Burlington Industries, Inc.

CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 87 Regional Director, among the employees in the appropriate unit who are employed during the payroll period immediately preceding the date of the issuance of the notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] MEDIBER IRODGERS took no part in the consideration of the above Decision and Direction of Election. Cleveland Woolens, a Division of Burlington Industries, Inc. and Textile Workers Union of America, AFL-CIO-CLC Cleveland Woolens, a Division of Burlington Industries, Inc. and Textile Workers Union of America, AFL-CIO-CLC, Petitioner. Cases Nos. 10-CA-4859 and 10-IBC-5068. December 12, 1962 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On August 22, 1962, Trial Examiner Joseph I. Nachman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a) (1) of the Act and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that certain activities engaged in by the Respond- ent created an atmosphere of fear and reprisal which interfered with the employees' freedom of choice in the selection of a bargaining representative in the election conducted in the above representation proceeding,' and recommended setting aside that election and remand- ing the case to the Regional Director for the Tenth Region to conduct a new election at such time as he deems the circumstances permit the free choice of a bargaining representative . Thereafter, the Respond- ent and the Charging Party-Petitioner filed exceptions to the Inter- mediate Report and briefs in support thereof. The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- 1 Pursuant to a petition duly filed by the Petitioner an election was conducted on November 16, 1961, which the Petitioner lost. Objections to conduct affecting the results of the election were duly filed, and in due course a hearing was directed concerning objec- tion No. 1, which is the substance of the representation case before us, and which was consolidated with the instant unfair labor practice case. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Leedom , Fanning, and Brown]. 140 NLRB No. 5. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate Report, the exceptions 3 and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations with the modifications herein noted.' ORDERS The Board adopts as its Order the Recommended Order of the Trial Examiner. [Text of Direction of Second Election omitted from publication.] 8 The Respondent 's exceptions to the Intermediate Report are in large part directed to the credibility resolutions of the Trial Examiner . We will not overrule the Trial Ex- aminer 's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they were incorrect Upon the entire record , such conclusion is not warranted here . Standard Dry Wall Products , Inc. v. N.L R.B., 188 F 2d 362 (CA. 3), enfg . 91 NLRB 544 'Because the General Counsel had disavowed reliance on an identical statement made by the plant manager to the same employee on the same day, the Respondent excepted to the Trial Examiner's finding that an alleged threat made by Supervisor Rooks to employee Lottie Miller constituted a violation of Section 8(a) (1). Under these circumstances, we do not rely on the statement of Rooks to Miller in concluding that the Respondent vio- lated the Act as found by the Trial Examiner. 5 Even assuming, arguendo , that, as the Respondent contends , the speech delivered to the employees between September 6 and 9 by Respondent ' s plant manager, Qualman, standing alone did not constitute a threat to close the plant if the Union won the elec- tion, it is clear that in the context of the threats, promises of benefits , and interrogations of individuals which the Respondent also engaged in, the Trial Examiner correctly found it a violation of Section 8(a) (1) of the Act. N.L.R B. v. Virginia Electric and Power Company, 314 U. S 469 Member Leedom , however, finding the speech coercive because of the repeated statements that the Union would work to the employees' "serious harm," deems it unnecessary to consider whether the speech otherwise violated Section 8 ( a) (1). 9 The Charging Party would expand the notice posting provision of the Trial Examiner's Recommended Order to require posting at all plants operated by Burlington Industries, Inc, rather than limiting such requirement to the Cleveland Woolens Division plant in- volved . Inasmuch as these unfair labor practices are intimately concerned with a pattern of conduct designed to thwart the employees ' freedom of choice in a Board-conducted election limited to the Cleveland Woolens Division plant, we adopt the posting require- ment recommended by the Trial Examiner and limit it to the plant in question. INTERMEDIATE REPORT AND RECOMMENDED ORDER AND REPORT ON OBJECTIONS STATEMENT OF THE CASE In Case No. 10-CA-4859, upon a charge filed by Textile Workers Union of Amer- ica, AFL-CIO-CLC (herein called the Union or Petitioner ), the General Counsel of the National Labor Relations Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint i alleging the commission of unfair labor practices by Cleveland Woolens, a Division of Burlington Industries , Inc.2 (herein called Respondent or Employer), in violation of Section 8(a)(1), and affecting commerce within the meaning of Section 2(6) and (7) of the National Labor Rela- tions Act, herein called the Act. Respondent filed an answer admitting certain factual allegations but denying the commission of any unfair labor practices. In Case No. 10-RC-5068, an election was conducted among Respondent's em- ployees on November 16, 1961 , which the Union lost.3 The issue in this phase of the 1 The charge was filed and served November 22, 1961 ; complaint issued January 3, 1962 2 After issuance of the complaint herein, Respondent's corporate name was changed from Peerless Woolen Mills , a Division of Burlington Industries , Inc, to Cleveland Woolens, a Division of Burlington Industries , Inc. A motion to amend the complaint and all formal papers to reflect this change in name was granted. 8In Case No . 10-RC-5068, the chronology of events is as follows : September 11, 1961, representation petition filed ; October 24, 1961, election directed ; November 16, 1961, CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 89 case is whether Respondent engaged in conduct which affected the results of the election. Pursuant to notice, a hearing in the consolidated case was held before Trial Examiner Joseph I. Nachman at Cleveland, Tennessee, on June 5 and 6, 1962. All parties were represented at and participated in the hearing and were granted the right to present evidence, to examine and cross-examine witnesses , and to argue orally on the record, as well as to submit briefs. Oral argument was waived. Briefs have been received from the General Counsel and from Respondent, which have been duly considered. Upon the entire record in the consolidated case, including stipulations of the parties and admissions in the answer, and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACTS I. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, is engaged at Cleveland, Tennessee, and other places, in the manufacture of textile products. During the past calendar year Re- spondent sold and shipped from its aforesaid plant, to its customers located outside the State of Tennessee, products valued at in excess of $50,000. The parties admit, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over its operations. II. THE LABOR ORGANIZATION INVOLVED It was stipulated, and I find, that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTION TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION WHICH HAS BEEN REFERRED FOR HEARING In the unfair labor practice case the complaint alleges that Respondent (1) threatened to close its plant if the Union successfully oiganized the employees; (2) threatened reduced working hours and/or discharge if employees supported the Union; (3) promised benefits if employees withdrew support from the Union; (4) interro- gated employees regarding their union activities, and (5) solicited empioyees to obtain and reveal the names of employees supporting the Union In the representation case, objection No. 1, the only one referred for hearing, the issue is whether Respondent interfered with the election by statements allegedly to the effect that the plant might close and/or a large number of employees be laid off, if the Union won the election A The unfair labor practice case 1. Background and collateral events In the fall of 1961, the Respondent's so-called Peerless Division consisted of three plants. One at Cleveland, Tennessee, the plant directly involved in this proceeding; one at Rossville, Georgia, which is approximately 30 to 35 miles distant from the Cleveland plant; and a third one, several hundred miles away, at Tifton, Georgia. In August 1961, International Union, Allied Industrial Workers, was certified by the Board as the representative of the employees at the Rossville plant. In September election conducted resulting in 292 votes for, and 399 votes against, the Union, 16 chal- lenged ballots, and 1 void ballot; November 22, 1961, Union filed objections to conduct affecting the results of the election ; December 20, 1961, supplemental decision issued overruling all objections except objection No. 1, which was referred for hearing because of substantial and material credibility issues ; February 13, 1962, supplemental decision amended to provide that objection No. 1 be deemed to encompass the question whether a statement posted on Respondent's bulletin board during the critical period should be interpreted as a threat that Respondent would close its plant if the Union prevailed ; January 2, 1962, Union petitioned Board for review of the Regional Director's supple- mental decision and order dated December 20, 1961 ; April 2, 1962, Board deferred action on the petition for review pending the hearing directed by the Regional Director ; April 17, 1962, order entered consolidating the representation case with the unfair labor practice case for hearing. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1961 , the Company decided to liquidate the Rossville plant, and a notice to that effect was posted in both the Rossville and Cleveland plants? In the instant proceeding, the Union began its organizational campaign at the Cleveland plant in late August 1961. That management immediately became aware of this activity, and that it opposed the unionization of its employees is admitted. Certain activity, the General Counsel contends, was engaged in by the Respondent in violation of Section 8(a)(1) of the Act, designed to dissuade the employees of its Cleveland plant from designating the Union as their bargaining representative. Such activity will now be detailed. 2. The speech Walter Qualman had been manager of the Cleveland plant for some years. It had been his practice to address employees semiannually relative to general operating conditions at the plant. In September 1961, Qualman decided to include in his talk to the employees certain remarks relative to the advent of the Union. Qualman testified that in preparing that portion of his talk which dealt with general operating conditions, he made notes on 3 by 5 cards which he referred to in speaking to the employees. Qualman further testified that the portion of his speech which dealt with the Union, he wrote out in full, submitted it to his counsel, and after obtaining the latter's approval, caused it to be typed in final; that he gave a copy of the speech to Personnel Director Shelton, who was instructed to arrange for the employees to hear the speech in separate groups by departments and shifts,5 and to be present each time the speech was given and follow Qualman's remarks on the copy of the speech which had been furnished him. Of the nine witnesses called by the General Counsel, six testified that as em- ployees in the Cleveland plant, they heard the speech given by Qualman.6 While these employees differ in some of the details concerning the speech, they testified in substance that in the course of his speech Qualman stated that if the Union came in the Cleveland plant would close.7 They further testified that while Qualman from time to time in the course of his talk referred to cards or to other material which he held in his hand, he did not, so far as they could observe, read any portion of his speech from a prepared text. 4 The liquidation of the Rossville plant was the subject of an application by the Board for an injunction under Section 10(j) of the Act. See Phillips v. Burlington Industries, Inc, 199 F. Supp 598 (ND Ga) In the complaint proceeding in that case (10-CA- 4819 ), the Board issued an order on July 3, 1962, based on a stipulation of the parties, providing for the entry of an 8(a) (1) and (5) order , backpay in a lump sum to be distributed as the Regional Director may determine , and the establishment of a prefer- ential hiring list if and when the Rossville plant resumes operations , and the entry of an enforcement decree by an appropriate court of appeals. 5 The plant had about 850 employees who were addressed in groups of 30 to 50 Hence, it was estimated that the speech was given from 16 to 20 times . It was stipulated that the first group of employees heard the speech on September 6 and the final group on Septem- ber 9, 1961. e The three witnesses who did not testify about the speech were employees Swafford, Moore, and Lowe All three men were employed at the plant during the period involved, and the speech seems to have been made to all employees . Why Swafford , Moore, and Lowe were not examined on this subject is not explained Respondent called no rank-and- file employees to testify about the speech. 7 According to employee Reed, Qualman stated that if the Union came into the Cleve- land plant there would be 1,500 people out of work , just like the Rossville plant which is now being liquidated. According to employee Miller, Qualman stated that the Rossville plant was up for sale , and if not sold it would be liquidated with 1,500 people out of work, and that if the Union got into Cleveland it would not continue to operate under a union Employee Moss testified that in the speech Qualman stated that the Rossville plant would be sold or liquidated within 60 to 90 days , that employees who had signed union cards would be forgiven if it stopped now, but that he would tolerate it no further, and that the Cleveland plant could not and would not work under a union Employee Tatum testified that Qualman said the Company would not operate under TWA Accord- ing to employee Wilson, Qualman said that if the Union was voted in at Cleveland, the same thing would happen as at Rossville , the plant would close down According to employee Gatlin, Qualman stated that he did not hold it against employees that they had in the past signed union cards, but thereafter it would be held against them ; that Rossville plant was for sale and if not sold would be liquidated in 60 to 90 days ; and that the Cleveland plant could not and would not operate under a union. CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 91 Qualman testified that when speaking to the employees on the subject of general plant conditions, he spoke extemporaneously referring at times to the notes which he had made on the 3 by 5 cards, and which he had before him, but that the portion of his speech which dealt with the Union he read verbatim from a prepared manuscript which had been approved by Respondent's counsel. Qualman denied emphatically that he made any of the statements attributed to him by the employees who testified on behalf of the General Counsel. What Qualmian identified as the original manuscript from which he read each time the speech was delivered, was received in evidence as exhibit No. 7, and a copy thereof is attached as Appendix A.8 Personnel Manager Shelton fully corroborates Qualman. He testified that he was present at every session when Qualman spoke to the employees; that as Qualman spoke he followed what was being said against the copy of the speech that had been given him, and that what Qualman said was, word for word, exactly what appeared on the copy he had before him. The six employees who testified concerning the Qualman speech all impressed me as honest and reliable witnesses who were trying to truthfully relate the facts as they understood them to be, and I have hereinafter credited various portions of their testimony. However, I am convinced that they were honestly mistaken in their testimony that Qualman spoke only from notes and that he used the words which they attributed to him. While it is possible that Qualman completely dis- regarded the prepared manuscript when he spoke to the employees, or that while generally following the manuscript he interpolated the language attributed to him by the General Counsel's witnesses, such a conclusion would require the assumption that Qualman and Shelton collaborated in a rather complicated and somewhat pointless deception on the Company and its counsel.9 It seems more likely, and I find, that Qualman read this portion of his speech from a prepared manuscript, each time it was delivered, as Qualman and Shelton testified, and that exhibit No. 7 is the original manuscript from which he read. 3. The alleged threats by supervisors to specific individuals a. Josephine Reed Employee Reed, a ring spinner, was so employed at the Cleveland plant on the date of the hearing. During the first or second week of September 1961, she was invited by Supervisor Sartin into his office to "sit and talk." Sartin brought up the subject of the Union, and after some conversation she asked Sartin, "Couldn't we work under it [the Union] for a year and then vote it out." Sartin replied, "Definitely not, if the Union comes in the mill will close down." b. Donnie Wilson Wilson worked at the Cleveland plant as a millwright and was so employed at the time of the hearing . About 3 or 4 weeks after attending the Qualman speech, Wilson was told by Supervisor Rozzell that the management officials of the plant knew that he was "having a part in the Union"; that he was not trying to change Wilson's mind but the Company would like to have him on their side working against the Union ; that there were plants "up North" that had gone out of business when the Union came in because the Union's wage rates were so high; and that if Wilson would "come to his side and work against the Union that he [Rozzell ] would .. . do everything that he could to keep my [Wilson's] job." c. Paul Tatum Tatum was working at the Cleveland plant when the Union began its organizational activity and also at the time of the hearing. During the 6 weeks prior to the election, Supervisor Grieve talked to Tatum several times about the Union. On one of these occasions, the precise time not being fixed, Grieve asked Tatum what he thought about the Union Tatum refused to answer, whereupon Grieve stated, 81n the preparation of Appendix A, I have not included the underlining and other markings which appear on the original exhibit No 7. These markings were on the original exhibit when it was offered, and being made with ink could not be erased. As this document was at all times prior to the hearing in Qualman's possession, the markings are presumably his, and indicate the portions of the speech which he emphasized 9 The evidence is uncontradicted that Qualman was instructed by counsel to read the speech word for word, and to have someone with a copy of the speech follow him each time he read it. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in substance, that the time was not right for a union because work was not good, and that if the Union did come into the Cleveland plant it "would be like the Rossville plant; it would shut down." d. Henry Moss Moss worked at the Cleveland plant as a spinner and was so employed at the time of the hearing. In the latter pan of August 1961, Supervisor Cheek asked Moss whether he (Moss) had attended a union meeting. When Moss refused to answer, Cheek stated that the failure to answer made no difference, they knew about it in the office and that Bernard (another supervisor) had sent him to ask Moss about it. e. Wayne Gatlin Gatlin worked in the carding room at the Cleveland plant and was so employed at the time of the hearing. Shortly after he attended the session that he heard Qualman's speech, Gatlin was asked by Personnel Manager Shelton whether he (Gatlin) had signed a union card and what he thought about the Union. Shelton also told Gatlin that if he knew of anyone who was for the Union, he (Shelton) would appreciate knowing about it, and that such people would not be fired. Also on the day of the election, or the day preceding it, Gatlin asked Supervisor Brackett as the latter passed Gatlin's work station,10 if he thought the plant would close if the Union came in, and Brackett replied, "Hell yes, anybody with any sense can see that." Later during the same day, Gatlin sought out Supervisor Cheek and asked him what he (Cheek) thought about the Union. Cheek replied, "Just look 30 miles down the road." Gatlin assumed this reference was to the Rossville plant which was then in the process of liquidation.ll f. Buddy Swafford Swafford worked at the Cleveland plant as an "overhauler," and was so em- ployed at the time of hearing. Late in August 1961, Supervisor Cheek asked Swafford if he had been to a union meeting, and stated that Qualman would be around to talk to him about it. A few minutes after Cheek left, Supervisor Bernard asked Swafford "if he was hot about the Union." The following morning Super- visor Brackett asked Swafford if he had been to a union meeting in Athens. When Swafford denied having attended such a meeting, Brackett stated that Qualman heard he had, and that he told Qualman that he (Brackett) knew Swafford and would talk to him about it. In addition, shortly before the election, Swafford was told by Plant Manager Qualman that he should consider his vote seriously; to think not only about his own job, but about the jobs of the other employees in the plant.12 g. Sammy B. Moore Moore worked as a "fixer" in the carding room at the Cleveland plant, and was so employed at the time of the hearing. In the 2 weeks prior to the elec- tion Moore had several conversations with Supervisor Bernard. On one of these occasions, Bernard told him there was to be a union meeting that night and asked him (Moore) to attend and report what happened.13 On another such occasion Moore and Bernard were discussing the closing of the Rossville plant and Bernard stated that if the Union gets in here it will be just like Rossville; 850 people out of work.14 10 At the time of this occurrence Gatlin did not work under Brackett's supervision "Notices stating that the Rossvllle plant was being liquidated had been posted by Respondent on the bulletin board at the Cleveland plant on September 26, and again on or about October 19, 1961. 12 Swafford testified that this conversation took place the morning of the election Qualman denied that he was in the mill proper at any time during that day, but admitted he was in the mill proper virtually every day prior to the election. In view of my find- ing that the statement related by Swafford was made shortly before the election, I deem it unnecessary to determine the precise day on which it was made 18 This meeting was not held and Moore so advised Bernard. 14 Moore testified to some other instances which, the General Counsel contends, con- stituted unlawful interrogation. I find the evidence with respect to those instances too confusing to support a finding. CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 93 h. Austin Lowe Lowe worked for Respondent in its dressing department, but left this employ- ment shortly after the election on November 16. While so employed his foreman was Lewis Hayward. About a month before the election, Lowe and Hayward engaged in conversation about the Union in the course of which Hayward talked of plants in New England where the Union got in and when they did the plants shut down, and said that if the Union got into the Cleveland plant he believed it would shut down. Also, on the day before the election, Hayward told Lowe and two other employees 15 who were with Lowe, that they should vote for him (Hayward) because "if the Union get in we will all be on the street walking." i. Lottie Miller Miller worked at the Cleveland plant as a ring spinner, and was so employed at the time of the hearing. Approximately 2 weeks before the election, Supervisor Rooks came to Miller's work station with a sample ballot and told her that while he could not tell her how to vote, he wished she would vote "no"; she would thereby not only be helping the Company, but also helping herself.16 The testimony of the several witnesses detailed in subparagraphs a through i, above, constitutes the evidence which, on the whole record, including my observa- tion of the demeanor of the witnesses, I have credited. Contradictory evidence by the various supervisors involved has been fully considered and discredited. Additional Facts Bearing on Objections to the Election As set forth above, Plant Manager Qualman told the employees in the course of his speech delivered to them in early September 1961, that Respondent was seeking a purchaser for the Rossville, Tifton, and Cleveland plants, either separately or as a unit. On or about September 26, 1961, a notice signed by Plant Manager Qualman was posted on the bulletin board at the Cleveland plant stating that in view of Respondent's inability to find a satisfactory purchase, the Rossville plant would be liquidated. The notice concluded with the statement: "I am hopeful we will be able to continue operations in Cleveland." On or about October 19, 1961, a further notice, addressed to employees at the Cleveland plant, was also posted.17 A copy of said notice is attached as Appendix B. The Union contends that by permitting this notice to remain posted during the "critical period," Respondent threatened to close the plant if the Union succeeded in the election, and by this and other acts engaged in conduct which affected the results thereof.18 The complaint issued herein does not allege that said notice violated Section 8(a)(1), either stand- ing alone or in context with related conduct. Concluding Findings a. Interference, restraint, and coercion On the basis of the above findings which are derived from the evidence which I have credited, as detailed above, and on the whole record, I find and conclude that Respondent violated Section 8(a)(1) of the Act by the following: 1. The speech made by Qualman to the assembled employees, the text of which appears in attached Appendix A. I find this speech, viewed and considered in context, was coercive because I believe it was framed and delivered with the intent and purpose of conveying to the employees the "message" that their job security would be seriously impaired, if not totally obliterated, should they select the Union as their bargaining representative, although the use of such words was carefully 18 Harold Davis and Ernest McHouston. Neither testified in this proceeding. 18 Miller's testimony in this regard is uncontradieted on the record. 17 The representation petition in this case having been filed September 14, 1961, the "critical period" runs from the direction of election which, in the instant case, was October 24, 1961. See The Ideal Electric and Manufacturing Company, 134 NLRB 1275 Absent evidence showing that the posted notice was removed from the bulletin board at some prior time, I shall assume that it remained posted during the entire "critical period " 18 On this aspect of the objection the Regional Director in his order of February 13, 1962, concluded that the notice, being devoid of any reference to the Union, its organiza- tional activities, or the election, did not on its face constitute a threat of plant closing conditioned on the success of the Union in the election, and that such an inference could reasonably be drawn only if the remaining allegations in objection No 1, as to which a hearing had previously been directed, were found meritorious 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD avoided. That the employees got that "message" explains, I think, why the six witnesses for the General Counsel, who in my opinion were honestly trying to tell the truth as they understood it, testified that Qualman said the plant could not operate under a union and would close if the Union came in. In other words, to them the words Qualman used meant that if the Union came in the plant would close. According to Qualman's own testimony, he first spoke from notes, telling the employees, among other things, that Respondent had been operating at a loss because of reduced demand for its then product; and that it would be necessary to produce a new type of product that would be more difficult to manufacture. From his prepared text Qualman told the employees that he had prior experience with TWA, the Union involved here, and that this experience had led him to the view that its "main objective is to create discord and disharmony" between the Company and its employees, that the Union could obtain for them no benefits in working conditions which they did not presently enjoy, and "Wherever there are unions there is trouble, strife, and discord, and that a union would not work to our employees' benefit but to your serious harm." He referred to his experience in a woolen mill in Portland, Oregon, which, he said, was paying the highest wages in the industry, had difficulty meeting competition, and was "now completely closed and liquidated," and pointed out that wage rates and prices of a product must be competitive "or the plant cannot stay in business." He then tells the employees that he is "sure" that if "we all work in harmony [and] cooperate fully," the plant can be put back "on its feet," but "discord, disharmony, and interference is bound to adversely affect" that objective, and expresses the "sincere hope" that the "union activities at the front gate will not stop us from having cooperation . . In substance, I believe that what Qualman was telling the employees, subtly to be sure, and what the employees reasonably understood him to mean, was that the plant could only operate in an atmosphere of harmony and cooperation; that the presence of a union means "trouble, strife and discord"; hence if the Union comes in our plant will be unable to operate and will have to close. Having been delivered for that purpose and being susceptible to that interpretation, Qualman's speech was clearly coercive. "Slight suggestions [made by an employer who holds the power of economic coercion] may have telling effect among men who know the consequence of incurring that employer's strong displeasure" (International As- sociation of Machinists, Tool and Die Makers Lodge No. 35 (Serrick Corp.) v. N.L R.B., 311 U.S. 72, 78), and those suggestions "though subtle may be as potent as outright threats of discharge" (N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 600). A further basis for holding the Qualman speech coercive is the fact that it con- tains the statement, referred to above, ". that a union would not work to our employees' benefit but to your serious harm," and at another point states, "It is our definite view that if the Union were to come in here it would not help you and it could even work to your serious harm " The Board has held such a statement to be coercive and proscribed by Section 8(a)(1). See White Oak Acres, Inc., 134 NLRB 1145 (IR); Rea Construction Company, 137 NLRB 1782 (IR). 2. The statement by Supervisor Sartin to employee Reed. 3. The statements by Supervisor Rozzell to employee Wilson. 4. The statements by Supervisor Grieve to employee Tatum. 5. The interrogation of employees Moss, Gatlin, and Swafford by Supervisors Cheek, Shelton, Bernard, and Brackett. 6. The statements by Supervisor Bernard to employee Moore. 7. The threat of plant closing by Supervisors Brackett and Cheek to employee Gatlin. In the circumstances, Cheek's statement to Gatlin, "Just look 30 miles down the road," could have had reference only to the closing of the Rossville plant. 8. Plant Manager Qualman's statement to employee Swafford, which, in context, was simply a reiteration of the threat of possible plant closing originally made by Qualman in his prepared speech to the employees. Although Swafford did not testify that he heard Qualman's speech, I find that he either heard it made by Qualman, or learned of it from his fellow employees. This seems clearly inferable in view of the testimony that (1) the speech was made to all employees; and (2) the speech and the liquidation of the Rossville plant was virtually the sole topic of conversation about the plant for several months. 9. The statement by Supervisor Rooks to employee Miller, which I find and con- clude was in context a reiteration of the threat of possible plant closing which she testified she had heard in Qualman's speech. 10. The statements of Supervisor Hayward as testified to by employee Lowe. The statement made by Hayward on the day preceding the election was in effect a threat that the plant would close if the Union was successful in the election. CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 95 Conclusions With Respect to the Objection to the Election By the conduct set forth in paragraphs 6 through 10, above, which occurred be- tween October 24 and November 16, 1961, except the statement made by Super- visor Hayward to employee Lowe concerning the closing of plants in New England,19 Respondent created an atmosphere of fear of reprisal which interfered with the employees' freedom of choice in the selection of a bargaining representative. This conduct was resorted to by Respondent, I find, in order to wean employees from union membership, sympathies, and affiliation, and to frustrate the Union in its preelection organizational efforts. The notice which remained posted in Respondent's plant during the critical period (attached as Appendix B), and which the Union contends is a threat to close the plant, can be so regarded only if it be concluded that the notice and other conduct of Respondent, emphasized in the minds of the employees the threats to close the plant if the Union won the election, which I have found were made to them. I find it unnecessary to decide that question in view of my conclusion, set forth above, that other conduct by Respondent requires that the election be set aside. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities found to be unfair labor practices in section III, above, occurring in connection with the operations of 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 Having found, as set forth above, that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. One of the more basic rights conferred upon employees by Section 7 of the Act, is the right to freely, and without coercion or restraint from an employer, ex- press his choice in a Board-conducted election designed to determine the wishes of the employees with respect to a collective-bargaining representative. Since it has been found that Respondent interfered with this right, an order commensurate with the violation found, and designed to assure to Respondent's employees the oppor- tunity to fully and freely exercise the rights guaranteed to them by Section 7 of the Act, is appropriate. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Cleveland Woolens, a Division of Burlington Industries, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By the conduct set forth in section III, paragraphs numbered i through 10, above, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 ,of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the respondent, Cleveland Woolens, a Division of Burlington Industries, Inc., its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any of its employees with respect to their views concerning or sympathies for Textile Workers Union of America, AFL-CIO-CLC, or any other "That statement is excluded because the evidence is insufficient to establish that it occurred during the critical period. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization, or with respect to their attendance at union meetings or other concerted activities. (b) Threatening to close the plant if its employees select a labor organization as their collective-bargaining representative. (c) Promising benefits to any employee in return for a promise to work against a labor organization. (d) By threat of reprisal or promise of benefit, inducing or encouraging any of its employees to vote for or against any labor organization in any election conducted by the National Labor Relations Board. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its plant in Cleveland, Tennessee, copies of the attached notice marked "Appendix C.1120 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by a representative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it 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 to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Tenth Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps Respondent had taken to comply herewith?' It is further recommended that the election held on November 16, 1961, in Case No. 10-RC-5068, be set aside, and that said case be remanded to the Regional Director for the Tenth Region of the Board to conduct a new election at such time as he deems the circumstances permit the free choice of a bargaining representative 21 In the event of Board adoption of this Recommended Order, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Ex- aminer" in the notice. In the further event of enforcement of the Board's Order by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX A As you all know, Peerless Woolen Mills Plant, Rossville, Georgia voted on August 2 to have the Allied Industrial Workers Union as a bargaining agent for their employees. There have been a lot of questions asked of me by numerous employees as to how this may or may not affect the Cleveland operation and also as to whether this is the same Union that is now passing leaflets out at our front gate to all of you. To begin with, the Cleveland Plant is an entirely separate plant in which we manufacture our own products, sell our own cloth, fabricate our own lines, and it is an entirely separate operation from the Rossville Plant. This means that even though the Allied Industrial Workers Union now is recognized as a bar- gaining agent for the employees at the Rossville Plant, it does not under any circum- stances mean that they are also the bargaining agent for the employees here at the Cleveland Plant. In addition, to answer any questions pertaining to whether this is the same Union that is passing out handbills at our front gate, I want to tell you it definitely is not. The Union that is passing out the handbills here at the Cleveland Plant is the Textile Workers Union of America, and it has no connection with the Allied Industrial Workers Union except through the same affiliation with the CIO-AFL. This Textile Workers Union of America is the same Union which attempted to organize the Plant in 1957 and some of you who were here would well remember. I have worked with this same Union in three other plants previous to coming here, and from what I have seen, it seems to me that their main objective is to create discord and disharmony between the Management and the employees of the Company. In my opinion, there is absolutely nothing that this Union can provide CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 97 for you above and beyond what we are providing here at the present time pertaining to wages, fringe benefits, etc. The only thing that the Union can actually guarantee you is that they can put you out on a strike. Essentially you must all realize that Unions today are big business and in certain instances are much bigger than our business here, and they are essentially and basically interested in one main thing, and that is your payment of dues into their Treasury. To give you some idea, it will cost you approximately five to six cents an hour from your wages in order to belong to a Union, and this comes out of your own pocket and not the Company's pocket. If we are to develop and establish ourselves in the new type fabrics which we have to run in order to meet changing market conditions, it is going to require all the cooperation that we can possibly secure from each and every one of you. Discord and disharmony can only work as a disadvantage for successfully meeting this challenge and keeping this Plant on a profitable basis. You must realize that Unions do not provide your jobs-your jobs are provided by the Management of Burlington Industries and essentially the only wages or work provided by any Union is to their Union organizers such as we now have out at the front gate. THE COMPANY RUNS THE PLANT AND PROVIDES THE EMPLOY- MENT-NOT THE UNION. Having been in previous Union campaigns of this type, I can tell you right now you will be bombarded with all types of propaganda from the Union, criticising Bui; tgton, your Supervisors, your Management, and myself personally. The Union will, in all probability show you fantastic wage rates, but the important thing per- taining to these wage rates which the Union may attempt to show is to determine whether these wage rates are in plants which are still in operation or in plants that have already been closed. Also whether these rates are the rates of our competitors who are manufacturing our particular line of coating material or whether they are wage -ates of other Industries or other segments of our Industry. As an example, some of you who were here with us in 1957 when this same TWUA attempted to organize this plant, you will probably recall that this flyer that they passed out to you at our front gate at that time, which shows the pay checks and the wage rates of the workers at Portland Woolen Mills in Portland, Oregon. I can assure you they will not pass out this same type flyer in this campaign because the Portland Woolen Mills in Portland, Oregon is now completely closed and liquidated. I am not stating that the Union closed that plant, but I do know that from having worked at Portland Woolen Mills at Portland, Oregon in 1949 and 1950, at that time they were paying the highest wages in the Industry and it was rough sledding to meet our competition. Three years ago that Company asked this same Union to reduce their wage rates in order to bring them in line with other mills in the East who were making the same type products and under the same Union, and the Union flatly refused. The wage rates, as well as selling prices of fabrics, must be com- petitive or the plant cannot stay in business; therefore, on any fantastic wage rates which this Union may show you, it would be well to first find out whether that plant is or is not still in business. I know that some of you have already signed blue cards, and I want to make this statement to you at this time. I hold nothing against anyone who has already signed the blue card; but I do hope that you will stop and think once more as to what this Union can or cannot bring you. Remember, promises are cheap. Several employees have asked me how we feel pertaining to Unions, and I would like to make this statement so everyone thoroughly understands our position. Wherever there are Unions, there is trouble, strife, and discord, and that a Union would not work to our employees' benefit but to your serious harm. In view of this, it is our positive intention to oppose unionism by every legal means. No person will be allowed to solicit or carry on union organizing activities on the job. If anybody does so and thereby neglects his own work or interferes with the work of others, they will be subject to discharge. There have been numerous questions asked of me pertaining to the Union and I would like to answer them to all of you so everyone will thoroughly understand what the answers are to the questions which have been asked so far. 1. No employee will ever have to join a union to work in this plant. 2. No employee who joins a union will ever get any preferred treatment- nor will an employee who does not join the union. 3. If you are against the union and the union does come into this plant, you will still have your job, your seniority, and will never be discriminated against. 4. If you are against the union you cannot lose your job anymore than a person who is for the union. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. No Rossville employees have any right for any of your jobs here in the Cleveland Plant. 6. No union will ever run this plant. This plant is owned and operated by Burlington Industries. 7. You must remember that any promises made to you by the union outside of a strike, must be agreed upon, and approved by Management. The Union can make many promises but they cannot be fulfilled unless they are agreed to by Management of this Company. 8. The Union, if it should get in this plant, is your sole bargaining agent and speaks for all of you whether you join the union or whether you do not. 9. Signing a blue card does not mean that you are voting for a union. If the Union secures sufficient signed blue cards from you employees, then they can petition for an election and at this time if and when an election might be held, it will be by secret ballot and no one will know how you voted. I know you have all seen in the paper this week where Burlington has put the Rossville Plant, Cleveland Plant, and Tifton Plant up for sale, and I know you are interested in what this may or may not mean as far as the Cleveland operation is concerned. As I have told you previously, the Company lost four or five million dollars at the Rossville Plant during the past year and we have also lost some money here at Cleveland in the past six months. I am sure all of you realize that plants cannot continue m operation if they continue to lose money, and I am sure this is the reason that Burlington is offering these plants for sale. I have had the question asked of me: "Supposing they sell the Rossville Plant but continue to run the Tifton and Cleveland Plants-will we be able to continue to operate?" I would like to say this, that this plant is completely integrated and separate except for wool scour- ing and raw stock dyeing. If they should sell the Rossville plant, our wool could be scoured at the large scouring plant in Clarksville, Virginia, and we already have a space in our warehouse which is originally laid out for raw stock dyeing where this can be installed. Therefore, we would get our wool scoured at Clarksville, and in turn put in our own raw stock dyeing in the space laid out in our warehouse and this plant could continue to operate as a separate individual unit. Whether these mills will or will not be sold I cannot tell you at this time as I do not know whether they have any prospective purchasers, but I can say this-that if we can get this plant back on its feet and overcome our manufacturing difficulties and stay in the black, then either Burlington will run this plant or I am sure someone will be inter- ested in purchasing and continuing to provide the jobs for all of us here. This is the big, essential problem that faces us in the coming six months. It is my sincere hope that these union activities at the front gate will not stop us from having cooperation between everyone that is necessary to attain this goal. You will probably hear from our so-called "friends" out at the front gate that Burlington made a considerable sum of money last year, and is also making a con- siderable sum of money this year. I think it well that we all realize that Burlington is made up of approximately 114 different plants throughout the entire United States. But each one of these plants is a separate operation (only two of which have a union and this union was in those plants when Burlington purchased them), and each plant must stand on its own two feet. Therefore, do not be misled by our so-called "friends" telling you that Burlington made money and what I am telling you about this plant is false. I repeat to you again that each Burlington plant must stand on its own two feet. I am sure if we all work in harmony, cooperate fully, that this plant can be put back on its feet, but discord, disharmony, and interference is bound to adversely affect how quickly we can accomplish this. No union can make this Company or any other Company operate a plant that is losing money simply because there is a union representing the employees. In closing, I would just like to make the following statements to you pertaining to ourselves and the Union. 1. It is our definite view that if the Union were to come in here it would not help you nand it could even work to your serious harm. 2. We would like to make it clear that it is not necessary, and it is not ever going to be necessary, for anybody to belong to the AFL-CIO or any other Union in order to work for this Company. 3. Those who might join or belong to the Union are not going to get any advantages or any preferred treatment of any sort over those who do not join or belong to any union. 4. No person will be allowed to carry on union organizing activities in the plant during working hours. Anybody who does so and thereby interferes with his own work or the work of others will be subject to discharge. CLEVELAND WOOLENS, DIV. OF BURLINGTON INDUSTRIES 99 5. No employee talking or working against the Union will ever be discrim- inated against if the Union comes in, and will never lose their job, because of talking against the Union. I want all of you to know I have sincerely appreciated your loyal support and the wonderful job which you all have done in this operation here at Cleveland in the past and I am sure that if we all continue to work together in a friendly atmosphere that this plant will once again be the leading woolen mill in the United States. Please remember you are going to hear a lot of rumors from our so-called "friends" out at the front gate, but please always feel free to ask your Supervisor, your Department Head, your Personnel Director, or myself, personally, questions you may have on your mind pertaining to these rumors. You must remember that this is not a fight between the Company and the Union; in my opinion it is strictly a fight between you and the Union, who is attempting to secure you as dues paying members. The same law that gives this Union the right to campaign for your money also gives you the right to campaign against it. You have the right to protect yourself, your families, as well as the welfare of the community in which we live and the plant in which we work. In closing, May I thank all of you for your very kind attention, and if any of you should have any further questions at any time, please do not hesitate to contact me. Don't be misled. APPENDIX B NOTICE TO ALL PEERLESS WOOLEN EMPLOYEES AT CLEVELAND Regret to tell you folks that our operations at Cleveland, as well as Rossville and Tifton, have taken heavy losses over a considerable period of time and there are no present indications of improvement. At Cleveland this has been due in large part to a change in trade demand from the raw stock dye tweed fabrics, on which this plant operated successfully for several years, to piece dye face-finish fabrics, which require entirely different running techniques and the like. These latter fabrics are much harder to make, and require closer quality control from raw material right on through the finished cloth. We have detemined at least for the time being to continue to try to operate the Cleveland plant with the hope that it will be able to work its way out of its difficulties and be able to establish that it can and will operate successfully. We have had some problems here and we face many more. Whatever the reasons for our situation in Cleveland may be we have no doubt there have been some management and supervisory failures which have contributed in part to these conditions. For these reasons I want to emphasize to you that if the Cleveland plant is to be able to continue to operate we will need all of the help and suggestions that we can get for improving our situation. Our doors are open for the airing of any genuine, legitimate grievances and for discussion of any problems. At the same time we must ask that you take a very real interest in helping us out of the present situation, together with an understanding of what is required of you. I hope you will submit your criticisms, ideas and suggestions through supervisory channels and will give us your fullest cooperation in every way. I might close by saying that we were unable to sell the Rossville operation at a price more than a million dollars lower than liquidation value, so that it has been necessary to proceed with orderly liquidation. It is expected that the Rossville plant will be run out and closed by about December 31, 1961. We have sold the Tifton plant to J. P. Stevens. The purpose of this letter is to impress on all employees of this plant the gravity of the situation and the genuine need for all possible cooperation and better results if we are to continue operations. (S) J. SPENCER LOVE, Chairman of the Board. APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT interrogate our employees with respect to their views concern- ing or sympathies for Textile Workers Union of America , AFL-CIO-CLC, or 681-492-63-vol. 140-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any other labor organization, or with respect to their attendance at union meet- ings, or other concerted activity. WE WILL NOT threaten to close our plant if our employees select a labor or- ganization as their collective=bargaining representative. WE WILL NOT promise benefits to any employee in return for a promise to work against a labor organization. WE WILL NOT by any threat of reprisal or promise of benefit, induce or en- courage our employees to vote for or against any labor organization in any elec- tion conducted by the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization , to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL NOT in any manner interfere with the right of our employees to make a free and untrammeled choice in any election ordered by the National Labor Relations Board. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization. CLEVELAND WOOLENS, A DIVISION OF BURLINGTON INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with-its provisions. Gilmore Industries, Inc. and International Brotherhood of Elec- trical Workers, Local Union No. 1377, AFL-CIO, Petitioner. Case No. 8-RC-4757. December 12, 1962 DECISION ON REVIEW AND CERTIFICATION OF REPRESENTATIVES On August 14, 1962, the Regional Director for the Eighth Region issued a Supplemental Decision, Order, and Direction of Second Elec- tion in which he found that certain conduct of the Petitioner un- covered during the course of the investigation interfered with the elec- tion conducted on July 13, 1962, and directed that a new election be held.' Thereafter, the Petitioner, in accordance with the Board' s Rules and Regulations, filed a timely request for review of the Supplemental Decision in regard to the Regional Director's findings that certain remarks made prior to the election by a representative of the Petitioner and disseminated to other employees regarding the waiver of initiation fees in the event it won the election were a basis for setting the election ' The Regional Director found that the three objections filed by the Employer were without merit and overruled them. 140 NLRB No. 8.