Ideal Baking Co. of Tennessee, Inc.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, regardless of the Union's actual majority status, the evidence upon which Respondent relied plainly furnished reasonable grounds for doubting the Union's majority; and concurrently with giving notice of termination of the contract, it initi- ated a representation proceeding in which the issue could be determined by the Board. I therefore conclude and find that the Respondent was entitled to assert its doubt of majority in refusing to furnish the information requested by the Union on Novem- ber 12, and in refusing to meet and bargain for a new contract as requested on December 18. Because of those conclusions I do not reach the argument of the parties concerning the proper type of remedial order to be entered assuming that unfair labor practices were found which did not contribute to the Union's loss of majority. Cf. Midwestern Instruments, Inc., 133 NLRB 1132; Mission Manufac- turing Company, 128 NLRB 275. However, it is to be noted that the Union's loss of its following occurred before the conduct with which Respondent is charged. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. 2 The Union is a labor organization within the meaning of Section 2 ( 5) of the Act. 3. By informing an employee that a layoff would be necessary if the electricians persisted in their efforts to obtain a wage increase , Respondent engaged in interfer- ence, restraint, and coercion within the meaning of Section 8 (a) (1) . 4. Except as stated in conclusion of law No. 3, supra, Respondent has not en- gaged in unfair labor practices as alleged in the complaint. RECOMMENDATION As I find that the single isolated violation of Section 8(a)(1) was too minor in character to warrant the issuance of a remedial order,? I recommend that the com- plaint be dismissed in its entirety. 7 Cf. Middletown Manufacturing Company, Inc, 141 NLRB 234. Ideal Baking Company of Tennessee, Inc. and American Bakery and Confectionery Workers International Union , AFL-CIO Ideal Baking Company of Tennessee, Inc. and American Bakery and Confectionery Workers International Union, AFL-CIO. Cases Nos. 26-CA-1167 and 26-RC-1663. June 28, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On April 20, 1962, Trial Examiner Frederick U. Reel issued his Intermediate Report in the above-entitled consolidated proceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the com- plaint be dismissed. He recommended, however, as more fully set forth in the attached Intermediate Report, that the representation election held on October 18, 1961,' in Case No. 26-RC-1663, be set aside and a new election held. Thereafter, the General Counsel, American Bakery and Confectionery Workers International Union, 1 Unless otherwise indicated, all events described herein occurred in 1961. 143 NLRB No. 14. IDEAL BAKING COMPANY OF TENNESSEE, INC. 547 AFL-CIO, herein called the Union, and the Respondent, filed excep- tions to the Intermediate Report and supporting briefs. 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, briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent herewith. After a hearing on a representation petition filed by the Union, the Regional Director issued a Direction of Election on September 25, 1961. Thereafter, the election was held among the Respondent's em- ployees at its Murfreesboro, Tennessee, plant, on October 18, 1961. The Union lost the election by a vote of 29 to 28. The issues now to be decided in this proceeding are whether or not certain preelection conduct of the Respondent was violative of Section 8(a) (1) of the Act, and whether or not this same conduct exceeded the bounds of permissible campaign propaganda so as to warrant setting aside the election. For the reasons hereinafter set forth, we find that Re- spondent's conduct did violate Section 8(a) (1) of the Act, and that it did exceed the bounds of permissible campaign propaganda. In its campaign to defeat the Union, the Respondent emphasized that if the Union won the election and made economic demands which the Respondent would not meet, the Union's sole course would be to call a strike, in which event the Respondent could permanently re- place the strikers. While the Respondent did not state specifically that it would not bargain with the Union should the Union win the election, an analysis of Respondent's entire antiunion campaign re- veals an implicit warning that in dealing with the Union the Respond- ent would so conduct the negotiations that a strike would result. Thus, there was but one theme : the inevitability of a strike if the employees selected the Union as their bargaining representative, and the dire consequences of such a strike, namely, ensuing violence and the loss of jobs by the strikers.' We shall illustrate. On October 5 2 the Respondent, in a letter addressed to its employees and their families, appealed to the employees to vote "No" in the 2 ,Contrary to the interpretation by our dissenting colleagues , it is clear that the Respondent's campaign in this respect was not in response to union literature . That the opposite is the case is apparent from the portions of the Union 's statements quoted in the dissenting opinion at footnote 10, which quotations reveal on their face that the Union's comments were directed to counteracting the Respondent 's thesis that selection of the Union would necessarily result in a strike . The Union's September 22 leaflet was undoubtedly in response to a company communication of September 20. 3 Prior to September 25, the Respondent had mailed to its employees and their families three pieces of literature generally in the same vein as those described above. However, as the Decision and Direction of Election herein issued on September 25, and the election was held on October 18, and as the distribution of these letters was not specifically alleged to be violative of Section 8(a) (1) of the Act, we will consider only those letteitF and materials distributed after September 25. F. W. Woolworth Company, 109 NLRB 1446; of. The Ideal Electric and Manufacturing Company, 134 NLRB 1275. 717-672-64-vol. 143-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coming election and warned of the Union's propensity to exact ini- tiation fees, dues, and assessments. Attached to this letter was a large red and white poster asserting, "Union promises won't fill your grocery basket, but union strikes, picket lines, dues, fees, assessments will sure keep it EMPTY." The poster also warned, "Protect your security VOTE NO UNION." Again, on October 7, in another letter to its employees and their families, the Respondent stated that the Union can only promise employment benefits but that actually all benefits have come, and will continue to come, from the Company. The Respondent thereafter indicated that if the Company refused to fulfill the promises of the Union, the only thing the Union could do would be "to make YOU go out on strike-that is, YOU go without work, YOU go without pay, and YOU might even lose your job altogether." In such event, according to the Respondent, the employees would not get paid, would not get Tennessee unemployment compensation, and could lose their jobs. In addition to the foregoing letter, an accompanying bulletin cap- tioned "IT CAN HAPPEN TO YOU" further illustrated what could happen at the Respondent's plant should the Union win the forthcom- ing election. Thus, the bulletin related that Murfreesboro Pure Milk Company, a local concern, had operated for a number of years with no strikes, no picket line, and no violence, but "Then in August 1960 some of the employees of the dairy made the mistake of voting for a big- promising union. In less than 3 months after the election the union pulled a STRIKE !" Subsequently, "There were many threats- then came the damage to cars and property-then came the blast of a shotgun into the home of a worker!" Thereafter, the Respondent relates, the picketing continued for several months, but the milk com- pany continued to operate, hired new employees, and "EVERY STRIKER LOST HIS JOB BY BEING PERMANENTLY RE- PLACED ! No contract `vas ever signed, no union promise was ful- filled-those who let themselves be led by the union gained nothing and lost everything." On October 11, the Respondent sent still another communication to its employees and their families continuing to stress the theme that a strike was inevitable and the employees could lose their jobs should the Union win the election. Thus, the Respondent stated that if the Union won the election, the Company would not automatically have to sign a union contract, and that should the Union call a strike, "The law is that the company can hire new employees to replace economic strikers. This means that there may be no jobs for the strikers after the strike is over." The communication concluded with the following : "THE UNION DID NOT GIVE YOU YOUR JOB. THE UNION HAS NEVER PAID YOUR WAGES AND NEVER IDEAL BAKING COMPANY OF TENNESSEE, INC. 549 WILL." In addition, the Respondent also enclosed a large red and white poster with large letters proclaiming "Good News-Everybody is saying the employees don't want the Union ! Let's All Vote To Protect Our Future!" It then asked the employees to vote "NO." Finally, on October 14, as a climax to its mailing campaign directed at its employees and their families, the Respondent, by letter, warned, "UNION and STRIKES go together like fLre and smoke. When you vote in this Labor Board election, we feel that the main question you will be deciding is the question of whether we will have SECURE JOBS or PICKET LINES for your future." The letter continued, "... you may wake up too late and find the union has led you into a big strike and a lot of trouble and has talked you right out of your job." The letter concluded with this warning, "REMEMBER-this Labor Board election is your last chance to prevent trouble by this union. No matter what you have said or done in the past, you can still VOTE and VOTE NO UNION IN THIS ELECTION !" The Respondent attached to this letter a red on white poster depicting some strikers throwing down their picket signs and abandoning their strike. They are confronted with a "No Vacancies" sign on the plant wall and they exclaim, "ZING-it's too late !" Finally, the poster exclaims, "Stop this-VOTE NO !" In addition to mailing the above-described material to the homes of its employees, Respondent pursued a like antiunion campaign within the plant. Here, again, the Respondent placed heavy stress both on the dangers of a strike if the employees selected the Union as their bargaining representative and its right to replace all strikers per- manently. Thus, on October 13 and 15, Plant Manager Priester read identical speeches to the employees at work in the plant. In his speech, Priester replied, in part, to some of the Union's preelection campaign material, and again stressed the matter of employee job security and how much their job security would be jeopardized by a Union-fomented strike. In this regard, Priester stated : Let me remind you not to be satisfied with a lot of fast talk- promises that cannot be fulfilled. The only thing that the union can definitely promise and produce is a strike ... loss of work, loss of pay-loss of job. At another point, he warned : I say do as 57,000,000 other workers in the U.S.A. have done. Do not let these union bosses get their hands into your pockets. Do not let them get control of your job. Do not let them pull you out on strike as they have done to millions of workers year after year. Remember there are 3 NON UNION workers for every union worker in America. [Emphasis supplied.] 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continuing, Priester stated : Let me make this clear-A STRIKE WILL NOT affect OUR profits-because this bakery will continue to operate-everyday, everyday-everyday-The Same As M'Boro [Murfreesboro] Pure Milk did. The strikers were replaced-have not been re- hired and I understand that some of those people are still out of jobs nearly one year later. That wild talker [union organizer] was talking Big Pay and Job Security to those people. Along the same vein, he continued : Let me tell you something about the Anniston situation .. . This same union came in there and fast talked those employees into signing up. After a strike Mr. Lloyd signed a contract then soon afterward he locked the place up and every employee was out of a job. He concluded his speech with this warning : In closing let me remind you-this is your fight-the only way we will win is by the Company and you sticking together. These union bakeries that have Mr. Merle Smith's Union would like to see us hurt. They would like to see us closed by a strike. Just remember-you and I are the ones that will suffer most because of Union strikes and trouble. VOTE NO ! In addition to the foregoing remarks to the employees, about 3 weeks prior to the election, a large mirror was placed near the timeclock used by Respondent's employees. A legend was placed above the mirror. It read, "Think. You are looking at the picture of an employee." On October 4, Respondent added an additional slogan to the foregoing legend. It warned, "Whose job can be destroyed by union strikes. Vote No." This slogan remained posted until October 6.1 It is clear that by means of the foregoing letters and other printed materials sent to the employees and their families at their homes, and by the speeches and slogans at their place of work, Respondent created the impression of the inevitability of a strike if the employees selected the Union as their bargaining agent, and warned of the dire "There were five other slogans posted between September 25 and the date of the elec- tion These slogans were as follows: Slogan 2-"Who has never been paid benefits by the union and never will. Vote o. Slogan 3-"Whose job, pay and benefits result from team work with Ideal Bakery. Vote No." Slogan 4-"Who is too intelligent to be fooled by wild promises and slick union sales 'talk. Vote No." Slogan 5-"Who works in the plant that has made more progress in the past 18 months than it ever made in twice the time before . Vote No." Slogan 6-"Whose personal progress only can be assured by the progress of Ideal. Vote No." IDEAL BAKING COMPANY OF TENNESSEE, INC. 551 consequences of such strike, both as to job tenure and ensuing violence. But, if by chance this message still had not penetrated the conscious- ness of its employees, Respondent made one final effort. At a Company-sponsored dinner held for employees and their fam- ilies the night before the election,5 Plant Manager Priester introduced R. P. Cooper, principal owner of the plant. Cooper spoke for 3 to 5 minutes reviewing the progress the bakery had enjoyed during the previous 18 months. He alluded to the fact that the employees had received three wage increases during that same period without union representation despite the fact that the bakery was continuing to operate at a loss. While not explicitly promising, Cooper plainly implied that additional future wage increases would be given. He also referred to his bakery at Anniston, Alabama, as being the only one of his bakeries in which the employees were represented by a union, but stated that there the plant had been organized when he bought it. He then added that at the time he bought the Anniston bakery, the wages were substandard even though the employees had been represented by a union, and he claimed that the improvements there were attributable to good management rather than to the union. Cooper concluded his brief talk by reminding the employees that they were free to vote as they wished but he hoped they were "with us." After Cooper's speech, Priester notified those assembled that they were about to view a motion picture in which they would be interested because "some shots of it were about people in nearby Davidson County." Thereupon, the film entitled "A Question of Law and Order" was shown.6 Briefly, the film shows various scenes of mass picketing and attend- ing violence, including physical beating of various persons attempt- ing to enter a plant being picketed, stoning and overturning of cars, and other damage. At one point, the scene shows a person lying, apparently unconscious, in a street. The film closes with the narra- tor's plea for law enforcement in cases involving labor violence, and with additional scenes of violence, presumably in the course of labor disputes. Plant Manager Priester then dismissed the assemblage with the comment that they had seen the film, and that he hoped nothing like that would ever happen in Murfreesboro. The election was held the following day. As noted at the outset, and as illustrated above, Respondent's en- tire preelection campaign contained but one message to the employees, namely, the inevitability of a strike, possible violence, and resultant 5A separate dinner was held for the Negro employees on October 16. The General Counsel amended the complaint so as to strike the allegations pertaining to this October 16 gathering. It appears, however, that the two social gatherings were substantially identical 6 while we obviously join our dissenting colleagues in deprecating lawlessness, we nonetheless cannot countenance the misuse of information covering either lawful or un- lawful conduct. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job loss should the employees select the Union as their bargaining agent. Moreover, it does not appear to us, as found by the Trial Ex- aminer, that the Respondent was merely informing its employees about the legal consequences of economic strikes. Indeed, as illus- trated above, Plant Manager Priester seldom distinguished economic strikes from other types of strikes in his mail campaign to the em- ployees, and he completely ignored such distinction in the above- described slogan posted in the plant, and in his several speeches to the assembled employees when he said: The only thing that the union can definitely promise and pro- duce is a strike, loss of work, loss of pay, loss of job. Let me make this clear-A STRIKE WILL NOT AFFECT OUR profits-because this bakery will continue to operate- everyday, everyday-everyday-The same as M'BORO [Mur- freesboro] PURE MILK did. The strikers were replaced-have not been rehired and I understand that some of those people are still out of jobs nearly one year later. Indeed, a searching review of this record and careful scrutiny of the Respondent's entire preelection campaign does not reveal one in- timation to its employees and their families that the selection of a collective-bargaining representative need not result in a strike, vio- lence, trouble, or loss of jobs, but could result in a collective-bargaining agreement. This unremitting effort on the part of the Respondent to impress upon the employees the dangers inherent in their selection of the Union as their bargaining agent, particularly the danger of job loss, followed up by the baleful representation of the prospect of violence, physical injury, and property damage as the ordinary result of voting for the Union in the election, was not an attempt to influence the em- ployees by reason, but was an appeal to fear. Indeed, Respondent's entire preelection campaign was intimidatory in nature, and intended to convey the threat of job loss and physical violence should be the Union win the election. Accordingly, we conclude that Respondent's entire preelection, antiunion campaign, when considered as a whole,' was intended to interfere with, restrain, and coerce its employees in the exercise of their rights guaranteed by Section 7, and was, accord- ingly, violative of Section 8(a) (1) of the Act. The conduct which we have found violative of Section 8 (a) (1) also has interfered with the exercise of a free and untrammeled choice 7 Our dissenting colleagues complain at one point that we are discussing statements in isolation rather than considering them in context, and later that we are considering con- text rather than isolated statements . In any event , the whole can, in some circumstances, be at least different from if not greater than its parts . For example , this Respondent, in its bakery , utilizes basic ingredients which, by combining them in different ways, may produce a variety of baked goods , and even a slight deviation from the prescribed manner of mixing those Ingredients may result in an unacceptable product. So it is with words and speech. IDEAL BAKING COMPANY OF TENNESSEE, INC. 553 in the election involved here. See Dal-Tex Optical Company, Inc., 137 NLRB 1782. Accordingly, we find that the Respondent's con- duct deprived the employees of their right to express a free choice in the election. We shall, therefore, set aside the election of October 18, 1961. But assuming, arguendo, that Respondent's above-described conduct is not violative of Section 8(a) (1) of the Act, we would nevertheless set the representation election aside. Clearly, Respondent's entire preelection campaign generated an atmosphere of fear of physical violence, trouble, and economic loss which completely polluted the free atmosphere which is indispensable to a valid election. REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ideal Baking Company of Tennessee, Inc., Murfreesboro, Tennessee, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening employees with adverse consequences, including job loss, in the event they select the Union as their collective- bargaining agent, or, in any like or similar manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the Union herein or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Murfreesboro, Tennessee, copies of the at- tached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly • signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the election in Case No. 26-RC-1663, held October 18, 1961, be, and it hereby is, set aside, and that Case No. 26-RC-1663 be, and it hereby is, remanded to the Regional Direc- tor for the Twenty-sixth Region for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative.' MEMBERS RODGERS and LEEDOM, dissenting : Our colleagues are finding that the Respondent's preelection cam- paign, when taken as a whole, amounted to a threat of job insecurity in violation of Section 8 (a) (1). We would find, as did the Trial Examiner, that the Respondent's campaign statements and propa- ganda are protected by Section 8 (c) of the Act. An examination of the record in its entirety shows that the Re- spondent sought to accomplish three legitimate objectives in its state- ments and communications to employees: (1) to clarify and explain the respective legal rights and positions of the Respondent and its employees vis-a-vis the Union; (2) to answer the Union's campaign propaganda; 10 and (3) to indicate the possible disadvantages of union organization. 9 A new election shall be conducted among employees in the unit found appropriate in the Decision and Direction of Election in this case issued September 25, 1961, who are employed during the payroll period immediately preceding the date of issuance of the new notice of election In the event the Respondent fails or refuses to comply with the terms of the Order in Case No. 26-'CA-1167, the Regional Director is also authorized to conduct the new elec- tion directed herein upon the written request of the Union. Associated Grocers of Port Arthur, Inc, 134 NLRB 468 10 Our colleagues have failed to consider adequately the critical fact that much of the Respondent's preelection discussion 'of strikes was for the purpose of answering asser- tions put forth by the Union during its campaign . We shall illustrate. In late August or early September 1961, the Union mailed to the homes of the Re- spondent's employees copies of its publication , ABC News, dated August 1961. This edi- tion made reference to at least five situations wherein the Union was involved in strikes or near-strike situations with various employers. It thus appears that the Union Injected the matter of labor disputes and strikes into its organizational effort at an early date. On or about September 22, the Union also distributed to all employees by mail a cover- ing leaflet and booklet entitled, "LOOK OUT BELOW." The following excerpts relating to strike action appear in this booklet: Furthermore , he [the employer ] has a great fear that you might lose your in- dependence . . . become a slave to some labor "boss" who can order you out on strike at any moment, even against your will ! Perhaps you 'adn't realized it, as you and your fellow workers have been meeting and talking about the union , that the minute you became a union member you'll change into a strike-happy irresponsible and violent individual But the loveletters will edu- IDEAL BAKING COMPANY OF TENNESSEE, INC. 555 By means of a fragmentary analysis of the Respondent's preelection communications to its employees, our colleagues have found Respond- ent's statements to be tantamount to an unlawful threat of job loss resulting from possible strikes. In doing so, they arbitrarily select certain portions from Respondent's campaign material and fail to consider the entire context of the same material, and the preelection activities of both parties in their entirety. For example, our col- leagues characterize the Respondent's letter dated October 11 as "con- tinuing to stress the theme that a strike was inevitable and the em- ployees could lose their jobs should the Union win the election." However, an inspection of the entire text of the letter shows that the "strike-loss of jobs" subject was only a minor topic in the letter. For the letter informed the employees that: (1) they did not have to join the Union to continue their employment; (2) even if the employees had signed a union card, attended meetings, and paid union dues, they could still vote against the Union ; (3) in the event of a strike, the employees would not receive any wages and would also be ineligible for unemployment compensation; and (4) it was of the utmost im- portance for everyone to vote in the election even if they were not union partisans. The letter also explained the mechanics of the bal- loting. A balanced reading of this letter as well as the Respondent's other preelection communications convinces us that the Respondent was merely exercising its protected right to answer the Union's propa- ganda and to inform the employees that unionization might entail disadvantages as well as advantages." As for the motion picture shown to the employees, which our col- leagues also find to be an objectionable component of the Respond- ent's preelection campaign, we fail to share their view that its presen- tation in any way served to threaten the employees or otherwise polluted the atmosphere surrounding the election.12 cate you on that score. They'll point out this tendency to strikes and violence that you hadn't noticed in your fellow workers and friends before. The letters, of course , will forget to inform you that there are come [ sic] 125,000 union contracts governing labor-management relations and that 97% of them are signed after peaceful negotiation They'll forget to mention that more workers miss work because of colds than because of strikes, and that strikes have to be authorized by the workers themselves before they can be conducted. In early October, the Union distributed a propaganda piece titled , "Yes the boss is worried . . but NOT ABOUT YOU." Wherein the following excerpt appears. Right now the only reason they are fighting your attempts to organize is-not be- cause YOU might suffer because of a strike (altho that too would cut into their profits), but simply because a gain in benefits for you would cut into their profits . . . and that they will have to deal with you as an American citizen-worker and not as a slave with whom they can deal as Lord and Master to their own selfish advantage. Considering the tenor of this union propaganda , the Respondent's efforts to apprise the employees of its view of strikes and labor disputes appear to us to have been reasonable in the circumstances " See Arch Beverage Corporation, 140 NLRB 1385; Decorated Products, Inc., 140 NLRB 13'83 '2 See our dissents in Carl T Mason Co., Inc, 142 NLRB 480; Plochman and Harrison-Cherry Lane Foods . Inc, 140 NLRB 130 The film herein , "A Question of Law 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Our colleagues have failed to find that either the Respondent's letters, slogans, speeches, or motion picture, when considered sep- arately, is independently violative of Section 8(a) (1). Instead, they find that the total or combined effect of Respondent's various acts con- stitutes unlawful conduct. We cannot perceive the logic of our col- leagues' position. If each separate part of the Respondent's conduct is not unlawful, what renders the entire campaign unlawful? Put another way, we do not believe that herein the whole can be greater than the sum of its parts. It is clear that the Respondent had a right to oppose the union organization of its employees." In so doing, the Respondent could properly respond to the Union's propaganda and thus inform its em- ployees concerning the disadvantages of union representation. In our view, the Respondent exercised that right in a lawful manner well within the bounds of the "free speech" guaranty of the first amendment.14 For the foregoing reasons, we would find that the Respondent's statements and propaganda here in issue do not violate Section 8(a) (1) of the Act. Further, we would also find that the Respondent did not engage in impermissible conduct so as to warrant setting the election aside. and Order," consists of a series of newsreel clips which incontrovertibly depict actual instances of violence involved in labor disputes . Unlike the motion picture in the above- cited cases, it is not a scripted and acted production In addition , the theme of the movie is to deprecate this form of lawlessness, an objective which all decent citizens should applaud 13 See Thomas v. Collins, 323 U S. 516, 532. 14 See Member Rodgers' dissent Yn Oak Manufacturing Company. 141 NLRB 1323 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT threaten our employees with adverse consequences, including job loss, in the event they select the American Bakery and Confectionery Workers International Union, AFL-CIO, or any other union as their collective-bargaining agent. WE WILL NOT in any like or similar manner interfere with, re- strain, or coerce employees in the exercise of their right to self- organization, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining and other mutual aid or protection or to refrain from any and all such activities. IDEAL BAKING COMPANY OF TENNESSEE, INC. 557 All our employees are free to become or remain members of the above-named or any other labor organization, or to refrain from such membership. IDEAL BAKING COMPANY OF TENNESSEE, 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, 714 Falls Building , 22 North Front Street , Memphis, Tennes- see, 38103, Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT, RECOMMENDED ORDER, AND RECOMMENDATIONS WITH RESPECT TO OBJECTIONS STATEMENT OF THE CASE These proceedings arise out of the efforts of the Union (American Bakery and Confectionery Workers International Union, AFL-CIO) to organize the employees of Respondent's bakery at Murfreesboro, Tennessee. In the representation case, after a hearing on a petition by the Union, the Regional Director on September 25, 1961, directed an election which was held October 18, 1961, and which the Union lost by a vote of 29 to 28. Thereupon the Union filed objections alleging that cer- tain conduct of the Respondent had prevented the holding of a fair election. All but one of these objections (that relating to alleged interrogation of employees) was overruled on December 8, 1961, by the Regional Director, who recommended a hearing as to the alleged interrogation. The Union filed exceptions to the report of the Regional Director, and the Board on January 10, 1962, directed that the scope of the proposed hearing be expanded to include certain other objections to the election, namely those alleging that the Employer threatened employees that if the Union won the election a strike would result and the employees would lose their jobs, and that the Employer disseminated oral, written, and graphic propa- ganda prejudicial to a free election, including the posting of an intimidatory notice at the timeclock, and the showing of a film "prepared for the purpose of inflaming the passions and arousing the prejudices of the employees." Meanwhile, the Union filed an unfair labor practice charge on October 26, 1961, alleging violations of Section 8(a) (1) of the Act, and on December 8, 1961, a com- plaint issued alleging that the Respondent by interrogating its employees concern- ing union membership and activities and by granting certain recreational benefits had violated Section 8(a)(1) of the Act. On January 12, 1962, the Regional Di- rector issued an order consolidating the representation and unfair labor practice cases. On January 31, 1962, after the Board directed a hearing on the objections, the General Counsel issued an amended complaint omitting reference to the recrea- tional benefits but adding allegations that Respondent in violation of Section 8(a) (1) posted an intimidatory notice at its timeclock , showed its employees motion picture films of strike violence, stating that they could expect similar violence if they voted for the Union, and told the employees that if the Union won the elec- tion a strike could result and the employees could lose their jobs.' Respondent moved to dismiss the new allegations in the amended complaint on the ground that the conduct complained of was not violative of the Act. The motion was taken under advisement and is disposed of herein . Respondent also moved for a bill of particulars which was in part supplied by General Counsel, and 1 Technically the amended complaint omitted the allegation that the interrogation (para- graph 7 of the original complaint) violated the Act, but this was apparently a mere over- sight as all parties treated the case as if the allegations of that paragraph were referred to in the paragraph alleging violations 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was in other respects denied. Respondent also filed an answer to the com- plaint and an answer to the amended complaint, denying the alleged misconduct. At the hearing the complaint was further amended, over Respondent's objection, to allege further threats, and at the conclusion of the General Counsel's case it was again amended to omit certain allegations as to which no proof was adduced. The consolidated proceeding was heard before Trial Examiner Frederick U. Reel at Murfreesboro, Tennessee, on February 13 and 14, 1962, with all parties represented, and thereafter on April 2, 1962, all parties filed briefs which have been duly considered. Upon the entire record 2 and my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED The pleadings establish and I find that Respondent, a Florida corporation, op- erates a bakery at Murfreesboro, Tennessee, where it annually receives goods valued in excess of $50,000 directly from points outside Tennessee and ships products valued in excess of $50,000 directly to points outside that State. The pleadings establish and I find that Respondent is engaged in commerce within the meaning of the Act, and that the Union is a labor organization within the meaning of the Act. II. THE CONDUCT PRECEDING THE ELECTION A. Alleged individual interrogation and threats According to employee Carlos Scantland, on two occasions preceding the elec- tion Plant Superintendent I. D Keen interrogated him concerning the forthcoming balloting. On the first of these occasions , 2 weeks before the election, Keen asked him how he had decided and added that he had to decide one way or the other. On the second occasion, 4 or 5 days before the election , Keen repeated his query, and Scantland replied that he was satisfied with the way things were. Keen flatly denied that the conversations to which Scantland testified ever occurred Several com- pany supervisors, including Plant Manager Joe Priester, testified that Priester had specifically instructed the supervisors not to interrogate the employees as to their union views . Although the credibility issue as between Scantland and Keen is ex- tremely close, I credit the testimony of Keen, and find that the alleged interroga- tion did not occur. According to former employee William Cantrell, when his supervisor, Earl West, invited Cantrell to a dinner given by the Employer on the eve of the election, Cantrell demurred, whereupon West told him that employees who did not attend would thereby signify their support of the Union and would be first in line for layoff. West's version of the conversation was that Cantrell on receiving the invita- tion inquired whether a meal would be served, and on being answered in the affirma- tive, stated that he would attend. Based on my observation of the witnesses, I credit West's version of the event. According to employee Donald Washer, Distribution Supervisor John Estes came to Washer's house on a Saturday 2 weeks before the election and told Washer that the Company could not and would not pay union wages, that if the Union won the election a strike would probably result, and the employees would be replaced. Washer also testified that some days later Estes asked Washer to give him any written material Washer had received from the Union, that Washer had none at the time, and that Estes asked him to keep Estes' reaiiest "between us." Estes denied the remarks and the request for literature attributed to him by Washer, except that he admitted telling Washer that if the Union struck over wage demands, the men could be replaced. Based on my observation of the witnesses, I credit Estes. The record contains some evidence of statements made by management representa- tives to employees at their homes in late August or early September 1961, before the direction of election, informing the employees that they could be replaced if they went on strike. These statements are not embraced within the allegations of the complaint, and in view of their timing cannot be considered in determining whether to set the election aside. F. W. Woolworth Company, 109 NLRB 1446; cf. Ideal Electric and Manufacturing Company, 134 NLRB 1275, and inapplicable to cases then pending. 2 Respondent's moition, filed with its brief, to correct the record Is hereby granted and the record is corrected accordingly. The record is further corrected to change the word "substantial" at page 395, lines 15-16, to "Insubstantial" IDEAL BAKING COMPANY OF TENNESSEE, INC. 559 B. Alleged interference, restraint, or coercion of the employees as a group 1. The slogans at the timeclock Respondent has long had the practice of posting exhortatory slogans next to the timeclock. During the 3 weeks preceding the election, these slogans dealt with the Union's efforts to organize. In addition, beginning about 3 weeks before the elec- tion and continuing through the time of the hearing, Respondent placed a large mirror next to the timeclock and above it placed a sign reading "Think. You are looking at the picture of an employee." The slogans referred to above were placed, one at a time, beneath this legend. They were changed approximately every 3 days, and six of them dealt with the forthcoming election. Of these six, only one was alleged to violate the Act. This slogan, which was posted from October 4 to 6, read: "Whose job can be destroyed by union strikes. Vote No." Under the circumstances of this case, I find that the posting of this slogan for 3 days some 2 weeks before the election was not an unfair labor practice and did not create an atmosphere which prevented the holding of a fair election. Re- spondent for many weeks prior to the posting of this slogan, and for the 2 weeks subsequent thereto, placed its major campaign efforts in emphasizing to the em- ployees that if the Union won the election and made economic demands which the Respondent would not meet, the Union's sole recourse would be to call a strike in which event the strikers could be replaced. Union campaign literature, while disclaiming any desire on the Union's part to call a strike, had stated that on occasion strikes were necessary to achieve desired ends? Under these circumstances the slogan in question should have been properly understood by the employees, and its appearance for only 3 days, 2 weeks before the election, did not create an at- mosphere of confusion or intimidation at the time of the balloting. I further find that in all the circumstances the poster and slogan did not constitute interference, restraint, or coercion violative of Section 8(a) (1). 2. The speeches of October 13 and 15 The election was held on Wednesday, October 18. On the preceding Friday and twice on the preceding Sunday Plant Manager Priester read the identical speech to the employees at work in the plant. A copy of Priester's speech was introduced as an exhibit, and is reproduced as an appendix to this report. In my view the contents of this address were well within the area of "views, argument, or opinion," so that its delivery did not constitute an unfair labor practice. Although Priester did say, "There are more raises to come," this remark in context was an expression of general business optimism ("You and I are going to earn further increases") rather than a "promise of benefit." I further find that the speech consisted of permissible campaign propaganda, and furnishes no basis for setting aside the elec- tion.4 See F. W. Woolworth Company, 111 NLRB 766, 767-768. 3. The October 17 dinner, speeches, and film As stated above, the election was held October 18. A few days prior thereto the Company invited its employees and their wives to be the guests of the Company at a dinner 5 to be held the evening of October 17 at a nearby community center.6 Attendance was voluntary, but the Company asked the employees to advise it in advance whether they planned to attend, so that the Company could ascertain approximately what quantity of food and drink would be consumed. Virtually all 8 The Company's campaign literature is the subject of objections to the election but is not alleged to constitute an unfair labor practice The content of this literature was comparable to that of Priester's speech, discussed below, which is reproduced as an appendix to this report. Its main theme was that if the Union called an economic strike, the Company could permanently replace the strikers As campaign propaganda, it stayed within permissible limits. Mar-Jac Poultry Company, 123 NLRB 1571, 1574. a Priester testified and I find that he made no statements at the October 13 and 15 meetings other than those contained in his written text 5 There is no allegation that giving the employees a dinner the night before the election of itself violated Section 8 (a) (1). 6 Adtually there were two dinners, one on October 16 for colored employees and the other on October 17 for white employees. The allegations of the complaint as to viola- tions on October 16 were eliminated by amendment offered by the General Counsel, who produced no evidence as to events at that meeting. It later developed that the content of the two meetings was substantially identical. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees attended; a few did not. The hours of the bakery were adjusted that day to make it easier for employees to attend the party. With one minor excep- tion employees were not paid for time spent at the party, even though in a few cases it coincided with time they would otherwise have been at work. The sole exception appears to have been Cantrell, whose compensation was based on a guar- antee of 60 hours a week, and whose 60 hours in that week included part of the time he spent at the party.? The employees and their wives arrived at the party at from 7:30 to 8 p m., and left about 10:30 p in. During the interval they enjoyed alcoholic beverages (the serving of which is prohibited in the county), were served dinner, beard remarks by Plant Manager Priester and Company President Cooper, and saw a moving pic- ture film. a. Cooper's speech Priester opened the after-dinner ceremonies by introducing Cooper, a Tallahassee, Florida, resident, who operated bakeries in several States, and who was making his first visit to Murfreesboro since recovering from a heart attack he had sustained the preceding March. Cooper proceeded to review the progress of the bakery since he had bought it 18 months before, reminding the employees that he had kept the promise he had made immediately after he purchased the plant to give them three wage increases in the first 18 months. He stated that although the plant was still operating at a loss, he was satisfied with its progress and was optimistic about its future. He plainly implied, although he did not explicitly promise, that future wage increases would be given. Referring to his bakery at Anniston, Alabama (which had been mentioned in the Union's campaign literature), Cooper stated that the Anniston plant was the only one of his bakeries in which the employees were rep- resented by a union, and in that instance the plant had been organized when he bought it. He added that at the time he bought the Anniston plant, the wages there were substandard even though the employees had been represented by a union, and claimed that the improvements there were attributable to good management rather than to the Umon. Cooper concluded his brief, 3- to 5-minute remarks by reminding the employees that they were free to vote as they wished but he hoped they were "with us." General Counsel's complaint as amplified by particulars he furnished does not allege that Cooper's remarks violated the Act. Although the Union urges that his speech is grounds for setting aside the election, I find nothing in it that exceeded the bounds of legitimate propaganda. His observations as to the future of the plant, although plainly implying that the employees would share in the anticipated financial improvement, were far too general to be condemned as a "promise of benefit," or as an improper attempt to influence the balloting. Cooper's remarks were made within 24 hours of the election, but were delivered outside the plant at a meeting at which attendance was technically voluntary and for which the employees were not paid.8 b. Priester's remarks and the film After Cooper's remarks, Priester told the assembled employees that they were about to see a film in which he was sure they would be interested because parts of it involved people in the adjacent county of Davidson. The room was then dark- ened, and the employees saw and heard the film "A Question of Law and Order," which is in evidence as General Counsel's Exhibit No. 3. Briefly summarized, the film is devoted to the subject of violence in labor dis- putes. A narrator makes editorial comment while showing various scenes of strike violence and of testimony adduced before the Senate Select Committee on Improper Activities in the Labor or Management Field, 85th Congress, 1st session. In the course of the film, the narrator succinctly summarizes the history of labor relations in the United States with special reference to the enactment of the National Labor Relations Act and subsequent amendments thereto. After reading the statu- tory guarantee of the right to strike (Section 13), the narrator remarks that this language may have led people to overlook that not only strikers, but management, employees, and the public have rights in strike situations. The film shows various scenes of violence, which the narrator states attended organizational strikes, includ- ing physical beating of various persons by groups of others, overturning of cars 4 A supervisory employee performed Cantrell's duties while the latter was at the party 'As noted above, Cantrell was technically paid for part of the time he was there (his work shift started at 10 p.m in Nashville and he was several hours late reporting) but for pradtical purposes he was a salaried employee. IDEAL BAKING COMPANY OF TENNESSEE, INC. 561 and other damage, threats, and the like. The narrator then observes that violence is not limited to organizational strikes, and the scene shifts to the Senate committee where Committee Counsel (now Attorney General) Kennedy examines witnesses who describe intimidation of themselves and their families at the hands of organized labor. The film then turns to the subject of picketing. The narrator observes that labor has the right to publicize its position in a labor dispute but further observes that a union has no right to prevent people who want to work from doing so. The film then shows scenes of mass picketing and attendant violence, stoning and overturning of cars, beating of persons who attempt to enter a plant which is being picketed, and other similar episodes. At one point the camera focuses on a person lying, apparently unconscious, in a street. The narrator then observes that we have laws against violence, but that those laws are not vigorously enforced in labor controversies The film shows further scenes of the Senate committee, in the course of which Mr. Kennedy interrogated an official of Davidson County, Tennessee, as to the failure to maintain order in Nashville during the course of certain activities of the Teamsters Union.9 The film closes with the narrator's plea for law enforcement in cases involv- ing labor violence, and with more scenes of violence, presumably in the course of labor disputes. Priester dismissed the assemblage when the film ended, commenting only that they all had to work tomorrow, that they had seen the film, and that he hoped nothing like that (a reference to the violence depicted in the film) ever happened in Murfreesboro. c. Conclusions with respect to the film The record admits of little doubt that the Company's chief purpose in giving the party the night before the election was to show the film to the employees and their wives. The invitation to the party expressly mentioned the film, although it also stated that the Company wished to discuss "some final important thoughts concern- ing the union election" and that Mr. Cooper would make "some timely remarks." But Cooper's remarks, which were the only comments made regarding the election except for Priester's line at the end of the film, were extremely brief and added little to what the employees had already heard from other company spokesmen. Indeed Cooper himself testified that he only decided "at the last minute" to come to Murfreesboro on that occasion, and he spoke for only 3 minutes or thereabouts It may also be noted that the Company was apparently quite determined that the wives of the employees view the film, for there is no reason to believe that the Company could not more easily have shown the film to the employees at the plant. Also, it must be noted that the Company either had the film in advance and with- held it, or at the least arranged to obtain and show it, on the eve of the election, for the party invitations referred to it, and Sales Manager Lunsford knew of it the preceding Friday. In short, the Company deliberately showed the film when its impact would be freshest at the time of balloting and when the Union would have no opportunity to rebut it. In describing the film in the foregoing section of this report, I have attempted to summarize it accurately and dispassionately. No mere paper recital-at least none of which this author is capable-can fairly reproduce the impact of the film itself. The scenes of mob violence, of brutality, and of serious danger to life and limb as well as the wanton destruction of property depicted on the screen have an impact on the viewer far in excess of that which is conveyed by a mere recital of the content of the film. It is, of course, no basis for objection to propaganda that it is effective. Nor is there anything inherently unlawful in the employer's attempt to enlist the aid of the employees' wives in persuading the employees to reject the Union. But election-eve propaganda which is intimidatory rather than persuasive, and which is palpably misleading in its presentation of facts, oversteps the bounds which the Board permits in election campaigns. The film in this case, in my judgment, went far beyond permissible campaign propaganda. Its import, succinctly stated, is that serious violence regularly attends labor disputes and is a normal concomitant of union activity. Nothing in the film or the accompanying narrative suggests that violence is the exception rather than the rule in such matters. The contrary implication is plainly given and is plainly intended. The Company in presenting the film did nothing to dispel this misim- pression. On the contrary the Company fostered it by Priester's closing remark that 9 See the hearings before the committee, pages 7313-7334, December 10, 1957 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would not want to see such events in Murfreesboro . The plain implication was that voting in the Union would lead to violence such as was depicted in the film. Nothing in the film or in the Company 's presentation of it identified the Union in this case as a party to any of the violence depicted . By the same taken, however, nothing was said to disassociate this Union from the conduct depicted in the film. As the film was shown as part of a campaign against this particular Union, in the absence of any disclaimer by the Company the employees could be expected to infer that at least parts of the film had to do with the labor organization which was the subject of their and the Company 's immediate interest. Finally, the fact that the Union had no opportunity prior to the election to counter the misleading impact of the film is a further reason for finding that the film prevented the holding of a fair election . Basically, however, the vice in the film is that propa- ganda of that nature has an impact which cannot be countered by mere verbal or written reply. In my view the showing of such a film to employees during the course of an antiunion campaign exceeds the bounds of permissible propaganda ,1° and its impermissibility is only heightened in this case by the timing of the film , the attempt to intimidate the wives of the employees , and the failure to disclaim that the Union in this case was involved in the film sequences . In essence, it is my view that in- flammatory appeals to fear and not to reason have no place in these elections, and particularly not on the very eve thereof. Certainly the Employer 's election eve propaganda here "lowered the standards to the point where it may be said that the uninhibited desires of the employees cannot be determined from the election." N.L.R.B. v. Houston Chronicle Publishing Co , 49 LRRM 2782, 2786, 300 F. 2d 273 (C.A. 5). The case is manifestly distinguishable from Westinghouse Electric Corp., 118 NLRB 364, where the film shown concerned events at a plant of the Company involved in the case." Having reached the conclusion that by showing the film Respondent prevented the holding of a free election , I must logically conclude that-laying aside for one moment the impact of Section 8(c)-Respondent has interfered with the employees' exercise of their Section 7 right to select a bargaining representative . This would be a violation of Section 8(a)(1) unless Section 8 (c) precludes consideration of the showing of the film as evidence of an unfair labor practice. Section 8(c) permits the expression and dissemination of views, argument, or opinion, whether in written, printed, graphic , or visual form, provided the expression contains neither threat of reprisal nor force or promise of benefit . The plain meaning of this section is that the threat in question must emanate from the speaker or from participants on his side of the matter; it is not a threat of force, within the meaning of that section, for an employer to attribute to a union which he opposes a proclivity to violence . The violence depicted in the film was not directly attrib- utable to employers , but on the contrary was attributable to unions or to their supporters or to employees opposing unions. If, therefore , the film constituted "views, argument, or opinion" its showing fell within the ambit of conduct permitted by Section 8 (c). The narration acompanying the film unquestionably constituted "views, argument, or opinion," and the Company in effect adopted it as its own. It could be argued that the scenes of violence depicted in the film constituted an attempt to intimidate rather than to persuade , and should not be embraced within the area of "views, argu- ment or opinion." But the statute expressly permits the use of "graphic " and "visual" means of expressing or disseminating "views, argument, or opinion," and hence apparently contemplates resort to methods other than pure speech . Although as heretofore stated the film and narrative were grossly misleading insofar as they implied that violence was a normal byproduct of unionization , the protection of Section 8 (c) is not limited to accurate expressions. 10 Compare the settled principle that evidence, otherwise admissible, may be excluded if it would create "an undue prejudice in excess of its legitimate probative weight." Wigmore, Evidence, § 1904. 11 In my judgment the film in this case taints the atmosphere of the election far more than such a film as "And Women Must Weep" which the Regional Director in Pioch+nan and Harrison-Cherry Lane Foods, Inc (13-RC-7989), 140 NLRB 130, held to be per- missible propaganda, following remand from the Board That film is openly and ad- mittedly done from a script with professional actors ; it deals with just a single episode ; and it portrays "good" unionists as well as "bead " In this case the film purports to re- flect a universal situation and has the impact of a "documentary." Priester's closing re- mark that they "would certainly hate to see anything like that happen here" had far more impact on the employees and their wives following this film than if it had referred to the isolated episode in "And Women Must Weep." IDEAL BAKING COMPANY OF TENNESSEE, INC. 563 Accordingly, although I recommend setting aside the election because of the film, I find that the Respondent did not violate Section 8(a) (1) by showing the film in question. Cf. Metropolitan Life Insurance Company, 90 NLRB 935, 938-939, General Shoe Corporation, 77 NLRB 124, 127. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the basis of the entire record in this case , it is recommended that the complaint in Case No. 26-CA- 1167 be dismissed. It is further recommended that the election in Case No . 26-RC-1663 be set aside , and that a new election be conducted at such time as the Regional Director for the Twenty-sixth Region deems that circumstances permit the holding of a fair election to determine the employees' free choice of a bargaining representative. APPENDIX SPEECH DELIVERED BY PRIESTER TO ASSEMBLED EMPLOYEES ON OCTOBER 13 AND 15, 1961 1 I want to talk with you today about this very serious union matter-the literature and letters that have been mailed to you . As I told you before I will keep you in- formed of the true and correct facts concerning this matter. First let me emphasize this again . No matter if you signed a union card-no matter if you have attended a union meeting-no matter if you have listened to the fast talk and wild promises of the union salestalker-No matter what you may have done-you are not obligated to this union-YOUR VOTE in the No box at the bottom right hand of the ballot is the only thing that will keep this union out. YOU WILL VOTE IN ABSOLUTE FREEDOM! As I told every one of you before, I went to a NLR Board hearing in Nashville on August 21. The Union Salesmen immediately claimed that the Company was delaying the election .2 That's nothing but a lie. The only difference of opiniol that we had with the union was that we felt everyone in plant possible should have the right to vote-We believe in the right to vote, but the union wanted to keep some of you people from voting and it was the union-NOT THE COMPANY who refused to agree to let these people vote. Let me read a couple of things: ( 1) [lst sentence of footnote] : 3 The LABOR BOARD agreed 100% with what the Company said . The union was trying to keep these people from voting and it was the union that threw a monkey wrench in the works by trying to keep these people from voting. Let me tell you another thing about this election . We are providing a place right here in the plant- also at Nashv. also at Cookv .4 and also at Manchester for the voting to be held. We are not required to do this and we could refuse but we are going out of our way to help the labor board hold this election because we believe in your right to vote. We are also going to build a voting booth for you to vote in. Again we are not required to do this. While we do all we can to help the labor board the union is doing nothing to help . In fact the labor board wanted us to bring in the 2 people i This speech was introduced as Respondent's Exhibit No. 10, which is Priester's hand- written copy It is reproduced here precisely as It appears In the original exhibit insofar as Italics, capitalization, abbreviations, spelling, etc., are concerned, except that mate- rial which was crossed out or otherwise obliterated is not shown. In the margin Priester had written notations which are not reproduced In the following text but are noted and explained in footnotes at the appropriate point. Other explanatory footnotes have also been appended by the Trial Examiner ; the original text contains no footnotes 2A marginal note at this point indicates that Priester held up a union leaflet (Re- spondent's Exhibit No 7) captioned "The Old Stall." 3 Priester's marginal note here Is "Dec. of LABOR BOARD." He presumably read from the Regional Director's Decision and Direction of Election. 4 The references are to Nashville and Cookeville. 717-672-64-vol. 143-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eligible to vote from Nashv.-the 1 from Cookv . and the 1 from Manchester so all of you could vote together here-and we were willing to do that but the union _bjected so now the labor board man has to drive all over the map so our people in Manchester, Cookv. and Nashv. can vote. There have been other pieces of junk that the salestalker mailed to your homes. The 1st letters were signed by a Merle C. Smith The last 3 were not signed. A favorite trick of unions is to let one fast talking organizer come in and make wild promises to you and then when it comes time to produce-He disappears and another union representative comes in-one who professes to know nothing about the promises-and therefore does nothing about them. BEWARE OF THIS. The above happened to the Holsum Bakery employees in Montg. Ala .5 Holsum em- ployees voted a union in. The big promising union organizer was transferred- a new one was sent in. The Holsum Co. offered .050 per hr. increase. The union boss forced the employees to strike. These employees were on strike for 5 weeks- from early Dec. until mid Jan.-this of course was right at Christmas time. The employees went back to work for 50 per hr. increase-exactly what the Co. had offered 5 weeks earlier. Who can afford to loose 5 pay checks-at Christmas time or any time for that matter. I know that I cannot and I don't believe you can either. Don't be satisfied with a lot of sweet talk says the union salestalker.6 Let me remind you not to be satisfied with a lot of fast talk-Promises that cannot be fulfilled. The only thing that the union can definitely promise and produce is a strike [pause] loss of work, loss of pay-loss of job. The union does not hire and they do not fire. This union fast talker has told some of you that if you do not vote the union in now you will be fired. That is a silly statement and sounds like it came from a silly fool. NO ONE WILL LOOSE [sic] THEIR JOB. The only person worried about his job is the union salestalker. He has lost a number of elec- tions lately therefore his job is in jeopardy That is why he is making wild promises and foolish statements. DO NOT LISTEN TO THIS NONSENSE. Let me repeat-The union did not hire any of you and the union cannot fire you and can- not get you fired. This bird keeps talking about job security-job security. Please listen to this (1) Read about Peerless.? (2) He said something about the Anniston Bread Dept.8 Let me read it "Did [reads] Anniston Bd. Dept. Did this same union fasttalker protest the move in Anniston? Did he do anything for those workers? NOl! NO. He did not. The truth is a Co. has to compete with a competitive market and the only security that any of us have is to beat the competition. Right here in this area Sunbeam has made tremendous gains and they are NON-UNION. The union members of other bakeries nor the organizers did not stop their progress. This should prove to you that the unions cannot offer security, so why pay your good hard earned money for something you are not going to get from them. JOB SECURITY-Again I say that you are going to have those things by work- ing with a good Company. This smooth talking organizer isn't going to give you a penny. He is here to make money off of you. Further down the article he makes the statement that I was fired or forced to resign from Col. Baking Co. because I mistreated the salesmen. I feel sure that very few of you would believe a ridiculouse lie like that but just in case I had Mr. Serdes (President of Colonial Baking Co.) write me a letter stating why I left. (Read letter.) 9 That letter confirms the fact that after 17 years I resigned of my own free will because Mr. Ron Cooper had made me a better offer and I had a better opportunity for advancement. In fact Mr Cooper and I had been talking for 4 months about my coming to work for Ideal Bakery before I finally decided to leave Colonial. At bottom of leaflet he says do as 15,000,000 other workers have done. I say do as 57,000,000 other workers in the U.S.A. have done. Do not let these union bosses get their hands into your pockets . Do not let them get control of 6 Presumably Montgomery, Alabama. 6 Marginal note reads "Bit of Candy " At this point Priester held up the union leaflet so captioned (Respondent's Exhibit No. 8). 4 This reference is unexplained 8 The marginal note indicates that Priester held up a union leaflet captioned "Please, I'm worried" (Respondent's Exhibit No. 10B) and read the following excerpt: "Did they stay awake nights worrying when they closed the bread department at Anniston " "The letter Priester read is not in evidence A IDEAL BAKING COMPANY OF TENNESSEE, INC. 565 your job. Do not let them pull you out on strike as they have done to millions of workers year after year. Remember there are 3 NON UNION workers for every union worker in America. Theme of this leaflet 10 is-they have done nothing for you in 18 months. I think you should give some serious thought to that mis-statement. The first thing this Co. did was save the jobs of every one of you who has a job here now. The 2nd thing we have done is buy new equipment and pour thousands and thousands of dollars into this plant so that your job and mine would be secure by making us competitive with the other bakeries in the area. Also I would like to mention the many, many favorable comments on the improvement of our product that I have heard in recent months. I want to thank every one of you and congratulate every one of you because you are the ones that make the very fine loaf of Ideal Bread-therefore make these statements that people make to us correct. I feel sure that each of you have heard many fine compliments on the product. The Co. has not made one penny here. We still show a loss of thousands of dollars-yet despite that Mr. Cooper has insisted that we move ahead by giving you pay for more of your insurance benefits and giving you 3 wage increases in 18 months. Every employee that left the Co. when the cake shop was closed received from 1 to 5 weeks severance pay plus vacation pay for this year (which was at that time not yet earned). The union does not look after union people like this. We have rehired every cake shop employee that kept coming back looking for work. Further down-Right now the only reason [reads] profits)." This sounds like to me the organizer would welcome a strike. Let me make this clear [pause] A STRIKE WILL NOT affect OUR profits-because this bakery will continue to operate-everyday, everyday-everyday-The Same As M'Boro 12 Pure Milk did. The strikers were replaced-have not been rehired and I under- stand that some of those people are still out of jobs nearly one year later. That wild talker was talking Big Pay and Job Security to those people. Let me tell you something about the Anniston situation. Previous to 1950 Mr. Lloyd was operating a bakery in Anniston, Ala. and doing pretty good for himself and his employees. This same union came in there and fast talked those employees into signing up. After a strike Mr. Lloyd signed a contract then soon afterward he locked the place up and every employee was out of a job. Big Money-Big Talk-You Remember the old saying "Misery loves company" I be- lieve these Anniston people are being paid by the union to come up here and try to get you hooked. They are not coming up here because they have an interest in your welfare and well being. The union goon on top of paying them has probably promised them that since they have had a union longer he will try to force the company to put more of the production back in Anniston-thereby putting some of you out of work. Money dues, assessments, fines, etc.-that's what those union people are after. Here is something that is encouraging to us-Every day more and more employees (more of you all) are coming to us with literature (show some-) 13 and we have plenty more-But best of all we have had numerous ones to come in and say that they signed a card but now see their mistake (because they have now heard the true and correct side) and that they will certainly vote NO Union next Wed. One more thing that is important enough for me to answer. They say that we gave you some raises because we were forced to by law. That is not true. You know as well as I do the general increase that was given in May of 1960 was not required by law and it was not required by any union contract. The raise we gave in Nov. of 1960 was not required by law and no union made us do it either. The raise which we just gave you was only required for those making less than $1.15 per hour and we were required to raise only to $1.15. In other words we could have raised a few people to 1.15 and gave nothing to anyone else. But we did not do that because we do not have to be forced by law or by anybody else to 10A marginal note indicates that here Priester held up a union leaflet headed "They're Sorry Now" (Respondent's Exhibit No. 10A). 11 A marginal note indicates that Priester held up the "Please I'm Worried" leaflet (foot- note 8, supra) which read in part: "Right now the only reason they are fighting your attempts to organize is-not because you might suffer because of a strike (although that too would cut into their profits) but simply because a gain in benefits for you would cut into their profits ' The use of the "close parenthesis" sign in Priester's draft suggests he read only to the first "profits." 12 Murfreesboro. 13 The record does not indicate what Priester showed. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase wages or benefits the 3 raises that you have gotten plus the increase in insurance benefits is part of the Company's long range plan. There are more raises to come, but you know and I know that money cannot be picked out of the air and union organizers can not give it to you either . We are going to make Ideal Bakery one of the leaders in this area . We are going to make it a profitable busi- ness. And working together-you and I are going to earn further increases in pay and benefits and build real job security. In closing let me remind you-this is your fight-the only way we will win is by the Company and you sticking together . These union bakeries that have Mr. Merle Smiths Union would like to see us hurt. They would like to see us closed by a strike. Just remember-you and I are the ones that will suffer most because of Union strikes and trouble. VOTE NO! I thank you. Taylor Baking Company and Local 42, American Bakery and Confectionery Workers International Union, AFL-CIO, Peti- tioner. Case No. 10-RC-5503. June 28, 1963 DECISION ON REVIEW AND DIRECTION OF ELECTION On March 25, 1963, the Regional Director for the Tenth Region, issued his Decision and Order dismissing the petition in this pro- ceeding on the ground that the record failed to establish that the Employer's operations meet any of the Board's jurisdictional stand- ards. Thereafter, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review, and a statement in support thereof, in which it contended, inter alia, that the Employer's operations do meet the Board's indirect outflow standard, and requesting that the hearing be reopened to receive additional evidence on jurisdiction. On April 10, 1963, the Board, by telegraphic Order, remanded the proceeding to the Regional Director for purposes of reopening the hearing for further investigation of the Employer's operations. A further hearing was held on May 1, 1963, before Scott P. Watson, hearing officer. On May 16, 1963, the Regional Director issued an order transferring the case to the Board. The Board 1 has considered the entire record in this case and makes the following findings : 1. The Employer is engaged at Atlanta, Georgia, in the production and sale of bakery rolls. During 1962 is purchased from outside the State of Georgia materials valued at approximately $20,000. Its gross sales, all of which were made within the State, amounted to approxi- mately $105,000. Of this amount, products valued in excess of $50,000 were disposed of, in the manner set forth below, through retail grocery stores, each of which has annual gross sales exceeding $500,000. i 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 Brown]. 143 NLRB No. 53.