Gary Steel Products Corp.

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gary Steel Products Corporation and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Case No. 5-CA-93171. October 23, 1963 DECISION AND ORDER On November 8, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 attached Intermediate Report. Thereafter, the General Counsel and the Charging Party filed excep- tions to the Intermediate Report, and supporting briefs. The Re- spondent did not file exceptions or a brief. 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 [Chairman McCulloch and Members Leedom 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 Inter- mediate Report, the exceptions and briefs, and the entire record, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner with the following modifications and additions. 1. The Board finds, in agreement with the Trial Examiner, that the Respondent did not violate Section 8(a) (5) or (1) by refusing to bargain with the Union. But we do not base this finding upon the grounds relied upon by the Trial Examiner. It is well settled that an employee's subjective state of mind in signing a union card cannot negate the clear statement on the card that the signer is designating the union as his bargaining agent.' Therefore, the subjective intent of the employees who signed the authorization cards in question did not vitiate their designation of the Union as their collective-bargaining representative, as the Trial Examiner incorrectly found.4 "We find no merit in the General Counsel 's exception to the Trial Examiner's ruling permitting W. C McReynolds to intervene in this proceeding on his own behalf and that of 62 other employees . The motion to intervene sufficiently raised the issue of possible misrepresentation by the Union's agent , Turner, in obtaining employee signatures to union authorization cards. Under such circumstances, the Board finds that the Trial Examiner's ruling constituted a valid exercise of his discretion, under the Board's applicable regula- tion Rules and Regulations , Section 102.29, Series 8, as amended Having permitted intervention and heard employee testimony on the misrepresentation issue, the Trial Examiner's further ruling, excluding testimony on this same subject by Turner, was clearly erroneous However, the ruling was not prejudicial to the Charging Party, in view of the basis on which this case is decided. 2 The General Counsel requested the Board to overrule the Trial Examiner's credibility findings However, it is established Board policy not to overrule a Trial Examiner's credibility findings unless, unlike here , they are clearly erroneous . Standard Dry Walt Products . Inc, 91 NLRB 544, enfd . 188 F 2d 362 (C A. 3). 3 Dan River Mills, Incorporated , 121 NLRB 645, 648. * In reaching a contrary conclusion , the Trial Examiner mistakenly relied upon Engle- wood Lumber Company, 130 NLRB 394, 395 , where the Board invalidated certain authorl- 144 NLRB No. 107. GARY STEEL PRODUCTS CORPORATION 1161 The Board, finds that the Respondent did not violate Section 8 ( a) (5 )^ or (1) for a different reason. On the basis of our review of the entire• record, and bearing in mind particularly the absence of any other un- fair labor practices, we are convinced and find that the General Counsel has failed to prove that the Respondent's refusal to bargain was motivated by a bad-faith doubt as to the Union's majority status, or by a desire to gain time for the purpose of destroying the Union's majority status.5 2. In adopting the Trial Examiner's conclusion that the Section 8(a) (3) allegations of the complaint should be dismissed, the Board relies not only upon the findings of fact in the Intermediate Report, with the exception noted below,' but also upon the following additional facts : (a) On April 17, 1962, Monroe, an alleged discriminatee, failed to report for work on a rush job being performed by the Respondent, after being expressly directed to do so by Williamson, his shop fore- man. Monroe was discharged the following day by Williamson be- cause of this absence from work. (b) At various times employees of the Respondent, to whom Brown (an alleged discriminatee) was assigned as a helper, complained to Brown's foreman, Williamson, that Brown reduced their work output and bonus because he lacked interest in and failed to apply himself to his work. Williamson, after observing Brown and confirming the complaints, discharged Brown for inefficiency and incompatibility. [The Board dismissed, the complaint.] zation cards, not because of the employees' state of mind at the time they signed them, but because of express representations, made to the employees by a union agent in order to obtain their signatures, that the cards were merely for the purpose of obtaining a Board election. 5 See Joy Silk Mills, 85 NLRB 1263, enfd. as modified 185 F. 2d 732 (C.A.D.C ) fi Contrary to the Trial Examiner, we do not rely on the finding in the Intermediate Report that the Respondent had no knowledge of the activities of Clark, an alleged discriminatee INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S C., Sec. 151, et seq., herein called the Act. The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO, hereinafter sometimes called the Union, on May 18, 1962, filed a charge against Gary Steel Products Corporation, hereinafter called the Respondent, and thereafter on May 28 filed an amended charge, and on July 16, 1962, a second amended charge, the charge and the amendments asserting that the Respondent has been engaging in and is engaging in certain specified unfair labor practices. The General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for the Fifth Region, on July 17, 1962, issued a complaint and notice of hearing against the Respondent , in which it is alleged that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3 ), and (5 ) of the Act. The Respondent filed timely answer to the complaint, effectively denying the substantive violations of the Act as set forth in the complaint. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the issues framed by the complaint and the answer, this matter came on to be heard before Trial Examiner Arthur E. Reyman at Lynchburg, Virginia, on September 19, 1962, and was concluded on September 21. At the hearing, W. C. McReynolds, on appropriate motion, was permitted to intervene on behalf of him- self and some 62 other employees of the Respondent. At the hearing, each party was represented by counsel and was afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to submit briefs, and present oral argument on the record. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF GARY STEEL PRODUCTS CORPORATION The Respondent, Gary Steel Products Corporation, is, and at all times material herein has been, a corporation organized and existing under the laws of the Common- wealth of Virginia. Its offices and principal place of business are located in Lynch- burg, Virginia, where it is engaged in the business of fabricating steel products. In the course and conduct of its business operations, the Respondent annually receives raw materials valued in excess of $50,000 at its Lynchburg, Virginia, plant from points outside the Commonwealth of Virginia, and sells and ships finished products valued in excess of $50,000 from its Lynchburg, Virginia, plant to points and places outside the Commonwealth of Virginia. The Respondent is and, at all times material herein, has been engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, is and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE (ALLEGED) UNFAIR LABOR PRACTICES Background In the latter part of January 1962,' Myrtus Lee Turner, a representative of the Union, approached Wilbur Brown, an employee of the Respondent, and introduced the subject of union organization of the Employer's plant in Lynchburg. After dis- cussing the possibility of organization and working conditions at the plant, Turner arranged to meet with Brown at a subsequent date in Lynchburg and they did meet at a motel when Brown informed Turner that he thought they had a chance of organizing the plant. Brown introduced Turner to other employees, there were sub- sequent meetings at a motel or motels near Lynchburg, and as a result a number of union authorization cards were signed by employees and given to Turner .2 i Unless specifically mentioned , dates hereinafter used are for the year 1962 2 Each of the printed authorization cards were in identical form , reading as follows: AUTHORIZATION FOR REPRESENTATION International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths , Forgers and Helpers, AFL-CIO Fill All Blanks Date I, the undersigned employee of (Name of Company) hereby select the above named Union as my collective bargaining agent. Signature of Employee Name of Employee-Please Print Home Address City Class of Work Shift Telephone No Badge or Clock No This is not an application for membership This card is for use in support of the demand by this Union for recognition from the Company in your behalf, or for an NLRB election. GARY STEEL PRODUCTS CORPORATION 1163 A number of signatures of employees to authorization cards were obtained through roadside meetings or at the homes of some employees until Turner had in his possession some 36 cards, 5 of which were dated February 1; 1 on February 2; 2 on February 5; 12 on February 7; 2 on February 8; 1 on February 9; 1 on Febru- ary 13; 1 on February 14; 4 on February 15; 2 on February 19; 3 on February 20; 1 on February 21; and 1 on February 27. According to the records of the Com- pany, there were 68 employees at work or on the payroll on March 5.3 Under date of March 5, 1962, Turner as staff representative of the Union, addressed a letter to the Respondent, advising the Company that the Union had been selected by a majority of the Company's production and maintenance employees as their collective-bargaining representative, requested recognition of the Union as the exclusive bargaining representative of the employees, offered to submit signed authorization membership cards to a neutral third party for verification of signa- tures, and suggesting a meeting for the purpose of selecting such a third neutral party by mutual agreement. Under date of March 12, 1962, the Respondent, by its president, replied to Turner's letter as follows: We have received your letter of March 5 claiming that your union represents our employees. We cannot believe that your union represents an uncoerced majority of our employees in any appropriate bargaining unit. We would like to have the controversy resolved through appropriate procedures. We know of no procedure better than that provided for through the facilities of the National Labor Relations Board. It is our suggestion then that you proceed to file a petition for election with the Labor Board thus procuring a prompt election wherein our employees by secret ballot may indicate their free choice as to whether they wish to be or do not wish to be represented by your union? The Union initiated a representation case, and on May 2, 1962, the Regional Direc- tor issued a Decision and Direction of Election. Case No. 5-RC-3774. (Not published in NLRB volumes.) It was found that All production and maintenance employees, including truckdrivers, the inspec- tor, and the janitor employed by the Employer at its Lynchburg, Virginia, plant, but excluding all office clerical employees, confidential employees, the airplane pilot, guards, watchmen and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within Section, 9(b) of the Act. Counsel for the Respondent at the hearing offered to stipulate that this was an appropriate unit. He said that he was willing to stipulate the finding of the Regional Director and to add that the Respondent did not appeal from this finding and that the unit on March 5 or March 12, either date, would be the same as the unit on whatever might be the appropriate unit on May 2. This proposed stipulation was not opposed by counsel for the General Counsel. There was considerable discussion at the hearing concerning whether or not Hart- well H. Gary III, should properly be considered a member of the bargaining unit, inasmuch as the General Counsel seems to feel that he as the son of the president of the corporation, was the employee of a parent. There is nothing in the record to, reflect the fact that this is a wholly owned corporation in the sense that the father, H. Hartwell Gary, Jr., owns all of the stock or that his family owns all of the stock in the corporation. The matter becomes moot, in view of the fact that the inter- position concerning the validity of the authorization cards signed in February over- rides the Union's alleged majority status on March 12. The testimony herein shows that the bargaining unit membership shown through authorization cards was depleted by the intention of enough employees to ask for an election, and not to grant repre- sentation to the Union. Consequently, the inclusion or noninclusion of Gary Third would make no difference, in respect to the alleged refusal to bargain. The Respondent, at the hearing, called a number of employees who had signed authorization cards, who each testified in effect that the signing of the card obtained by Turner and others was because he did want an election; and his signature was not for the purpose of authorizing the Union to represent him immediately for collective bargaining purposes. 8 These included production and maintenance employees, described below as constituting an appropriate unit * It should be noted here that the complaint asserts a refusal to bargain by the Respond- ent on March 12 ; that the refusal so alleged is grounded upon the letter of the Respondent to the Union suggesting that the Union avail itself of the procedures of the Board to, determine the question of representation. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richard Phelps Wells said he signed a card to have an election for or against the Union and for no other reason; Lloyd Campbell said that he signed a card only to have a secret ballot as to whether the Union should come in; Richard Taylor was told at his home that the purpose of signing a card was for an election only; Urie Youngblood testified that when he signed the card at Harvey's Motel he was told that there would be an election; Carlton Fisher said that he signed the card "to get an election"; James Bass testified to the same effect; Mack Almond said that he did not want the Union without an election ; Harry Hess, Steven Walthall, Charles Moses, Charles Drinkard, Robert Elaein, John Preston Harris, Ernest M. Robinson, Curtis Reynolds, and Kenneth Other each testified either to the effect that he wanted an election or had signed an authorization card subject to condition there would be an election. At least one witness called by counsel for the General Counsel testified to the same effect. Melvin Warren Mays said he signed an authorization card at his home on February 8 at the suggestion of James Marks. On cross-examination he was asked a question and answered it, as follows: Q. (By Mr. ALEXANDER.) Mr. Mays, have you signed any statements to the effect that when you signed this card you were told that you were asking for a union election and that you were not asking for the union to bargain for you? In other words, that the employee should be allowed to vote by secret ballot as to whether he wanted an election? A. Well, the understanding that I had there would be an election, and it would be decided then whether the union would come in or not. Thus, if it is to be taken that these men were credible witnesses, as I do, the asserted absolute majority of the Union as of March 5 or March 12 is destroyed. Having observed the witnesses, I think each one of the men I have mentioned is worthy of belief, and I believe and find that they signed the several authorization cards under a misapprehension, and with no intention that the Union then and there be authorized to demend a contract from the Respondent. A number of cases have been cited by counsel in support of their respective posi- tions in regard to whether or not, under the circumstances of this case, the Respondent can be accused of a refusal to bargain on the basis of its letter of March 12.5 Englewood Lumber Company, 130 NLRB 394, involves a case where employees were told that the authorization cards were necessary in order that the Board might conduct an election ; there the Union did not tell the employees that by signing cards they were authorizing the Union to represent them. National Labor Relations Board v. H. Rohtstein & Co., Inc., 266 F. 2d 407, 410 (C.A. 1), in similar case, refers to " . dubious authorization of such a character as to invalidate the designa- tion." National Labor Relations Board v. Abrasive Salvage Company, Inc., 285 F. 2d 552, 555 (CA. 7), involved a situation wherein the court found . it is clear from the record that a majority of the employees thought by signing the cards they were petitioning for an election." American Rubber Products Corporation v. National Labor Relations Board, 214 F. 2d 47, 54 (C.A. 7), on the question of refusal to bargain, holds in part: Even if there was no direct evidence of statements of employees, such as we have in this case, expressing disapproval of the union leadership, it would appear that the inferences deductible from this record might well justify a reasonable doubt in the mind of the petitioner as to the validity of the union's claim that it . . . represented a majority of the employees. Again in Morris & Associates, Inc., 138 NLRB 1160, the Board held: . . . as the cards secured by the Union as proof of its majority status were secured on a representation . . . that "other than for the election, cards were not binding on people who signed them," they were unreliable for the purpose of establishing the Union's majority status. Many other cases have been cited by each of counsel. I think the overwhelming testimony here shows that Englewood Lumber Company, supra, serves as a main guidepost here. 5 There is testimony in the record to the effect that Turner and one of the other union representatives attempted to see President Gary or another official of the Company just prior to the mailing of their letter of March 5. However, it has not been proven that Gary or any other official deliberately avoided seeing these men GARY STEEL PRODUCTS CORPORATION 1165 As noted above, I credit the testimony of those employees who first signed authori- zation cards, thereafter signed a petition introduced here by the Intervenor and his associates, and third, their testimony at the hearing herein. Consequently, I am unable to find a refusal on the part of the Company to bargain in good faith. I think the Company was correct in questioning the actual majority claimed by the Union on March 5. Accordingly, I shall recommend dismissal of the complaint insofar as its allegations of violations of Section 8(a)(5) and derivative violations of Section 8 (a) (1) are concerned.6 The 1962 Wage Increase Under date of February 20, 1962, the Company posted a notice to all shop em- ployees, reading as follows: IT HAS ALWAYS BEEN THIS COMPANY'S POLICY TO KEEP ITS WAGE PATTERN IN LINE WITH OTHER PLANTS IN THE COMMUNITY. WE HAVE LEARNED THAT SEVERAL OTHER PLANTS WILL GRANT WAGE INCREASES TO THEIR PEOPLE SOMETIME BETWEEN APRIL 1st AND MAY 1st AND IN LINE WITH THIS, WE HAVE GIVEN APPROVAL TO GRANT OUR PEOPLE AN INCREASE ON OR BEFORE MAY, 1, 1962. WE HAVE NOT WORKED OUT THE DETAILS BUT WILL TRY TO DO SO AS SOON AS POSSIBLE AND WHEN THIS INFORMATION IS AVAIL- ABLE YOU'LL BE NOTIFIED BY YOUR FOREMAN AS TO HOW YOU WILL PERSONALLY BE AFFECTED. This notice was signed by H. H. Gary, Jr., president. The increase was made effec- tive as of April 30, and was in effect a general increase, the amounts varying within certain wage rates or job classifications. This increase, according to President Gary, was the first made for about 2 years prior thereto. There was, prior to the general wage increase of April 30, and thereafter, an in- centive system in effect based upon an 80 percent of efficiency standard. At an effi- ciency rating of 80 percent an employee eligible to receive such a bonus receives it in increasing amounts according to how far his efficiency production standard measures above 80 percent. As simply stated by President Gary: If a man attains the task in 125, if one and a quarter times the task, the time of the task, he has an efficiency of 80 percent. If he attains the task in the time that is allowed for the task, he has an efficiency of 100 percent and as he decreases the amount of time that he takes to perform the task, his efficiency increases .... At an efficiency of 80 percent, he gets no bonus but as his efficiency increases from 80 percent upward, his bonus is increased accordingly and in direct pro- portion to the increase in his efficiency. The complaint alleges that in March, the Respondent announced a general wage increase, which is considerably at variance with the proof insofar as date is concerned. Also lacking within the record is any showing that at the time the Respondent an- nounced the general wage increase on the date it did, it had any direct knowledge of the efforts of Representative Turner and some of the employees, including Brown, to obtain authorization cards running in favor of the Union to represent the em- ployees. President Gary, in his testimony, referred to the names of several com- panies in the industry who, he was informed, were about to grant wage increases at about the same time he made the announcement. A survey of plants in and around the area, Gary said, was undertaken to determine rates of pay; that this was at a time when the Respondent had been losing employees to General Electric Company, Babcock and Wilcox, and H. K. Porter Company. At the time, he said, the Respondent wages were found to be fairly comparable but that Porter contemplated an immediate wage increase which, it may be inferred, Gary felt must be met in order to forestall losing other employees. Gary felt that it would be advantageous for his company to announce a wage increase prior to Porter announcing theirs. I cannot infer, as the General Counsel suggests, that at the time the wage increase was announced, the Respondent had knowledge of union organizing activity. Indeed, the secrecy used by the Union in its organizing efforts, as mentioned above, would 9 Joy Salk Mills v N L IL.B., 185 F. 2d 732 , 742-743 ( C.A.D C ) ; The Walmac Company, 106 NLRB 1355 , 1356 ; A L. Gilbert Company, 110 NLRB 2067 , 2069-2070 Cf iVinn- Dixie Stores, 138 NLRB 1355 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leave an opposite inference. Therefore, I find a failure of proof of these allegations- of the complaint. Alleged Threats of Discharge or Other Reprisals The complaint alleges that on or about May 18, 1962, President H. H. Gary, Jr., threatened the employees of the Respondent with discharge or other reprisals if they became or remained members of the Union or gave any assistance or support to it. The proof in support of this allegation of the complaint rests mainly upon a letter dated May 18, 1962, signed by President Gary, directed to all employees of Gary Steel Products Corporation. At the time of the publication of this letter, union organizing activities were well known to the employer, as is apparent from the face of the communication. Although it is lengthy, it seems expedient , since it is a matter of judgment to determine whether or not its content contains threats of discharge or other reprisals, to set it forth in full: To All Employees of Gary Steel Products Corporation Lynchburg Plant- Tuesday, May 29, will be the day for you to decide whether you do or do not want the Boilermakers Union to come into this operation. The voting place for the election on this question will be here at the Plant. The time for voting will be from 9:30 a.m. to 10:30 a.m. on the date named, that is, Tuesday, May 29. You will be able to vote on Company time without any loss of pay for the time you spend in voting. For a long while now the Union representatives have been around from time to time talking with many of you, visiting some of you in your homes, etc. We have not been bothering you about the matter nor worrying you about it one way or the other, but the time is now at hand for you to make up your minds, and we would like to make sure that you give serious thought to this matter before you reach a decision. The Union has already made some critical remarks about our writing to you on this subject. The Union, of course, would prefer that you not hear or read anything except what comes from it. Our feeling, on the other hand, is that you should not decide a matter as important as this without considering all of the facts from every standpoint. Union organizational campaigns are, of course, nothing new to Gary Steel employees. Many of you were here when the Steelworkers Union tried to get into this Plant on two occasions several years ago. Some of you were at the Rocky Mount Plant when that same Union tried to get into there in 1961. For all of you however-those of you who were with this Company on these occasions and for those of you who were not here-this is an important question which must be decided. The Union may make a great point of the fact that some of the things which we will bring to your attention have been said before. That, of course, is so, but it seems to us that whatever considerations are sound and true should be given heed and attention-no matter that they have been said before. You are now faced with the necessity of deciding this issue for yourselves and for your future, and we think it is only fair and right that you should hear the truth on the whole matter before you make up your minds about it. We hope that you will understand that we are not expecting, and we are not asking, you to do any favor for the Company on this matter. You should decide whether to vote for this Union or against this Union entirely on the basis of whether or not you believe that a Union would be to your best interests. If a Union were to come in here, would it benefit you? Would it be good for you or bad for you? These are the questions for you to decide. Here are some of the facts which you should not overlook:- In the first place, the Union has sent its organizers here for one reason and one reason only-for the purpose of getting some of your money. They want to come in here and get a check-off of Union dues so that they can get a slice out of your pay check before you get it, or even see it. They hope to collect from you people who work for this Company over $3,500 every year from now on. This will result in reducing your take-home pay by approximately three cents per hour. Of course, it is for you to decide whether you want the Union to have this money. But make no mistake, it is your money that the Union is after! What they are asking you to do is to vote for them and then start paying them. Nor will they trust you to pay them. What they want is a "check off" of GARY STEEL PRODUCTS CORPORATION 1167 Union dues out of your pay-so that they can get a part of your pay check before it even comes into your hands. And what does the Union say it can do for you? What do the organizers claim that they will get for you that you do not already have? With regard to pay, your wages and earnings are up with or better than the wages paid by anyone in our line of business in this entire vicinity. It is our hope and our intention that this shall continue to be so. You can count on that without hav- ing to pay any Union dues to accomplish it. And bear in mind that when people who work in unionized plants get through paying dues to the Union, their take-home pay is just that much reduced. You already have liberal vacations and vacation pay, paid holidays and insurance, including life, hospital, medical and surgical and sickness and accident coverage, paid for entirely by the Company, and other similar benefits-all of these you have without paying any Union dues for them. No Union obtained them for you, and no Union is required to keep them for you' And do you know of any Plant where the Company is more interested in the welfare of its employees than we are here at Gary Steel? As things now stand, you are free to come in and we always welcome you in to discuss your personal problems with us, and we always have done the best we could to assist you in working out your personal problems. A good many of you now own homes and automobiles because we have assisted you. Do you now want to give up your opportunity of coming in and talking over your problems with us? Another important thing to bear in mind is the steady work and full pay which you have had-without a Union. All along we have operated without lay-offs or curtailments-without any short time or short pay checks. Yet there are many people who are represented by the Boilermakers Union, but who are often on short time and short pay and do not know when they will work and when they won't work. Union organizers talk about job security and the advantages of Union con- tracts. Yet the plain fact is that Unions have not brought and cannot bring to the people whom they represent regular work or regular pay. They have not protected them and cannot protect them against short time, curtailments and lay-offs. Where business is bad, the Union does not make it any better. And usually the troubles which a Union brings make it more difficult to operate a plant. As many of you know this Company once had a plant at Norfolk, Virginia. The employees in that plant were represented by this very Union which is now trying to get in here at Lynchburg. Yet this Union did not assure full time work for the men in that plant. In fact, the Union did not mean the assurance of any work for them-for that plant has been closed down and out of business for several years. This is exactly the situation which exists in large areas of our country today. Look at Detroit for example-more heavily unionized than any other area in this country-and yet unemployment in Detroit is so great and so persistent that it is a distressed area. Oftentimes people fail to realize when they have a good thing. The organizers who work for the Union try to turn you against the management of this Com- pany in every way they can. But who do you believe is really more interested in your welfare-we who through the long years of the past have built up this business and are still trying to carry it on, or these organizers who want to collect Union dues from you? Do you think you will do better with us whom you know, and with this Company which keeps this operation going and meets the payroll or with these Union agents who are here today and gone tomorrow? Always you should bear in mind that it is the Company which furnishes your job and your pay check-not the Union. And always you should bear in mind that this Union will never furnish you a day's work nor a cent of pay. Now we, of course, do not mean to claim that everything is perfect here. We do know that we are constantly trying to improve things and we hope to keep on improving, and we would like to emphasize, as we have often tried to emphasize before, that if there is anything you wish to call to our attention at any time, there is no reason why you should not do so and we will sincerely welcome your doing so. We are all striving to maintain and continue the business of this Company, in an effort to assure its success on into the future and thereby also to assure jobs for 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you and security for you and for your families. But a successful future for this Company and for your jobs and security for you cannot be accomplished by any Union. It can only be accomplished through your loyalty and co- operation-and by all of us working and pulling together here in this Company. The truth about the Union is that it has no magic power to make things go the way it wants them to go. Of course, it can promise anything but carrying out its promises is an entirely different matter. When the organizers tell you they are going to come in here and make us do this or that or the other, they are seriously misleading you. Sometimes people have the idea that all they have to do is vote for a Union and then automatically higher pay and benefits of various kinds will immediately take place. Such an idea as that is absolutely in error. Voting for a Union does not automatically bring any increase or benefit to you whatever. And if the Union were in here, there would still be only one way it could try to force us to do anything that we were not able or willing to do and that would be by PULLING YOU OUT ON STRIKE. Now, without intending to seem abrupt, we hope you will realize and understand in advance that this Company has no intention of yielding to any such pressure as that-ever. Everybody knows that WHERE UNIONS ARE IS WHERE STRIKES GEN- ERALLY OCCUR. And everybody knows that strikes mean trouble and dissension, strife and misery, lost work and lost pay. From time to time you have heard and read of trouble that has come with a Union at other places- trouble that often ends up with violence and bloodshed. You know about various strikes in which people pulled out by their Unions have stood around day after day and week after week on picket lines, while their expenses meantime continued, their grocery bills mounted and obligations piled up on their homes, their automobiles and all their other belongings. And generally when the Unions have given up those strikes and told the people to go on back and get their jobs if they could, what was the net result for them9 What did the Unions gain for the people who were involved in those strikes? The answer as a rule was absolutely nothing except trouble and misery, debt and regret. It won't do to assume that this couldn't happen right here! Many times you have heard and read about this sort of thing taking place. People who went out on these strikes earned nothing. They drew no unem- ployment compensation. Debts piled up on them. There was violence and bitterness. Friends turned against friends and family against family. In many many cases the Union gained absolutely nothing for the people who were in- volved in these strikes. Instead, it lost everything for them. Such are the blessings that the Unions so often bring! There are various instances in which people have voted for a Union and soon after they voted for the Union, they were out on strike. While they were out on the picket lines, other people came and took their jobs. Through their Unions and their Union strikes they gained nothing. Instead, they lost every- thing, including their jobs! Now you may have been told that those who join and vote for the Union are going to get some advantages over other employees. We want you to know that this is absolutely in error. Those who join or belong to the Union are never going to receive any preferred treatment over those who do not belong. You can absolutely depend and rely on this:-It is not necessary, and it is not ever going to be necessary, for anybody to belong to the Boilermakers Union, or any other Union, in order to work for this Company. The law of Virginia guarantees this to you. Another important thing to think about is this. If this Union were to get in, who would be the people who would run it anyhow? Who would get to be the shop stewards and committeemen who would handle the affairs of everybody else? Look around you and see who is active in pushing this Union. Are they individuals whom you consider to be capable of handling your problems and into whose hands you are now ready to trust your business and your affairs? Up until now you have always been free to come in and settle with us personally any problems you might have. But if this Union were to get in here, this freedom and this right, which you now have, would be taken away from you and placed in the hands of the Union. In the last year or so, you have been hearing and reading a good deal about racketeering and gangsterism in some of the labor Unions. It has been there all along and is just now coming to light. It is a remarkable thing how working GARY STEEL PRODUCTS CORPORATION 1169, people over the years have paid out their hard earned dollars which are then taken and sent to men whom the workers do not know, have never seen, and never will see-men who take this hard earned money and strew it around in, gambling, personal speculation, all kinds of high living and racketeering and political manipulation. In light of all these considerations we hope you will realize the importance of your taking an active personal interest in the question of whether this Union shall be voted in or not. You may have been told, or you may have the idea, that if you don't want the Union, then you should just keep hands off and let those who do want the Union vote for it and bring it in if they wish. Now that is a very misleading and mistaken idea. If this Union were to get in, then it would represent those who do not want it as well as those who do want it. And if it were voted in, you could not just throw it out at will. You would be bound by its decisions whether you liked it or not. For example, there are approximately 65 employees in this Plant who will be entitled to vote. If only 30 employees actually vote and 16 vote for the Union, all of the 65 employees will be bound by the will of the 16 who vote for the Union. So when this election is held you can see the importance of everybody voting. Don't stand aside on the idea that the outcome won't affect you. It will affect YOU. Take a hand in the matter. Help make it go the way you want it to go. Otherwise, you may find yourself saddled with a Union you do not want. BY ALL MEANS VOTE IN THIS ELECTION. The voting arrangements will be simple. You merely go to the voting place and there you will be handed a ballot. Then you go into a private booth which will be provided there and mark an "X" on the ballot-either under "Yes," for the Union, or under "No," against the Union. Then you fold the ballot and drop it in the ballot box. You do not sign your name in any way. Nobody is entitled to know and nobody will know how you vote. Bear in mind that all of you who are against the Union are by law entitled to oppose the Union, and to talk and work against it, if you wish to do so. Remember also that in this election, you will be free to vote entirely according to your own judgment and convictions on the election day. You can vote against the Union even though at some time or other you may have signed a Union card. Now we hope you will think carefully about all of the things we have tried to bring out in this letter. As matters now stand, you have a steady job at good wages and a good place here to work. We all hope to make things even better. Do you see any good reason to bring this outside Union in, pay your money to it and at the same time run the risk of tearing apart everything that you now have? If you will study this whole matter thoroughly, we believe you will surely come to the conclusion in your own good judgment: That you stand to lose if the Union were to get in here and that you stand to gain by keeping it out! Sincerely yours, (S) H. H. Gary, Jr., H. H. GARY, Jr, Gary Steel Products Corporation. As I read the letter, it is a strong appeal by the Company to the employees to vote against the Union in the scheduled election. I find nothing in it, as forceful as it is, to constitute threats of loss of jobs or reprisal in the event the Union became suc- cessful in becoming the bargaining representative of the employees to whom the letter was addressed. I think the letter privileged, under the language of Section 8(c) of the Act as an expressing of views in argument and opinion, and nothing else. I might take a different view if, in the whole context of the case, the other allegations of unfair labor practices alleged were substantiated by proof. The testimony of Harry Morris, a former employee of the Respondent, regarding a conversation he had with President Gary as, he thought, before February 20, con- cerning the Union, is unreliable. He said that he met Mr. Gary around a mealtime in a cafeteria, that he always liked to joke with Mr. Gary, that at that time he asked Gary if he knew the "bogey-man" was around: And he said, No, he didn't. And he asked me what was going on. And I said, "I don't know. The guys are talking, a lot of them, about joining the Union." And he said, "Well, I tell you now there isn't going to be one here." 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said, "I will give it to anybody that wants it." If they do vote, he said, he would get rid of anybody that he said if he voted, he would padlock the gate. I gather, from the attitude of the witness, from his answer to questions directed to him on cross-examination, as well as on direct examination, that he approached Mr. Gary in a facetious mood when he inquired about the bogey-man, and that Mr. Gary answered him in kind. Morris' testimony is not worthy of consideration, in my opinion. He was called to identify an authorization card, in the first instance; the General Counsel called for the testimony adduced finally through him on an amend- ment to the complaint made at the very time Morris was on the witness stand and, mistakenly perhaps, allowed by me. The complaint herein alleges that on or about February 21 Charles Williamson, a foreman, threatened an employee with discharge because of his union activity; and that in about the latter half of March the same foreman interrogated an employee with respect to his union activities.? According to the testimony of Brown, Williamson told him in a conversation about a week before Brown was discharged that Gary did not like unions and had closed two plants that had been organized. The testimony of Calvin Clark is to the effect that Williamson told him sometime in March that "I hear you and Marks are signing them up right and left in the shop." Sam Scott, who worked as a handyman at Williamson's house at times testified that Williamson told him that he could find a hundred different ways to fire a man for. Williamson himself, who was a competent and credible witness, testified that he made no anti- union remarks to any person, especially Wilbur F. Brown, Franklin Monroe, or Calvin Clark, regarding their activities or their interest in the Union, nor had he made any threats against them in regard to their union activity. He denied categorically the casual statements attributed to him by the others. I credit Williamson. I find that the General Counsel has failed to carry the burden of alleged Section 8(a)(1) violations in connection with the activities of Williamson as a foreman. The Alleged Discriminatory Discharges The complaint alleges that the Respondent through its officers, agents, and super- visors discharged Wilbur F. Brown on February 26, Franklin W. Monroe on April 18 and Calvin R. Clark on May 8 because of their membership in, assistance to, and activity on behalf of, the Union "and/or because he engaged in concerted activities with other employees of Respondent for the purpose of collective bargaining or other mutual aid or protection." There is no doubt of the fact that Brown together with Monroe and Clark, were active in getting employees to sign union authorization cards during the month of February. There is no direct proof, and but slight infer- ence, that the Employer had any knowledge of the union activities of these men. The strongest case that can be made out on behalf of each of them is set forth by General Counsel in his brief which is quoted below: The discharge of Brown: On February 22 and 23, 1962, Turner, the union organizer, made an attempt to speak with Mr. Gary at the plant. He testified without contradiction that although he had seen Gary enter the plant on February 23, he was informed that Gary was not in. Turner had given his credentials which identified him as a Boilermaker representative to the receptionist. She left, taking the creden- tials with her, and was gone several minutes. When she returned she stated that Gary was not in. The following workday, February 26, 1962, Brown, the Union's initial contact man, was discharged. The reasons given at the hearing were incompatibility and inefficiency. Yet for the weeks preceding his discharge, Brown received sub- stantial bonuses. Equally significant is the fact that prior to his discharge Brown had received no complaints about either the incompatibility or the inefficiency. At the hearing held on his unemployment compensation claim no evidence was produced by Respondent to substantiate his claim of incompatibility and ineffi- ciency. A month prior to his discharge Williams, his foreman, had given him a reference for a mortgage loan on which it was stated that the prospects for his continued employment were good. In addition, Brown testified that Williams had mentioned the Union to him in a conversation about a week before he was fired and stated that Gary didn't like unions and had closed two plants that had 7 Charles Williamson is sometimes called Charles Williams in the transcript of testimony. GARY STEEL PRODUCTS CORPORATION 1171 been organized. Finally, with reference to both his activities and Respondent's knowledge thereof, Brown testified to an incident which occurred on February 23, 1962, the same day that Turner had attempted to see Gary. On this occasion Mr. Dozier, a supervisor, observed an employee hand Brown a map showing directions to his house. Finally, following his discharge Brown asked to speak to Gary but Gary refused to see him. In the circumstances considering the precipitous nature and timing, it is submitted that the discharge of Brown was a conscious and willful attempt to interfere with the activities of the Union in violation of Section 8(a)(3). Thereafter, as the incidents of Section 8(a)(1) involving Samuel Scott and Calvin Clark, and the Gary letter of May 18, and the discharges of Calvin Clark and Franklin Monroe demonstrate, Respondent continued his campaign to dissipate the strength and support the Union had theretofore gained. The General Counsel, thus, would have me pile inference upon inference. There is no probative fact on the whole record here, that the Respondent or any of the Respondent's supervisors or agents had knowledge that Brown, Monroe, or Clark were active in the Union. Indeed, the Union organizing efforts were surreptitious, and without regard to the fact that an employer usually hears rumors, it cannot be found as a fact that any one of these three men were discharged because of their union activities. Indeed, on the basis of the testimony of these men, I find that they were fired for cause. Clark, one of the discriminatees, admitted that he had been chided by his superintendent, Garrison, not once but several times for loafing. It seemed to me that at the hearing, Brown had gone out of his way to try to tell Williamson that he was active in the Union, and it is not beyond the bounds of reason or inference that Brown was deliberately attempting to be discharged. William Garrison, superintendent of the Respondent, testified with respect to the discharge of Clark; I am satisfied that Clark was discharged for cause and for loafing. The testimony of Garrison leads me to believe too, that Brown made no particular effort to perform his duties during the later weeks of his employment, particularly after he became active in the Union .8 Concluding Findings I find that the Respondent has not and is not engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), or (5) of the Act; that the General Counsel has failed to sustain the burden of proof in these respects, and, therefore, the complaint should be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and on the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Gary Steel Products Corporation, the Respondent herein, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. 4. The General Counsel has failed by the preponderance of evidence to support the allegations of the complaint. 5. The complaint herein should be dismissed in its entirety. [Recommended Order omitted from publication.] 'Franklin W. Monroe did not testify at the hearing-, however, I am satisfied on the basis of the testimony adduced on behalf of the Respondent through Garrison, Dozier, Williamson, and others that he was discharged for real cause, and not on the basis of subterfuge because of his union activity. 727-083-04-vol. 144-75