the fact that errors 'The unit consisted of : All production and maintenance employees , shipping em- ployees, warehouse employees , and plant clerical employees at the Employer 's Glasgow, Virginia , plant ; excluding general office clerical employees, laboratory employees, pro- fessional employees , nurses, watchmen and guards , foremen -fixers in the carding, winding, and spinning departments , and all other supervisors as defined in the Act. i Exhibit No. 1 of the report Is a copy of the March 11, 1060 , letter The portions to which the Petitioner has particular reference in Its objections are bracketed . The same procedure will be followed in the report in referring to other exhibits wherein the Peti- tioner has , in addition to objecting to the whole exhibit, placed particular stress on some portion of the exhibit. $ Exhibit No. 2. JAMES LEES AND SONS COMPANY 293 on the Company's address plates were reproduced exactly in the addressing of the mailing of the reprints .4 [3] The Buena Vista News of March 3, 1960 also contained an editorial threatening the closing of the mill if the workers voted for the Union. This editorial was similarly reprinted and mailed to each employee by the use of the Employer's mailing list.5 These direct threats were adopted and ratified by the Employer by the use of its mailing list. [4] Literature containing two clear threats, reproduced on the same ditto machine on which the Company's memoranda for supervisors' Policies Manuals were reproduced, was distributed through the plant in the week before the election on Sunday, March 13th, and at other times when only supervisory personnel had access to the plant. One leaflet contained a thinly-veiled threat that organization would lead to the withdrawal of existing fringe benefits .6 * * * * * * Another leaflet contained another veiled threat of mill closing.? * * * * * * The Rockbridge County News, another local paper widely read throughout the community, on March 10th included an editorial threatening mill closing if the Union won the election.6 * * * * * * * The same issue of the paper included an advertisement threatening mill closing if the Union won the election .9 In concluding its objections the Petitioner states: The above pressures brought to bear upon the employees, taken together, created an atmosphere of fear in which it was impossible for them to exercise a free and independent choice. Since the election held in this atmosphere does not represent a genuinely free choice, it should be set aside. As the objections basically concern themselves with the contention that the atmosphere was such as to have made it impossible for the employees to have cast their ballots free of coercion, the Regional Director will set forth additional evidence adduced during the investigation and discuss the objections as a unit. In addition, in a separate section of the report will appear an enumeration and brief discussion of other allegations made after the objections were filed. 4In support of this phase of the objections, the Petitioner submitted envelopes sub- mitted by some employees and statements by employees wherein the latter stated that they had moved, had never furnished their Employer with their new address, and that the aforementioned reprints had been sent to their old address and then forwarded to them in the same fashion as mail received from the Employer (hereinafter referred to as Lees). 8 Exhibit,No. 3. 9 Exhibit No. 4-captioned "The Union Tells you What it Will Get For you in a Contract." Exhibit No. 5-captioned "Strikes " Thereafter the Petitioner submitted additional leaflets in support of this allegation They are: Exhibit No. 5A-Memorandum for Supervisors' Policy Manuals. Exhibit No. 5B-Memorandum for Supervisory Policy Manuals. Exhibit No. 5C-The Impact of a Union on the Present Relationship. Exhibit No 5D-It's Easy to Get in a Union but What Happens if you Try to Get Out "Exhibit No. 6. sExhibit No. 7-Petitioner's Representative Halstead states: This advertisement . carried in both the Lexington Gazette of March 9 and the Rockbridge County News of March 10, both widely read in the community These ads were signed by some 135 merchants or other purported business people. Among these merchants we find such businesses represented as the Ford Agency of Lexington, the Chevrolet Agency, Rockbridge Motors, several grocery store owneis, most insurance agencies, most real estate agencies, President of the Natural Bridge Chamber of Commerce, Mayor of Lexington, Common- wealth Attorney of County of Rockbridge, most men's furnishings stores in Lexington, most of the attorneys with offices in Lexington, President of at least two banks, Natural Bridge and Rockbridge National Bank of Lexington plus the cashiers and clerical help in both, most drug stores of Lexington plus several other varied business interests such as restaurant owners, plumbing shop owner, contractors and other influential people . . . ." 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the investigation the Petitioner urged that the following exhibits be con- sidered as being objectionable, coercive, or as substantiating evidence in proving prior objectionable conduct. Exhibit No. 8-A letter of February 12, 1960, addressed to various business firms in the community. Attached thereto is a letter dated January 29, 1960, which Joseph L. Eastwick (president of Lees) mailed to Lees' employees. The Petitioner contends that this letter contains a direct request that the community support the Employer. Exhibit No. 9-A letter of February 19, 1960, addressed to various business persons in the community. Attached thereto is a letter of the same date addressed to Lees' employees. The Petitioner alleges that the underscored words, "have an equal right to cam- paign against it," coupled with the sentence: "I am sure that the overwhelming majority will do just that," was construed by most business people as an invitation for them to apply pressure on Lee's employees. Exhibit No. 10-A two-page document prepared by the Employer.10 The Peti- tioner alleges that this exhibit was distributed to the merchants of the community in order to provide them with material to present to the employees. Exhibit No. 11-A letter to the editor published in the Rockbridge County News of March 10, 1960. This letter entitled "Group Urges Non-Union Vote" was signed by the eight directors of the Natural Bridge-Glasgow Chamber of Commerce. Exhibit No. 12-A leaflet by unknown persons entitled "To My Fellow Em- ployees" and urging a "No" vote. This leaflet was found on the plant floor ap- proximately a week prior to the election. Exhibit No. 13-A leaflet signed by "The loyal and responsible employees of James Lees and Sons Company" entitled "May We Count Our Blessings." This leaflet urged the employees to vote against the Petitioner. A copy of the leaflet was posted at the Bank of Natural Bridge Station. Exhibit No. 14-An editorial in the Buchanan News of March 10, 1960, stating in part: Lexington and Buena Vista newspapers are strongly urging the defeat of this (union) movement, and we confidently believe the operators of the plant will turn "THUMBS DOWN" when the workers' ballots are counted on March 16. Exhibit No. 15-A statement by Plant Manager Eisler, in the Buesia Vista News of March 17, 1960, wherein the latter thanked the employees and friends and neighbors in the community for their support. The Company, its management, and supervisors are extremely grateful for the vote of confidence the employees gave the Management of the Company, and to the neighbors and friends of the county for their support and assistance. We are proud of this evidence of faith in our Company. This same statement appears in the Rockbridge County News of March 17, 1960, as well as the following news item: The election by employees of James Lees and Sons' Glasgow plant yesterday proceeded on schedule in spite of the heavy snow. The snowfall did not appreciably affect the third and first shifts and a large vote by these employees was reported during the polling hours of 5:30 to 9:30 a.m. Employees on the second shift, which begins at 3 p.m. made every effort to reach the plant and only a very few were reported marooned by the snow. Voting for this shift was held from 2:30 to 5 p.m. At least one local auto- mobile dealer called the plant yesterday morning to offer the service of vehicles to help employees who were having snow trouble getting to work. Other volun- teers made up a regular motor pool. Interest has been widespread in the election to determine whether or not the employees wish to be represented by the Textile Workers' Union of America (AFL-CIO). Among the official groups passing resolutions during the past week was the Lexington Merchants' Committee. The merchant group went on record urging the employees of the plant to vote in the election. Exhibit No. 16-Full page advertisement in the Rockbridge County News, March 24, 1960. Similar full page advertisements appeared in the Lexington Gazette, March 23, 1960, and the Buena Vista News, March 24, 1960. In these advertise- ments Lees thanked the community for its strong support. 10 The Employer states that this exhibit was distributed solely to its supervisors in order to enable them to answer questions that employees might ask of them JAMES LEES AND SONS COMPANY 29)5 Investigation reveals the following: Lloyd T. Page, publisher of the Buena Vista News, states that between 6,000 and 6,500 persons live in the Buena Vista community . His newspaper has a normal weekly circulation of 2,350 copies. Approximately 700 Lee's employees live in the community. Five hundred copies of the Buena Vista News enter the homes of Lees' employees in the community. Prior to the election Page was recovering from a heart attack and thus was able to spend only a few hours a day in the newspaper plant . Though Page did not write the editorials which appear in the March 3 and 10 issues, they had his full approval. The editorials expressed Page's ideas and were not sponsored, suggested, or paid for by Lees. Twenty-five hundred copies of the editorials , "If the Union Comes-Lees Goes," "The Fate of Rockbridge County-Buena Vista," and "Vote `No"' were reprinted and mailed to Lees' employees and to persons in the com- munity. Lees did not pay for the reprints and did not furnish a mailing list of employees' names to Page. However, other than to state that the list of the em- ployees' names and addresses had been obtained from a person in Lexington, neither Page nor his attorney would furnish any information as to the source from which they secured the names and addresses of Lees' employees. M. W. Paxton, Jr., publisher of the Rockbridge County News, states that his paper has a weekly circulation of 4,006 copies . The ideas in the March 10 editorial were his own and were not sponsored by Lees. Paxton states that the advertisement which appeared in the March 10 issue (Exhibit No. 7) was the idea of local citizens and that Lees was not billed for the advertisement . The parties responsible for the advertisement were billed at the regular rate. Finley Waddell, an insurance agent at Lexington, Virginia, was one of the persons chiefly responsible for placing the March 10 advertisement in the Rockbridge County News. Waddell states that the advertisement was the spontaneous action of a group of citizens who felt that it would not be to the best interests of the community if the Petitioner prevailed in the election. The advertisement was written by an attorney. The attorney states that the advertisement expressed his views on the subject and that Lees was not instrumental in the placement of the advertisement . Both men stated that Lees had not and would not assume any part of the cost of the advertisement. Five hundred copies of a letter signed by members of the community, including Waddell, were mailed to Lees' employees.ii Waddell would not divulge the source from which the addresses of Lees' employees were secured. Councilman Widdifield, one of the five councilmen for the city of Buena Vista, states that he believes that he told Petitioner's Representative Halstead: that any business man who came out for the union would be crucified. This statement was just my own opinion . I had been in the union but I am not for it now with the blowing up of things and racketeers. With respect to his alleged antiunion activity, Widdifield states: I called Eisler, the plant manager at Lees, and told him that if there was any way that I could help him I would. This was before the newspaper's editorials of March 3 and 10 . I believe it was about 3-4 weeks before the election. Eisler invited me to the plant. We had dinner together in the cafeteria. I told him that I had worked for Burlington Mills and that they had always treated me right. I offered to talk to those that I thought that I could change their minds. I do not remember just what he said, but he was agreeable. He did not tell me what to say or what not to say to anybody. He did not attempt to influence me in any way. I think that I might have talked to about 20-25 people, maybe more. I talk all the time. I basically told the employees that I thought they didn't need a union, that it wouldn't benefit anybody. I told them that I thought it would hurt them. I told them that now that the mill was Burlington it would close down if a union came in, because Burlington didn't want a union and wouldn't operate with a union. What I told them was just my own idea, nobody influ- enced me. With respect to this incident the Employer states: Approximately two weeks before the election , a Mr. Widdifield of Buena Vista, Virginia, telephoned Mr. Eisler , the Plant Manager, and asked if he might come down to the plant and see and talk to Mr. Eisler about his .(Widdifield's) previ- ous association with Burlington Industries . Mr. Eisler invited him to come down and have lunch the following day. At lunch the topic discussed by Mr. "Exhibit No. 17. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Widdifield was that he (Widdifield) did not like the idea of the union lumping on Burlington because he (Widdifield) had been a former employee of Burling- ton and knew that they were a good company. He stated to Mr. Eisler that he knew that Burlington was a good company and that he wanted Mr. Eisler to know that, and that he expected to tell other people substantially the same thing. Mr. Eisler thanked him for his interest and made no comment or suggestion as to whether Mr. Eisler approved or disapproved of Mr. Widdifield's statement and undertook in no way, because he was not asked for advice to direct or control Mr. Widdifield's personal subsequent conduct. There has been no other contact between the company or any of its officials and Mr. Widdifield. The cashier of the Bank of Natural Bridge, a State-chartered institution, states that about a month or two before the election he began to defer loans. The cashier who has the right to approve loans of up to $400 to 500 told four or five persons that if things at Lees remained the way they were he would talk further about the prospective loans. However, if the plant became unionized he would wait and see what Lees did before he took any action on the loans; some of which he states he might not have made under ordinary circumstances.12 The cashier states that the idea to take such action was his own. In his opinion such action was necessary for his own protection and the bank's protection since the community is dependent upon Lees. An employee states that there was a rumor going through the plant that the Lees' employees could not get credit at the bank. Concerning the same bank, another employee states that in February he spoke to the cashier about a loan. The employee states that the cashier, . sort of hinted that he would rather wait until after the election. He talked like the plant at Lees would close down if the union came in." A third employee states that in a conversation with his foreman, several days prior to the election, the foreman advised: that he had been informed, but did not say by whom, that Tom Scott, the -President of the Natural Bridge Bank at Natural Bridge station had stated that his bank would not give any credit or loans to James Lees employees until after the election. A fourth employee states that he was at the Natural Bridge Bank prior to the time anybody knew when the election would take place. After the employee and the cashier had discussed what the employee thought about the Union, the cashier, . asked me where I would be if it were not for the Company. He said that he didn't think that I would own my home or drive an automobile if they were not here. He also said that they didn't have to be in Glasgow and that the plant might shut down if the union should succeed in organizing. A restaurant owner in the town of Buena Vista states that prior to the election he received campaign propaganda from both Lees and the Petitioner. Prior to the election it was common gossip among his customers that there was a possibility of Lees closing the plant if the Petitioner should prevail. The restaurateur states that he did not start the gossip about the plant closing down if the Petitioner was successful, but merely repeated the gossip to his customers as a matter of conver- sation. He acknowledges that the gossip might have been repeated a few days prior to the election, and concludes: "Everybody was talking the same way." Concerning the same restaurant, an employee states that after the notice of election was posted he was talking to two employees about the good points of the Petitioner. The restaurant owner heard the conversation and stated that the employees were making good money, in fact more money than anybody else around there. that he didn't see why they needed a union, and stated- ". . . as sure as anything they (Lees), would move out, that they didn't have to stay there." On another occasion while this same employee was talking to another employee, the restaurant owner states: ". . . that we would have another Henderson [reference is to the recent well publicized textile strike at Henderson, North Carolina] and another ghost town at Buena Vista." 12 Thereafter, the cashier submitted a signed statement wherein he states "About a month or two before the election at the plant, I began to defer loans I have since made the loans that I deferred I told about four or five people that if things at James Lees stayed the same I would go on and talk about the loans further, but if it unionized I would wait and see if there was a strike before taking further action on the loans. They were small loans. Some of the loam I might not have made anyhow" Since the election the deferred loans have been granted JAMES LEES AND SONS COMPANY 297 A restaurant manager, who -received campaign propaganda from the Petitioner but none from the Employer, states that he did not remember telling anybody that the plant would close down if the Petitioner was successful in the election. This restaurant manager states : ". . it was a topic of conversation that if the union came into the plant there was definitely a possibility that the plant might decide to move or close down." A jewelry store owner in Buena Vista states that prior to the election both the Petitioner and the Employer sent him literature which he discarded. He did not re- member telling anyone that he would not issue credit to Lees' employees, or that the Employer would close down if it were organized. However, he states that it was common conversation within the community that Lees would close down if the Petitioner were successful in the election. Concerning the same jewelry store, an employee states that after the notice of election was posted he purchased a ring and the following conversation ensued: He (Roland) started the conversation by saying that he heard that we were trying to get a union in. This was after I had made the purchase, about $20, but I hadn't paid him yet. I said that I guess that I had better pay for it as I reckoned that I couldn't get credit. I had heard around that companies weren't allowing credit. I paid him immediately. Roland did not say anything as to whether he would give me credit or not. He did say, "What's wrong with you people want- ing a union." He said that we were getting good money and had good working conditions. He said that if we got a union down there, and I do not remember his exact words, something to the effect that the Company would move out. Another employee states that on March 4, 1960, he visited his dentist at Lexington, Virginia. The employee states: . (the dentist) said that I should think the thing over, what we were getting into this union. He said that if the union got in, the Company was liable to close the plant down." Another employee states that it was common gossip in the plant that the plant might move if the Petitioner became bargaining agent. Another employee states that she had never been told by any merchants that the plant might move or that they wouldn't give any credit until after the election, but that "there were rumors around that the banks or merchants wouldn't give credit. .. . In response to a question as to Lees' position with respect to the objections, Lees' counsel, in addition to denying that Lees had any part in the distribution of the newspaper reprints, in part, states: I believe it is appropriate that you understand fully, as a preliminary to your investigation, the nature of the campaign which was waged by the Union in connection with the above matter. It is obvious from reading the Objections that the Union has selected out of context three remarks from Company docu- ments, one of which went to employees and two of which went to Supervisors, and selected two newspaper articles with which the Company had no connec- tion but which concerned the election, and attempted to create an impression that somehow or other these were some veiled threats which created an atmos- phere which was such as would support their Objections to the alleged conduct affecting the results of the election. It must be remembered that this campaign, although it had been carried on for many months, came to a head by the filing of a Petition on the part of the Union shortly after the announcement of a con- templated merger between James Lees Company and Burlington Industries. The Union, having filed its Petition, embarked upon a campaign designed by persuasion, misinformation, and threats to persuade and convince the employees of James Lees and the people of Rockbridge County, Virginia and the surround- ing communities in and around Glasgow, that the impending merger between James Lees and Burlington would result in a loss of employment, loss of bene- fits, and ultimate loss of the plant, to employees, Supervisors, and the surround- ing communities; and to predicate its campaign on the concept that only the Union could avoid these dire consequences Throughout its campaign the Union raised, emphasized, and fomented the concept that there was a likelihood that the Glasgow plant would be moved or liquidated if the Union were not voted in. The Union's literature, as stated above, was not only directed at the employees of James Lees Company, but was also directed at the communities surrounding Glasgow, and a good part of it was directed to and sent expressely to the Com- pany' Formen. When the material which the Union complains of, particularly the newspaper material, is read in connection with the Union's campaign ma- terial, it will be seen that even though the Company had itself written these edi- 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD torials and circulated them as its own (which it did not in any sense do), that the statements in these editorials would have been protected statements within the Board's concept of election campaigning . The Company did not sponsor, ratify, or adopt these editorials, but obviously the Editors and the people in the communities against whom and to whom certain of the Union's propaganda was beamed felt it desirable to reply and express their opinion in this matter, since the Union had taken it upon itself to address its campaign, in part, to them and to the Supervisors. While I do not have copies of all of the Union's material, I am enclosing here- with photostats or copies of some of the material which was directed not only to employees, but also to business men and citizens in the communities in and around Glasgow, and other material which was directed and sent to the Com- pany's Foremen, as well as material which was sent to employees by the Union, including obvious answers to the editorials which the Union complains about, although the Company had nothing to do with them. The following leaflets referred to by Lees' counsel above which were distributed by the Petitioner, are attached as exhibits to this report: Exhibit No. 18-"An Open Letter to The Community"-mailed by the Petitioner on March 2 and 3, 1960. Exhibit No. 19-"Dear Foreman"-a leaflet mailed by the Petitioner on March 2 and 3, 1960. Exhibit No. 20-Twelve-page booklet entitled: Read the TRUTH ABOUT PLANS FOR DISSOLUTION OF JAMES LEES & SONS COMPANY This booklet was distributed to merchants and employees on March 7 and 8, 1960. Exhibit No. 21-"Dear Foreman" leaflet dated March 11, 1960, to which was at- tached Exhibit No. 20. Exhibit No. 22-Petitioner's leaflet-"What You Lose By Joining Burlington" dis- tributed at the gate on March 1, 1960. Exhibit No. 23-Petaioner's leaflet-"About Mr. Eisler's Speeches!"-distributed at the gate on March 11, 1960. Exhibit No. 24-Petitioner's leaflet-"The Company is Desperate"-distributed at the gate on March 9, 1960. Exhibit No. 25-Petitioner's leaflet-"Yes! Yes! Yes!"-distributed at the gate on March 15, 1960. A study of the propaganda, issued by the Petitioner listed above, reveals that it consists in part of quotations from magazine articles describing the operations of Burlington Industries (which recently acquired Lees) and its chief executive, state- ments describing personnel policies of Burlington, reproductions of the agreement and plan of reorganization of Burlington and Lees, and predictions for the future under Burlington operation It is the opinion of the Regional Director that this material consists of legitimate campaign propaganda, the truth or falsity of which is not ordinarily policed by the Board. The Regional Director has considered all the evidence submitted, arguments made, and cases cited by the Petitioner and Lees. He is of the opinion that the issue is whether or not the election was conducted in such an atmosphere and under such conditions as to allow the employees a chance to freely express themselves at the polls. The campaign was predicated on the issue of fear-fear that the plant would close or move. The recent acquisition of Lees by Burlington Industries introduced an additional element of uncertainty. To properly evaluate Lees' unique position in Rockbridge County as an Employer of more than 2,175 employees, especially in the Glasgow, Natural Bridge, Lexington, Buena Vista, and Brownsberg area,13 it should be noted that in 1950 Rockbridge County's population was 23,359. In 1960 Rockbridge County's estimated population was 26,250 with little change in the aforementioned town populations. Thus the impact of possible unionization of Lees' employees was of profound interest and concern to the communities in the 13 The telephone directory lists all four towns in one book. There are approximately 5,573 listings in the alphabetical listing section of the book Natural Bridge is 6 miles west of Glasgow ; Buena Vista is 9 miles north of Glasgow ; Lexington is 6 miles east of Buena Vista, and 15 miles from Glasgow ; and Brownsberg is approximately 12 miles north of Lexington and about 27 miles from Glasgow. JAMES LEES AND SONS COMPANY 299 area. The importance of the communities' reaction to the advent of Burlington as well as the possible unionization of Lees' employees is evidenced by the edi- torials in the weekly newspapers, letters to the editors, the advertisements appeanng in the various newspapers, and the remarks of businessmen.14 Thus the employees at every turn in their daily lives were confronted with the prospect that the plant would shut down if the Petitioner prevailed. Such prospect was hardly conducive to the atmosphere in which employees could vote free of fear. This fear was greatly magnified by the lead headline in the March 10, 1960, issue of the Buena Vista News-"If the Union Comes-Lees Goes." (Exhibit No. 2.) Thus, the employees were apparently faced with the certain prospect that if the Petitioner pre- vailed, the employees would find themselves without jobs. This editorial, coupled with the March 3, 1960, editorial in the Buena Vista News (Exhibit No. 3), sections of the editorial in the Rockbridge County News of March 10, 1960 (Exhibit No. 6), Councilman Widdifield's remarks to employees, the deferring of loans by the cashier ,of the Bank of Natural Bridge, and the general rumors making the rounds at restaurants and other business establishments, coupled with the concern of prom- inent persons in the community as evidenced by the advertisement in the Rock- bridge County News of March 10, 1960, all indicating that the plant would close if the Union won, unduly interfered with the employees' exercise of their choice at the polls. Whether or not the Employer was responsible for the generation of the fear which interfered with the free choice of ballot is immaterial as the Board held in Monarch Rubber Co., Inc., 121 NLRB 81, and The Falmouth Company, 114 NLRB 896. Further, it is noted that there is no evidence that the Employer did anything to disavow the threats contained in the newspaper articles and ads that the plant would close if the Union were successful. Accordingly, it is recommended that the election be set aside. In addition to the objections set forth in its letter of March 22, 1960, the Petitioner has also alleged that the following conduct was of such character as to warrant setting the election aside. The following quotations are from affidavits of employees: (1) Supervisor Huffman, in the narrow wilting department, telling each employee at 7:15 a.m.: that the voting time had been stepped up from 7:40 a.m. to 7:30 a in., to shut our looms down and to be in line. He passed on to the next row. Usually he takes his time going among the looms; this time he seemed to be quite in a hurry. (2) . on at least four occasions (Foreman Clyde Campbell) stuck his head through the door of the polling place, and announced that a certain group was coming in to vote. After making that statement he immediately withdrew his head, but where he went from there I do not know." (3) "At about 5:20 a.m. fixer assistant foreman John Hill and Orell Deacon came through and told us that at ten minutes of six they would take over our machines and for us to go and vote. I called the Board Agent at the spinning mill polling place and complained to him. I do not know what action was taken by the Board Agent, but immediately after my call Hill and Deacon ceased their activities in that respect Neither Hill or Deacon had ever relieved at a machine before." (4) ". . that Clyde Campbell a day prior to the election had gone around and told each girl in the spinning mill that the office employees would vote the same as the other eligible employees. I believe that this caused confusion as all the em- ployees in the plant knew that the office employees were against the union. I (the employee) believe that it influenced the vote because the spinning room employees sort of gave up when they heard that ineligible employees would be allowed to vote. This was especially true when the government notice stated who was to be allowed to vote and who was not to be allowed to vote." 15 (5) That during the afternoon voting session: a man came along and gave his name as Smalls. Our observer Peggy Aiken knew him and said that he wasn't a Smalls, that his name was Muti- spaugh. The observers found his name and checked him off the list. Three employees came along. I challenged them as office employees. They claimed that they were weavers. They voted challenged ballots. 14 For the sake of this report the Regional Director will assume that the actions of the newspaper editors and other persons in the communities were spontaneous, motivated solely by self-interest and what they deemed best for the communities involved. Ii The Petitioner challenged 99 voters, most of them on the basis that they were office clerical employees. Lees stated they were plant clerical employees. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (6) That about a week or so before the election Plant Manager Eisler spoke to, the employees: He (Eisler) gave us the example of what had happened at the Harriett Hen- derson Mills at North Carolina, and also the Alexander Smith Mill and what the union had done there. He went on to say that if we got a union in brothers would be fighting as they had done at Henderson. Eisler went on to say that the plant could close down and would close down if the union got in, but I do not know in exactly what context he made the statement.16 (7) That Foreman William Newell told an employee: that if the union wasn't trying to get in we would get a raise like the rest of the Burlington Mills. He made that statement to me personally but I do not remember just when it was, but it was a few weeks before the election I believe that the petitioner for the election was in, but I do not know if the election had been agreed upon. (8) That on the day of the election it was snowing hard and the weather was very bad. Lees made spot announcements on the radio that anybody who anticipated difficulty in getting into work should call and Lees would furnish transportation; that Lees had never offered transportation before; and that Lees refused transpor- tation to an employee who called after the voting had ceased. (9) That on the day of the election, Lees at the request of one of its observers provided transportation for employees Sorrels and Winds but refused to provide transportation for employee Nellie Mason even though, "I (an employee) told foreman William Newell that they ought to go and get Nellie Mason. He said that she would vote the wrong way, that they didn't need Nellie." (10) That though employees Ludie B ch and Geraldine Floyd were on leave of absence, they came in for the specific purpose of voting. Thereafter the employees were paid 4 hours' reporting time. (11) An employee states that about 10 to 12 days prior to the election, but he is not certain as to the time element, he was in the Charles Barger Grocery Store at Natural Bridge Station. C. L. Tolley, the proprietor, told him that the employee was walking on thin ice, and that he had heard talk that came straight (but he didn't say from where) that I would be fired. He suggested that I talk to Carson the plant personnel manager." The employee did not speak to Carson and is still working at Lees. C. L. Tolley states that one day he told the employee: that the fellows that he worked with down there had told me (Tolley) that he was spending too much working time on union activity in the plant. I told him that the fellows had stated that he better watch what he was doing. This information had been given to me (C. L. Tolley) by some of the men who worked in (the employees) area. They were not foremen, supervisors, or Company officials. The Regional Director has considered all of the allegations and incidents set forth in paragraphs numbered 1 through 11, above; Lees' denials in most instances; ex- planations or admissions with regard to some incidents; and is of the opinion that even if the alleged incidents are within the scope of the original objections filed on March 23, 1960, and happened as detailed by the witnesses, they do not warrant setting the election aside. Thus, incidents related in paragraphs numbered 1 through 3, though some of them might to some extent have resulted in departure from an automatic releasing schedule,17 did not involve any coercive action on the part of any supervisors. At the utmost it involved some over zealousness on the part of a few supervisors who wanted to make certain that all employees voted. Incidents related in paragraphs numbered 4 and 5 are clearly not of such character as could effect the results of an election to warrant setting it aside. The speech related in paragraph numbered 6 is protected by Section 8(c) with the possible exception of the last sentence. Eisler denies making any threats and the employee's statement is too indefinite in its nature to warrant a finding that Eisler's speech was coercive. The employee's version of the incident related in paragraph number-d 7 is too indefinite in time to ascertain whether it occurred before or after the cutoff date con- trolling whether or not objections to an election can be considered. Thus, this inci- dent cannot be considered in determining whether the election should be set aside. 16 Eisler denies making the alleged threats or any threats in his speech 14 Voting was by automatic releasing. The employees were to leave their job stations as per posted schedules without instructions by any supervisors. GENERAL CABLE CORPORATION 301 With respect to the incident related in paragraph numbered 8, the Board has previously held that an employer or union can provide employees with transportation to the polls. Foreman Newell denies that the incident related in paragraph numbered 9 oc- curred. Moreover, there is no showing that had Mason herself made the request Lees would not have honored it. Assuming that the incident did occur, it does not warrant setting aside an election involving 2,175 employees. With respect to the incidents related in paragraph numbered 10, there is no showing that payment of reporting time to the three employees was conditioned on the manner in which they voted. The incident described in paragraph numbered 11 involves a reporting of hearsay statements . It does not involve statements alleged to have been made by Lees' supervisors and cannot be attributed to Lees. Thus, the Regional Director, in recommending that the election be set aside, has not included as a basis for his recommendation the allegations set forth in the last paragraphs numbered 1 through 11. General Cable Corporation and United Electrical, Radio & Machine Workers of America, (UE). Case No. 2O-CA-1781. February 16, 1961 DECISION AND ORDER On July 29, 1960, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Respondent filed a brief in support of the Intermediate Report. 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 Rodgers 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 Intermedi- ate Report, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a change duly filed on February 15, 1960, by United Electrical , Radio & Machine Workers of America, (UE), herein called UE, the General Counsel of the National Labor Relations Board , herein respectively called the General Counsel i ' This term specifically includes counsel for the General Counsel appearing at the hearing. 130 NLRB No. 44.