Earle Industries, Inc.

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places where notices to the employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourth Region, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith .4 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 economic loss in the event they select International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, as their bargaining representative, in violation of Section 8(a) (1) of the Act. WE WILL NOT interfere with the formation of, or contribute assistance to, Jomax Employees Association, or any other labor organization of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. WE WILL NOT recognize Jomax Employees Association, or any successor thereof, as the exclusive representative of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have been certified by the Board as the exclusive representative of such employees. All our employees are free to become, remain, or refrain from becoming or remaining members of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. JOMAx APPAREL COMPANY, Employer. JOMAx GARMENT CO., 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, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone No. 735-2612, if they have any question concerning this notice or com- pliance with its provisions. Earle Industries, Inc. and International Ladies' Garment Work- ers' Union, AFL-CIO. Case No. 26-CA-1550. 1llarch, 31, 1964 DECISION AND ORDER On January 21, 1964, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respond- 146 NLRB No. 71. EARLE INDUSTRIES, INC. 537 ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respond- ent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' The Board adopts as its Order the Recommended Order of the Trial Examiner. i The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, its officers, agents, successors, and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on June 3, 1963, by International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, a complaint was issued on August 9, 1963, alleging that Respondent Earle Industries, Inc., had interfered with, re- strained, and coerced its employees in the exercise of their organizational rights, in violation of Section 8(a)(1) of the National Labor Relations Act. Respondent filed an answer, denying the supervisory status of four of the individuals charged with coercive conduct, and denying that it had engaged in any of the unfair labor practices alleged. A hearing was held before Trial Examiner Fannie M. Boyls on October 8,and 9, 1963, at Memphis, Tennessee. At the conclusion of the first day of the hearing, after all parties had rested and the General Counsel in his oral argu- ment had contended that the failure of Respondent to call as witnesses the four individuals whose supervisory status was in dispute should be construed as an indi- cation that those persons, if called, would give testimony unfavorable to Respond- ent's contentions, Respondent moved to reopen the record in order to adduce the testimony of these four persons. This motion was granted and their testimony was received on the following day. At the conclusion of the reopened hearing, the General Counsel gave an extension of his oral argument and Respondent made a response. Thereafter, Respondent filed a brief, which I have carefully considered. Upon the entire record in this proceeding, and from my observation of the wit- nesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Arkansas corporation maintaining its plant and principal place of business at Earle, Arkansas, where it is engaged in the manufacture of plastic bags and notion items. During the 12-month period preceding the issuance of the complaint, Respondent, in the course and conduct of its business, purchased and received directly from points outside Arkansas materials and supplies valued in. excess of $50,000, and during the same period manufactured, sold, and shipped directly to points outside Arkansas finished products from its Earle, Arkansas, plant, valued in excess of $50,000. Respondent concedes, and I find, that it is engaged in, 538 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD commerce within the meaning of Section 2(6) and (7) of the Act. I also find that it will effectuate the policies of the Act for the Board to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes , and I find, that the International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and issues In the latter part of May 1963, the Union commenced organizing Respondent's employees and notified Respondent of the names of employees on its organizational committee. The complaint alleges that on various dates between May 24 and June 28, 1963, when a representation election was scheduled, Respondent engaged in conduct designed to coerce its employees in their organizational rights and defeat the Union at the polls. Some of this alleged conduct-acquiescence in and en- couragement of the attempted ejection by employees of a union advocate from the plant and the taking of pictures and measurements of plant equipment for the pur- pose of creating the impression that Respondent was about to close its plant-is charged to top management representatives, President Charles Whitman and Factory Superintendent Otto Pascal. Most of the alleged coercive acts, however-unlawful interrogation, the forcing of employees to wear "Vote No" signs, threats of plant closure, loss of benefits, -and other reprisals-are charged to persons whose super- visory status is in dispute, namely, Richard Gibson, Kenneth Carlton, Glenda McCain, and Robert Bledsoe. A principal issue involved is whether the latter per- sons are supervisors within the meaning of the Act, so that the misconduct charged to them, if proven, would render Respondent responsible. A further issue as to much of the alleged coercive conduct is whether it in fact occurred. Since a large part of the coercive conduct charged to the alleged supervisors oc- curred prior to or in connection with that charged to top management representatives, there is first set forth below the evidence relating to their supervisory status. B. The personnel whose supervisory status is contested About November 1961, after the city of Earle, Arkansas, had voted a bond issue to construct a building in which Respondent could operate its business of manufac- turing plastic garment bags and other closet accessories and notions, Respondent obtained a 20-year lease on the property and started a pilot operation at another loca- tion in Earle to train personnel for the' business. Charles Whitman, Respondent's president and principal stockholder, who also operated a business in New York, sent down Otto Pascal to train personnel in the temporary quarters and to act as superin- tendent of the new plant. In the early part of 1962, when production operations started, other management representatives were also brought down from New York. President Whitman did most of the purchasing for Respondent and commuted between his businesses in Earle and New York. In his absence the business was run by his son-in-law, Don Feltsenthal, who was the "trouble shooter" over the entire plant, by Albert Chassen, assistant to the president, who assisted Whitman in purchasing and had general super- vision over what was known as the "front end" of the plant, and by Plant Superin- tendent Pascal who had general supervision over what was known as the "back end" of the plant.' It is Respondent's contention that these three management representa- tives are the only persons properly regarded as supervisors over its approximately 150 employees. In the "back end," under Pascal, are the sewing department, the quilting depart- ment, the cutting department, the zipper department, the electronics room, and part of the shipping department. The alleged supervisors under Pascal's general super- vision who are named in the complaint consist of Glenda McCain over the sewing department, Robert Bledsoe over the quilting department, and Kenneth Carlton over the cutting department. In the "front end," under Chassen, are the packaging and examining department, the wire frame department, and the shipping department. Richard Gibson over the wire frame department is the only alleged supervisor under Chassen who is named in the complaint. I Another person, Anthony Bannanno, was in charge of automatic sewing and of build- ing maintenance, and in Pascal's absence, lays out work for the sewing department. EARLE INDUSTRIES, INC. 539 Richard Gibson has about 15 employees under him in the wire frame depart- ment. Chassen lays out the work for Gibson each day, telling Gibson how many frames are to be cut and how many bundles of wire are to be used. Gibson then distributes the work to the employees under him at the various machines and, if necessary, instructs them how to do their work. If a frame breaks, he instructs the welder as to the proper place for welding it. He also corrects the, work of the employees and changes them from one machine to another when it is nec- essary to get out the required production. Upon one occasion he even directed one of the employees under him to help out in the shipping room and on another occasion assigned the same employee the job of digging a ditch. Chassen,' upon hiring employee Turner, introduced him to Gibson and told Turner that Gibson would be in charge. Gibson referred to himself as a foreman or a supervisor and the employees considered him as their supervisor? He held himself out to them, moreover, as having authority to discipline them and responsibly direct their work. Thus, Gibson remarked to one of the employees under him that if another employee, Daniels, did not improve his production, Gibson "would have to let him go." On an earlier occasion when employee Daniels had mashed his finger while working, Gibson took him to a doctor, then, when learning that Daniels was to be laid off because of his injury, interceded in his behalf and caused Daniels to be assigned to a machine at which he could work with one hand. On the other hand, Gibson recommended three employees for raises which they did not receive. Gibson makes about 20 cents an hour more than most of the employees under him but only 10 cents an hour more than the highest paid. In addition to the duties described above, Gibson is the sole person to operate a special ferrule machine and turns out all the ferrules Respondent needs. This work occupies over 50 percent of Gibson's time, sometimes as high as 70 percent. Gibson also delivers buggies of cardboard and materials to employees on the conveyers and the punch press. He, as well as all the other personnel whose supervisory status is in dispute. punches a timeclock.3 Glenda McCain succeeded to the position of forelady over the sewing depart- ment on May 17, 1963, when Pauline Prater, the regular forelady, became ill. She has between 30 and 50 machine operators under her. Plant Superintendent Pascal lays out the work for her department each day and has general supervision over the department. McCain, with the assistance of bundle girls, distributes the work to the operators. She assists in instructing the new employees how to operate their machines and is responsible for seeing that the work moves and gets done. She helps the operators with their sewing problems, checks the quality of their work, corrects their mistakes, reprimands them, and pushes production in order to get out the work expected of her department. She distributes rejects to the employees responsible for them and decides whether the job is repairable, some- times consulting with Pascal. If any employee produces too many rejects, she reports this fact to Pascal. In accordance with Pascal's request, McCain reports to him any operators whose work she considers unsatisfactory and Pascal, in con- nection with deciding whether to discharge an employee, consults with her about the employee's attitude and willingness to learn. If an employee desires time off, McCain transmits the request to Pascal and Pascal, in deciding whether to grant the request, asks McCain whether she thinks it is necessary for the employee to be off. When machines are not working properly, McCain fixes them if the adjust- ments are minor but calls the mechanic for major problems. She moves the em- ployees from one machine to another while repairs on machines are being made, or at an employee's request. She collects the employees' production tickets at the end of each day and records their production in a book which she keeps for that purpose. Although she may make a sample perhaps two or three times a month, she does no sewing for production. McCain is paid on an hourly basis and her 2 Gibson testified that at the time he gave an affidavit to a Board agent investigating the charge in this case, he believed he had authority to discipline employees and send them to the office, but that Chassen, upon being informed of the statement, told Gibson that be did not have such authority. I credit this part of.Gibson's testimony but I do not credit his further testimony that Chassen had also told him the same thing before Gibson gave the affidavit. 3 The above findings are based upon the credited testimony of J. L Reeves, David Turner, Gibson. and Chassen. Gibson and Chassen, in their testimony, sought' obviously to play down the importance of Gibson's role but did not deny the specific testimony of Reeves and Turner relating to Gibson's duties and responsibilities. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD base rate is higher than that of the operators under her but the operators are paid on a production basis and a few of them make more than she does? Kenneth Carlton, who calls himself "foreman" of the cutting department, works under the general supervision of Plant Superintendent Pascal. He has about seven employees under him. On instructions from Pascal as to the number of bags needed, Carlton lays out the work of the cutting department. From a book setting forth the specifications, he divides the work among the operators of the various cutting machines, telling each the measurements and how to cut the orders. He sees that the cutters pick up the right materials and moves these employees from one machine to another in order to get out the different types of orders. It is his responsibility to synchronize the work to see that all the pieces come out together and that the orders are filled promptly. He spot checks the work of the cutters and reprimands them orally when he feels it is necessary. Although he may not directly discharge an employee, he has effectively recommended the discharge of three employees under him. He has also laid off employees on three occasions after consulting with Pascal and obtaining the latter's concurrence. On those occasions Pascal accepted Carlton's recommendations and made no independent investigation regarding .the matter. Carlton has also recommended raises for employees in his department and they subsequently received the raises under circumstances which caused Carlton as well as employees under him to believe that the increases were a result of his recommendations .5 About August 5, 1963, when Carlton was interviewed by a Board agent, he was spending about 90 percent of his time supervising employees under him, but for several weeks prior to the hearing, due to the absence of several of his cutters, he was devoting about 8 hours a day to operating their machines. He is paid about 62 cents an hour more than the em- ployees under him.6 Robert Bledsoe has about six men under him in the quilting department. Under the general supervision of Pascal, who determines how much quilting is needed, Bledsoe assigns work to the employees under him, instructs them as to how to run their machines, what yardage to run, and what color to use. He takes meter readings of the amount of work each employee does and records this on a daily chart. He also keeps an inventory of the materials used in his department. He makes needed repairs on the quilting machines when able and calls in the mechanic when he is unable to fix them. He is responsible for the quality as well as the quantity of production in his department and, in this connection, watches for mis- takes, corrects them, and shows the operators how to avoid them. In accordance with instructions from Pascal, he reports to Pascal when an employee's produc- tion drops substantially for reasons other than a faulty machine. He has recom- mended the layoff of two employees who were unable to operate efficiently and Pascal laid them off. He has, moreover, told employees that he could get them fired. These statements are consistent with Pascal's conduct in introducing Bledsoe to new employees as their boss, the man they would be working for, and Pascal's statement to employees on one occasion that Bledsoe had authority to do what he wanted to in his department. Bledsoe does not normally operate a machine on a production basis but may spend 2 or 3 hours a day operating a machine to get it running correctly and occasionally operates a machine when someone is absent or when his department is behind in its work schedule. Bledsoe is paid 30 or 40 cents an hour more than the operators under him.7 Respondent seeks to minimize the amount of responsibility it has delegated to the four persons whose duties and authority have been described above. It contends that these four are merely leadmen with no authority to hire, fire, transfer, assign, or discipline employees under them, effectively to recommend such action, or re- 4The above findings are based upon the credited testimony of McCain, Pascal, Jo Anne Tanksley, Roberta Shaw, Gloria Watson, and Stella Littlejohn. To the extent that the testimony of any of these five appears to be inconsistent with the above findings, it is not credited. 'About the same time Respondent granted increases throughout the plant but Pascal informed Carlton that the cutting department employees were receiving raises and Carlton transmitted this information to'the employees under him before it was generally known that the other employees also were to receive increases. It'is not clear from the record whether the general increases were sparked by or only coincidental with Carlton's efforts ,to get increases for his department. 9 The above findings are based upon the credited testimony of Carlton and J. C. Little- john and upon that part of Pascal's testimony which is consistent with their testimony. 7 The above findings are based upon the credited testimony of Jappie Pipes, Robert McIntyre, Bledsoe, and Pascal. To the extent that the testimony of any of these four may appear inconsistent with the above findings, I do not credit it EARLE INDUSTRIES, INC. 541 sponsibly to direct the employees, and that all of the authority exercised by these four is of a merely routine or clerical nature, requiring the use of no independent judgment. I do not agree. It is not important, of course, whether these persons are called leadmen, foremen, or supervisors, or whether they have any title at all. "The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title." N.L.R.B. v Southern Bleachery & Print Works, Inc., 257 F. 2d 235, 239 (C.A. 4), cert. denied 359 U.S. 911. Although some of these persons appear to have more responsible positions and to exercise more authority than others, each, at the very least, responsibly directs the work of the employees under him, and the exercise of this responsibility is not of a merely routine or clerical nature but requires the use of independent judg- ment. Thus, Gibson, in carrying out his responsibility to see that the required quantity and quality of production was achieved, moved the employees from machine to machine, corrected their work, and threatened to terminate an employee if he did not improve his production. And McCain, in fulfilling her responsibility to push production and see that the quality was maintained, checked on the work of the employees under her, corrected their mistakes, reprimanded them, determined whether work was repairable, reported to Pascal on those employees who had too many rejects, and consulted with him about the attitude and willingness of employees under her to learn. Carlton and Bledsoe have also responsibly directed the work of employees under them in order to keep production moving and insure an ac- ceptable quality of work. They have, in addition, effectively recommended the discharge or layoff of employees who failed to measure up to acceptable standards. In a plant such as Respondent's, employing as many as 150 employees, most of whom are new and unskilled and require a substantial amount of training and supervision, it could hardly be expected that Plant Superintendent Pascal and As- sistant to the President Chassen, even with the assistance of Don Feltsenthal, could personally supervise all the employees under their respective jurisdiction in a responsible fashion. It is clear from the record that they did not do so and that they relied heavily upon the four persons here in issue to assist in the supervision of Respondent's employees. I find that Gibson, McCain, Carlton, and Bledsoe were supervisors within the meaning of Section 2(11) of the Act .8 C. The alleged acts of interference, restraint, and coercion - 1. Unlawful conduct charged to Richard Gibson J. L. Reeves, who pastored a local church and also worked for Respondent be- tween January 20 and September 18, 1963, was openly a strong union advocate. According to his credited testimony, about May 28, shortly after the Union's organizational campaign had started, Supervisor Gibson said to him in the washroom as he and other employees were preparing to leave for the day, "Preacher, your time is short here. You are just a has been . Do you know the boll weevil song . . . you are going to be singing that, just looking for a home." 9 Thereafter, about June 5 or 6, Gibson warned Reeves and others during a work break that those who signed union cards would be sorry. About the same date, Gibson came to Reeves' machine and announced, "This is it." Reeves asked what he meant and Gibson replied, "They are closing it down." Reeves asked when and Gibson said, "Friday." On or about June 12, Respondent's officials, assisted by some of the supervisors, were seen by employees taking measurements and photographs of the machinery and floorspace, and Reeves was directed by Chasen to crate a couple of machines. A broken-down stapling machine was also crated and moved to the shipping de- partment. At that time Gibson again told Reeves, "This is it. They are going to close it up." When by June 17 the plant had not been closed, Reeves remarked to Gibson, "I notice they didn't close the plant Friday," Gibson responded, "Yes, but . . . if the Union comes in, it will close this Friday." Reeves further credibly testified that on June 27, the day before the representa- tion election, Gibson, wearing a "Vote No" sign, came first to Reeves, then to Reeves' wife, who also worked for Respondent, and asked each to wear a "Vote No" sign. 8Morowebb Cotton Mills Company, 75 NLRB 987; Clodomiro Isolino doing business tender the trade name and style of Ravens Sportswear, 142 NLRB 1299; Henry I. Siegel Co., Inc., 143 NLRB 386 9 The boll weevil song, "about the boll weevil, gotta have a home, gotta have a home, gotta find a home," was a popular song in Arkansas a year or two ago. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other employees testified to similar statements or conduct by Gibson. Thus, J. C. Littlejohn testified that while Reeves and Gibson were discussing the Union in the washroom, he heard Gibson say that the plant would close on the following Friday and that "The boss said it would close." According to employee David Turner, who worked under Gibson, the latter said to him about June 1, when samples were being taken down from the rack in the sewing department, "See, Dave, they are moving out now." Later, about June 17, when discussing the Union with Gibson, Turner asked him whether the plant would definitely close if the Union came in and Gibson replied that it would close either that week or the next week. Another employee, Gloria Watson, testified that on the day be- foie the election she saw Gibson attempting to pin "Vote No" signs on employees. Gibson denied that he ever said that the plant would close if the Union came in and asserted that the only statement he ever made relative to the plant closing was to the effect that the plant would or might close if Respondent lost enough business. He denied categorically that he ever said the plant would close at any specific time, that he ever mentioned the boll weevil song to Reeves, or that he ever asked Reeves or his wife to wear a "Vote No" sign. Gibson was not an entirely frank witness and I do not credit his denials. I find convicing and credible the mutually corroborative testimony of Reeves, Littlejohn, Turner, and Watson. I find that Respondent, through its supervisor, Gibson, by threatening employees with plant closure or loss of jobs if the Union became successful in organizing the plant and by requesting them to wear "Vote No" signs and attempting to pin those signs on employees just prior to the election, interfered with, restrained, and coerced them in their organizational rights, in violation of Section 8(a)( I) of the Act. In the context of the other coercive conduct by Gibson and other manage- ment representatives during this period, the singling out of individual employees and requesting them, or attempting to cause them, to wear "Vote No" signs con- stituted an attempt to coerce them into making an open choice for or against the Union. This conduct interfered with the employees' right to make a free choice as to union representation without fear of employer reprisals." 2. The unlawful conduct charged to Glenda McCain Roberta Shaw, a sewing machine operator under Forelady McCain, testified that about June 6, McCain stopped by the table at which Shaw and two other operators worked and told Shaw and one of the other operators that she did not know what they had heard about the Union coming in but 'advised them not to vote for the Union if they wanted to keep their jobs. She explained that if the Union came in, the Company was going "to see about moving back to New York." She added, "Of course, it is a free country. Everybody has their right to vote as they please." This version was corroborated in part by the testimony of Jo Anne Tanksley who was working on the opposite side of the table from Shaw. Tanksley heard McCain say that if the employees needed their jobs they had better vote against the Union. Another employee, Gloria Watson, testified that when she heard some of the operators say the plant would close, she ,asked McCain about the report and McCain said, "Yes, it would if the Union came in." McCain denied that she made the statements attributed to her by Shaw, Tanks- ley, and Watson. She testified that she had heard rumors in town about the plant closing and that when employees 'asked her if she had heard the rumors, she would reply in the affirmative. Shaw, Tanksley, and Watson impressed me as truthful witnesses and the remarks which they attributed to McCain were of a similar nature. I find that McCain made the statements substantially as testified to by them. By thus threatening plant closure or job reprisals should the Union succeed in organ- izing the plant, Respondent violated Section 8(a)(1) of the Act. 3. The unlawful conduct charged to Kenneth Carlton J. C. Littlejohn, who worked under Supervisor Carlton, testified that upon several occasions prior to the election he heard Carlton say that if the Union came in, the plant would close down. Carlton's version was to the effect that when they were talking about the Union, he merely said that he "felt like" the plant would close if the Union came in. He testified that he also told Littlejohn that he believed the advent of the Union "might cut the credit off in town" and asked Littlejohn "what he would do if the townspeople cut his credit off." - I accept Carlton's version of what he said to Littlejohn, but find nevertheless he threatened plant closure, in violation of Section 8(a)(1) of the Act. I make no lU Beiser Aviation Corporation, 135 NLRB 399, 400; The Charles V. Weise Co., 133 NLRB 765. EARLE INDUSTRIES, INC. 543 finding with respect to Carlton's loss-of-credit prediction since it was not litigated asan unfair labor practice. 4. The unlawful conduct charged to Robert Bledsoe According to the undenied and credited testimony of employee Jappie Pipes, his supervisor, Bledsoe, asked him about 2 weeks before the election whether he was for the Union or the Company. Pipes expressed himself as being neutral. Pipes further testified that shortly before the election, Bledsoe asked Pipes whether he had lost his "Vote No" sign and when Pipes replied in the affirmative, Bledsoe offered to get him another one. Robert McIntyre, another employee who worked under Bledsoe between late May and mid-July 1963, testified that on several occasions Bledsoe told him and other employees that if the Union came in, the plant would close and that upon one of these occasions, in the presence of McIntyre and employees David Turner and J. B. Cole, Bledsoe said that the Company "had already sent a man to Kentucky to get a plant and if the Union did come in there, they would close the mill down and move to Kentucky." The latter incident allegedly occurred a day or two after management representatives were observed measuring the machines. McIntyre also testified that shortly before the election Bledsoe asked him if he was going to wear a "Vote No" sign and McIntyre let Bledsoe pin one on him. On that occasion Bledsoe gave McIntyre a sign to pin on Pipes' back. On the following day Bledsoe pinned another "Vote No" sign on McIntyre's back. McIntyre also saw Bledsoe pin similar signs on the backs of two women employees. McIntyre further testified that about June 13, on the day of an attempted physical assault in the plant by some employees upon union advocate Littlejohn, Bledsoe came to McIntyre's machine and asked him whether he was "with them or against them" and that McIntyre replied that "in certain circumstances" he would have to be "with them" but that he would not fight. Bledsoe then told him "they was going to get some union people at the break." During the 10 a.m. break on June 13, six men, including Supervisor Bledsoe, approached employee J. C. Littlejohn, an ardent union advocate, as he and his wife were returning from the plant dining room. Two of the men, identified only as "Wayne" and "Squeeky," pushed Mrs. Littlejohn aside, grabbed her husband by the arms, and told him they were going to take him outside and beat him up, that they were "going to stop that stuff there and then." At that point Plant Superin- tendent Pascal intervened and told the men there would be "no funny business" in the plant. He told them to go about their business and they thereupon dispersed. Later that day four of the men who had participated in the morning incident, includ- ing Bledsoe, approached Littlejohn while he was at the drinking fountain. One of the men remarked, "Littlejohn, we scared you, didn't we?" Littlejohn denied that he was scared. Thereupon Bledsoe asked him, "What are you shaking for?"" Bledsoe denied that he told McIntyre the plant would close if the Union came in and testified that he only told McIntyre he had heard the plant would close after McIntyre asked him whether he had heard about it. Even accepting Bledsoe's ver- sion of the conversation, however, I find that Bledsoe's statement constituted a threat of plant closure should the Union succeed in organizing it. Bledsoe further testified that he did not ask McIntyre or anyone else in the plant to wear "Vote No" signs. I find, however, as testified to by McIntyre and Pipes, that Bledsoe offered employees those signs to wear and compelled them to declare openly an opposition to the Union. This conduct, like Bledsoe's interrogation of Pipes as to whether he was for the Union or the Company, tended to force the employees to commit them- selves for or against the Union whether or not they were ready or willing to do so, and in the context of the other coercive conduct herein found, was itself also coercive. I find that Bledsoe's threats of plant closure, his interrogation of employee Pipes, and his coercing of employees to wear "Vote No" signs, constituted violations of Section 8(a) (1) of the Act. For reasons stated hereinafter, no unfair labor prac- tice finding is based upon Bledsoe's conduct in connection with the attempted ejection of Littlejohn. 5. The alleged acquiescence and encouragement by Superintendent Pascal in the attempted ejection of Littlejohn As already noted, when the six men on June 13 sought to eject Littlejohn from the plant, Pascal separated them and told them he would have none of that "funny ll The findings in the above paragraph are based upon the undenied and credited testi- mony of Littlejohn , his wife, and Pascal. 744-670-65-vol. 146-36 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business" in the plant. Later in the day one of the men came to Littlejohn and told him the men were "going to catch [him] there in the back." Littlejohn and his wife thereafter went to Pascal, expressed a fear that Littlejohn would be beaten up, and asked for protection. Pascal assured them that there would be no trouble in the plant or on the Company's premises and that if Littlejohn had any fears as to what might happen to him outside the plant, he should consult the local police. The complaint alleges that Pascal as well as Bledsoe "acquiesced in and en- couraged" the attempted ejection of Littlejohn because of his union activities. Little- john and his wife appeared to interpret Pascal's admonition of the assailants against molesting Littlejohn in the plant and his later assurance to the Littlejohns that they would be protected on plant premises but that they would have to rely on local police for protection on the outside, as giving consent and encouragement to assaults upon Littlejohn outside the plant. I do not interpret his remarks as having that intention and I note that Littlejohn was not in fact assaulted outside the plant. I am not persuaded that Pascal acquiesced in or encouraged any assault upon Littlejohn. I find, moreover, that by his admonition to Littlejohn' s assailants on the morning of June 13 and his later assurances to Littlejohn and his wife that they would be protected on plant premises, he effectively repudiated Bledsoe's coercive conduct and relieved Respondent of responsibility therefor. 6. The alleged creation of an impression of impending plant closure because of the advent of the Union It is undisputed that on or about June 12, 1963, Respondent's president, Whitman, and his son-in-law, Don Feltsenthal, came into the plant with large blueprints and, with the assistance of Superintendent Pascal, Supervisor Gibson, and others, began taking measurements of the machines and floorspace. At the same time Respond- ent's printer, Dexter Young, at the direction of President Whitman, was taking pictures of the machines and equipment. Also during this period a broken-down stapling machine was crated and moved to the shipping department. Two other machines in addition were crated up. When employee Reeves asked Supervisor Gibson the meaning of these unusual actions, Gibson replied, "This is it. They are going to close it up." When employee McIntyre inquired of his supervisor, Bledsoe, the meaning of the measurement tak- ing, Bledsoe replied that he "figured" that was management's business, but a day or two later he told McIntyre he had heard the plant would be closed if the Union came in. These predictions of plant closure, as already noted, were also made by Supervisors McCain and Carlton either before or after the unusual actions directed by Whitman. President Whitman testified that the measuring of the equipment and floorspace, the taking of pictures, and the crating of the machines were each unrelated acts. His explanation for taking the measurements at that particular time was as follows: His sales department in New York wanted other items to be manufactured. When the plant was originally set up, about 10,000 feet of space was left for future expan- sion and Respondent had a lot of equipment it had never had time to install properly. In order to produce the additional items, in particular a shoebag file, it was necessary to lay out the plan of the plant again. The original blueprints of the factory space and machinery were not satisfactory because some of the measurements were not accurate. Whitman further explained that although Respondent had not made the contemplated changes or started the production of any of the new items by the date of the hearing in October, this failure was due to production and personnel problems and not to an abandonment of the plans. With respect to the picture taking , Whitman testified that this was for the purpose of getting out a new catalogue for 1964 similar to its 1963 catalogue in which Respondent's plant, equipment, and products were pictured . There was no partic- ular reason for selecting June 12 to take the pictures . It was only a coincidence that Whitman decided to take the pictures at that time. By the date of the hearing, Respondent had not yet taken steps to compile its 1964 catalogue. Whitman ex- plained the packing of the broken-down stapling machine as follows- "I had an offer. I was either going to send it back , have it fixed, or convert it into another type of machine, or if I had an offer to sell it , I had two or three others just like it. This opportunity arose and that is what I did." Respondent did not explain why employee Reeves was ordered to crate up two other machines about that time. Whitman at first testified that as of June 12 he had heard that there was a feeling around the plant that the Company might close and move away if the Union were voted in, but he stated, "I wouldn't like to have anybody point their finger at me and say that I said it." He then testified, "I hadn't heard of any rumors until I had made these pictures." Finally, however, Whitman changed his testimony again and stated that he heard the rumors before the pictures were taken . Although EARLE INDUSTRIES, INC. 545 Respondent, during this general -preelection period, was sending out letters to its employees advising them of the Company's position with respect to the Union and asking them to vote against it, it did not include in these letters any assurances that it had no intention of closing the plant if the Union won. Whitman testified, how- ever, that whenever anybody asked him whether he intended to close the plant, he denied such intention. I have no doubt that the coincidence of the measurements, the picture taking and the crating of machines with the approaching representation election and rumors of plant closure could reasonably cause, and did cause, employees to fear that their selection of the Union would result in plant closure. I am convinced from all the circumstances outlined above and from the lack of candor, the vagueness, and the inconsistencies in Whitman's' testimony that, even assuming legitimate business reasons existed for measuring the machines and floorspace, for the picture taking and for the crating of machines, the selection of one day shortly before the election for performing all of these tasks was for the purpose of dramatizing the actions and leaving the employees with the impression that the rumors of plant closure in the event of the Union's success were true. I accordingly find that Respondent thereby threatened its employees with loss of employment if they selected the Union as their bargaining representative and that this conduct was in violation of Section 8 (a)( I) of the Act. CONCLUSIONS OF LAW 1. Respondent, by threatening plant closure and other reprisals if its employees selected the Union as their bargaining representative, by purposely creating the impression of impending plant closure in event of union success, by interrogating an employee as to his voting intentions, and by requesting employees, and attempt- ing to force them, to wear "Vote No" signs prior to the representation election, has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1). 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, my Recommended Order will require it to cease and desist therefrom and to take the conventional type of affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Earle Industries, Inc., its officeis, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with plant closure or other reprisals if they select International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, as their bargaining representative. (b) Engaging in conduct designed to create the impression of impending plant closure if the employees selected the above-named labor organization to represent them. (c) Placing its employees in a position where they must declare themselves for or against the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, or otherwise interrogating its employees regarding their union sympathies or activities in a manner violative of Section 8(a)(1) of the Act. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant in Earle, Arkansas, copies of the attached notice marked "Appendix.12 Copies of such notice, to be furnished by the Regional Director 12In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Twenty-sixth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous. places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 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 20 days from the date of the receipt of this Recommended Order, what steps the Respondent has taken to comply herewith.13 13 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT threaten our employees with plant closure or other reprisals if they select International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, as their bargaining representative. WE WILL NOT engage in conduct designed to create the impression of im- pending plant closure if the employees select the above-named labor organiza- tion to represent them. WE WILL NOT place our employees in a position where they must declare themselves for or against the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, or otherwise interrogate our em- ployees regarding their union sympathies or activities in a manner violative of- Section 8(a)(1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. All our employees are free to become or remain members of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, or to refrain from such membership. EARLE INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any questions concerning this notice or compliance with its provisions. Ebner Bros. Packers and United Packinghouse, Food and Allied Workers, AFL-CIO. Cases Nos. 16-CA-1848, 16-CA-187!, and 16-CA-1888. March 31, 1964 DECISION AND ORDER On October 3, 1963, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take 146 NLRB No. 65.