Imco Container Co.

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I-B be sustained, that the election held on October 9, 1963, be set aside and a new election be directed. [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] Imco Container Company of Harrisonburg, a Division of Con- solidated Thermo-Plastics Company and Textile Workers Union of America, AFL-CIO. Case No. 5-CA-.425. August 14, 1964 DECISION AND ORDER On February 27, 1964, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. The Trial Examiner also found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that' these allegations be dis- missed. Thereafter, the Respondent and the Union filed exceptions to the Trial Examiner's Decision, and the Respondent filed a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers' in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds, as discussed hereinafter, that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. As reflected in his Decision, the Trial Examiner granted the Gen- eral Counsel's posthearing motion to dismiss the allegation of the complaint that the Respondent refused to bargain with the Union in • violation of Section 8(a) (5) of the Act. The Union has excepted to this ruling, as well as to a related procedural ruling made by the Trial Examiner at the hearing with respect to the Union's authoriza- tion cards. We agree with these rulings of the Trial Examiner for the following reasons : At a pretrial conference attended by representatives of the General Counsel, the Union, and the Respondent, the cards upon which the 148 NLRB No. 32. IMCO CONTAINER COMPANY OF HARRISONBURG; ETC. 313 Union based its claim of majority were inspected, and one of the Respondent's attorneys found 13 signatures he considered doubtful. On the first day of bearing, the General Counsel offered in evidence 95 signed union authorization cards; 83 constituted a majority. On the following day, the 13 employees whose signatures the Respondent had questioned were called to testify, without being told why they were called, and 10 testified that they had not signed the cards bear- ing their purported signatures. Immediately after the introduction of this testimony, the Respondent requested permission to remove all the cards from the hearing room to check their authenticity. The Trial Examiner, over the General Counsel's objection, granted the Respondent's request, stating that he was doing so to expedite the hearing by eliminating the need to call 60 to 70 witnesses, and to avoid the expense of an adjournment which "would require bringing the parties back [to the hearing] from considerable distance and at considerable expense." One of the Respondent's attorneys took the cards to the Respond- ent's plant, where he conducted individual interviews, in which he stated to each employee who had allegedly signed a card: We are here to get information in connection with an unfair labor practice hearing. Did you sign this card or authorize any- one to sign in your behalf, please answer yes or no, this will in no way have any effect on your job. During these interviews, nine more employees denied their purported signatures; all of them so testified at the hearing on the same day they were questioned by the Respondent. This testimony, together with the testimony of the 10 who had earlier denied their signatures, would, if credited, defeat the General Counsel's claim as to the Union ma- jority status.' On November 14, 1963, after the close of the hearing, the Union filed with the Trial Examiner a motion to reverse his ruling per- mitting the removal of the cards, and to declare a mistrial.2 On Sovember 15, the General Counsel filed a. motion with the Trial Examiner, urging that the S (a) (5) allegations of the complaint be dismissed on the ground that the record established that the Union did not represent a majority of the employees. On December 5, the Trial Examiner issued an order granting the General Counsel's mo- tion to dismiss the 8 (a) (5) allegations of the complaint, and re- atrirnled this ruling in his decision. The Union has excepted to the Trial Examiner's rulings in this matter, urges that a mistrial be de- 1In'the course of the hearing, the Respondent stipulated that it had refused to bargain The Union 's appeal from the Trial Examiner 's ruling had been denied by the Board without prejudice to the right to file a similar motion with the Trial Examiner. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glared, and contends that the employees who were questioned at the plant by the Respondent's attorney were intimidated and their testi- mony, therefore, was not credible. The record, however, does not sustain the contention that the em- ployees who testified subsequent to the Respondent's investigation were not testifying truthfully. The testimony in question was given under oath, in an opening hearing, and each witness was cross- examined by the General Counsel. Further, the Union adduced no evidence to contradict the employees who repudiated their purported signatures although some of the cards in question bore the initials of J. Colby Snyder, an International representative of the Union and its chief organizer at the Respondent's plant. A number of employees testified that he had asked them to sign cards and they had refused these requests.' It is significant, in our opinion, that, prior to the Respondent's investigation, 10 of the 13 employees who had been called to testify had repudiated the cards alleged by the Union to bear their signatures. No question has been raised as to the validity of their testimony. It was in the context of these repudiations by 10 out of 13 employees that the Trial Examiner permitted the re- moval of the cards by the Respondent, for the stated purpose of expediting the hearing and avoiding the expense that an adjourn- ment would impose on the parties. In all the circumstances of this case, we find that even if erroneous the Trial Examiner's ruling per- mitting the Respondent to remove the cards and conduct an ex parte investigation did not constitute prejudicial error nor an abuse of dis- cretion which would require that a mistrial be declared and a trial de novo granted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order, the Order recommended by the Trial Examiner, and orders that Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 3 Snyder testified generally , before any of the cards had been repudiated , that he per- sonally secured the signatures of 65 to 70 employees , and that his initials appeared on these cards Snyder did not otherwise identify these card signers . After Snyder testified, 10 of those employees whose signatures the Respondent had questioned before the hearing began repudiated their signatures ; 6 of these 10 repudiated signatures were on cards initialed by 'Snyder . Some of them testified that Snyder had solicited their signatures, but that they did not sign the cards . Snyder, later recalled as a witness by the General Counsel , testified that he secured the signatures of one of the employees who had denied signing the card, but was not questioned as to the remaining employees who had repudi- ated their signatures . Subsequently , following the Respondent ' s investigation , nine more employees testified and repudiated their signatures, including four whose alleged authorize tion cards bore Snyder ' s Initials Snyder was not called to rebut any of this testimony Some of the remaining cards which were repudiated were initialed by other employees, but they were not called to confirm the signatures thereon With one exception , there- fore, the testimony of the employees who repudiated their purported signatures stands unrebutted. IMCO CONTAINER COMPANY OF HARRISONBURG, ETC. 315 MEMBER BROWN, dissenting:. Because of What I regard as gross error on the part of the Trial Examiner herein, I would declare a mistrial and remand this case for a new hearing before another Trial Examiner. As noted by my colleagues, the Trial Examiner, overruling objec- tions thereto, permitted the Respondent to remove from the hearing the authorization cards admitted in evidence as proof of the Union's majority representative status so that the Respondent could conduct an ex parte investigation of their authenticity. My colleagues coil- elude that this ruling of the Trial Examiner was neither an abuse of his discretion nor prejudicial error. I disagree. By this ruling and solely for expediting purposes, the Trial Ex- aminer knowingly permitted the Respondent not only to conduct a "star chamber" proceeding as a substitute for the protected and orderly Board hearing, but also supplied such proceeding with an aura of governmental sanction through the use of official Board ex hibits. The effect was to grant to one of the parties a right which the Board alone is authorized to exercise.' This irregularity in pro- cedure alone is an abuse of discretion and I would find on that basis that prejudicial error was committed. Moreover, if the prejudicial nature of the ruling is evaluated from the standpoint of its effect, the facts also support the same conclusion rather than that reached in the majority opinion. For by his ruling the Trial Examiner enabled Respondent, with apparent authority, to subject employees to coercive interrogation on matters concerning employee freedoms which the Act was designed to protect. As a minimum requirement for ad- ministering the Act in accordance with the underlying congressional intent and objective, the Board as a matter of policy should not per- mit such ex parte use of evidence produced in a proceeding conducted under its auspices. The wisdom of such a policy is graphically demon- strated where, as here, the Respondent has already manifested its readiness to use unlawful interrogation and threats as a means of interfering with those rights guaranteed its employees by the Act. With respect to the prejudicial effect of the ruling, either my col- leagues misconstrue the import of the Union's argument attacking the procedure and the competency of the resulting testimony or they deem it immaterial that the testimony was obtained under ' duress. For, in response to the Union's contention that because the employees questioned under the above circumstances were intimidated their tes- 4 Contrary to the assertion of my colleagues , it is immaterial that the Trial Examiner's ruling occurred in the context of repudiations by other employees . For that testimony was given in open court , subject to cross-examination , and protection against improper pres- sures, and hence met the test of due process . Such repudiations cannot be used to validate a procedure which departs from the essential legal standards. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timony was not competent and not to be credited, the majority opinion asserts, in effect, that because the employees are credited, their testi- mony is competent, whether or not they were intimidated. This is inverse reasoning which will not withstand the test of logic. It is contrary to all standards for determining the probative value of evi- dence. And, in my view, it is tantamount to holding that the end (i.e., securing testimony which may be credited) justifies the means (i.e., engaging in intimidatory conduct), an approach to which I can- not subscribe. Whether or not the testimony is credible is immaterial to the issue under consideration-i.e., whether the Trial Examiner's ruling was prejudicial. That determination depends on whether the interroga- tion which was permitted was coercive. Accordingly, there is no occa- sion to evaluate the credibility of the witnesses unless and until it is determined that their testimony was competent, and that also depends upon whether the interrogation was coercive. Therefore, the crucial issue is whether the questioning of employees was coercive in nature, the very point which my colleagues attempt to evade. Certainly, it is inherently coercive for an employer to engage in interrogation such as occurred here, namely, confronting employees with official Board exhibits consisting of union membership cards bearing their signatures and inviting refutation thereof. For this reason, the Trial Examiner's ruling permitting such interrogation was clearly erroneous and prejudicial. Further, the natural tendency of the Respondent's conduct would be to intimidate and coerce em- ployees in the exercise of their Section 7 rights, and testimony se- cured as a result thereof is incompetent. In view of the foregoing, I would declare a mistrial and take all possible steps to expunge the effect of the Trial Examiner's error and the Respondent's conduct. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge, duly filed, the General Counsel for the National Labor Relations Board, for the Regional Director of Region 5 (Baltimore , Maryland), issued a com- plaint on June 28, 1963 , against Imco Container Company of Harrisonburg, a Division of Consolidated Thermo-Plastics Company,' herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices af- fecting commerce within the meaning of Section 8 (a)(1) and ( 5) of the National Labor Relations Act, as amended, 61 Stat. 136 , herein called the Act. The Respond- ent's answer denies the allegation of unlawful conduct alleged in the complaint. Pursuant to notice , a hearing was held in Harrisonburg, Virginia, on September 25, 26, and 27 , 1963, before Trial Examiner John P. von Rohr. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses , and to file briefs. A brief subsequently was filed by the Respondent and it has been carefully considered. i The Company's name appears as amended at the hearing IMCO CONTAINER COMPANY OF HARRISONBURG, ETC. 317 Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation with plants located in various States. The sole plant involved in this proceeding is located at Harrisonburg, Virginia, where it is engaged in the manufacture and sale of plastic containers. During the last 12 months the Respondent manufactured, sold, and shipped finished products valued in excess of $50,000 directly from its plant in Harrisonburg, Virginia, to points outside the State of Virginia. During the same period, it purchased goods valued in excess of $50,000 which were shipped to it from points located outside the State of Virginia. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, herein at times referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The withdrawal of the Section 8(a) (5) allegation The complaint in this case alleges, inter alia, that the Respondent refused to bargain with the Charging Union in violation of Section 8(a)(5) of the Act. This aspect of the case, which the General Counsel premised on a Joy Silk Mill type situation,2 was fully litigated at the hearing. Subsequent to the close of the hearing, the General Counsel on November 15, 1963, filed a motion with me to dismiss in its entirety those paragraphs of the com- plaint which alleged a violation of Section 8(a) (5) of the Act. The General Coun- sel's basis for such motion, as therein expressly stated, was that " the record herein establishes that the Charging Party did not represent a majority of the employees" in the appropriate unit at the time of the alleged refusal to bargain. On Novem- ber 21, 1963, I served upon all parties a notice to show cause why the aforesaid motion to dismiss should not be granted. On November 29, 1963, the Charging Party filed a response to the said notice to show cause. Upon consideration of all the foregoing, on December 5, 1963, I issued an order granting the General Counsel's motion to dismiss in its entirety the Section 8(a)(5) violation as alleged in the complaint. Accordingly, no further consideration will be given to the refusal-to-bargain aspect of the case as initially raised by the complaint. B. Chronology of events On February 28, 1962, following an organizational campaign, the Union lost a Board-conducted representation election among Respondent's production and main- tenance employees. On or about October 20, 1962, J. Colby Snyder, an International representative of the Charging Union, arrived in Harrisonburg and began a second organizational campaign among Respondent's employees. On March 12, 1963, the Union sent a letter to the Respondent stating that it represented a majority of the employees and requested a meeting for the purpose of negotiating a collective-bargaining agree- ment The next day, March 13, the Union filed a representation petition in Case No. 5-RC-4127 and on April 2, 1963, the parties executed a consent-election agree- ment which scheduled April 26 as the date of the election.- On April 23 the Union filed the charge in the instant case and on April 25 the Regional Director called off the election scheduled for the next day. C. Interference, restraint, and coercion 1. The wage increase; the alleged conferment of vacation benefits It is undisputed that on November 21, 1962, G. W. Butts, the Respondent's presi- dent, called a meeting of Respondent's employees and at this time announced, inter alia, that the employees would receive a wage increase of 5 cents an hour,-such in- 2 Joy Silk Mills, Inc, 85 NLRB 1263 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crease to be effective the first pay period of March 1963 . Butts conceded that at the time of this announcement he was aware that Colby Snyder, an organizer for the Union, was in town and that he suspected Snyder was there for the purpose of organizing Respondent's employees .3 In agreement with the General Counsel 's contention, I find that the announce- ment and the granting of the wage increase 4 during the Union's organizational campaign was violative of Section 8(a)(1) of the Act. This matter is so well settled that I do not deem it necessary to elaborate further, but reference may be made to the recent Supreme Court decision in N.L.R.B. v. Exchange Parts Com- pany, 375 U.S. 405. Indeed, in view of the vigorous antiunion campaign which followed, including the other illegal conduct hereinafter found , it may be con- cluded that the wage increase here was designed to thwart the Union 's attempt to achieve representation status.5 The complaint also alleges that the Respondent violated Section 8(a) (1) of the Act by announcing a change in vacation benefits on or about February 19, 1963. Apparently the General Counsel sought to prove that a notice which the Respond- ent distributed to its employees on February 19, 1963, announced an increase in vacation benefits from the vacation policy theretofore set forth in a booklet which Respondent distributed to all newly hired employees. However, the Respondent introduced a notice which it had distributed to the employees on February 16, 1962, this notice incorporating the same improvements to the theretofore existing vacation policy as did the February 19, 1963, notice. It therefore being apparent that the Respondent did not grant new vacation benefits during the 1963 organizational cam- paign, I shall recommend that this allegation of the complaint be dismissed. 2. Speeches to employees ; conversations with employees The complaint broadly alleges that during the course of speeches to employees and conversations with employees , Respondent's supervisors and managerial repre- sentatives made threats and/or promises of benefits in violation of Section 8(a) (1) of the Act. The General Counsel called nine employee witnesses to give testimony in support of these allegations . Unfortunately, and particularly in view of the voluminous testimony adduced, the General Counsel did not file a brief setting forth his contentions as to the specific utterances or conduct which he may claim to be unlawful . Accordingly, upon my consideration of all the testimony , I shall set forth only : (a) those statements made by supervisory employees which I find to be violative of the Act; and (b) statements which would be violative of the Act if believable, but concerning which there are issues of credibility. Ralph Hanson It is undisputed that Hanson , who supervises the largest department in the plant, made a speech to each of the three shifts of Respondent's employees, these occurring either on Friday, April 19, or on Monday, April 22. These speeches were held during working hours in various areas of the plant where the employees were called to assemble. While Hanson did not read from a prepared text, he testified, "I spoke from a brief outline and then I opened the, discussion wide open to people to ask questions, and then we jumped here and yonder." 6 Employee Lucille Gooden testi- fied that Hanson opened the gathering which she attended by stating that "the com- pany was opposed to us inviting in a third party" and that he thereupon asked the groups "who invited them over here, who had made it their business to invite them." Hanson did not deny this'testimony and admitted that he "asked the people if they had gone to anybody [at] Lynchburg to plead with these people to come and save them from a terrible employer." I find the foregoing to constitute an unwarranted interrogation of the employees concerning their union activity and' that as such it' constituted a violation of Section 8(a)( I) of the Act .7 8 It may be noted also that Snyder participated in the 1962 organizational campaign. 4 The wage increase was in fact granted on March 4, 1963 5 See also N L R B. v Pyne Molding Corporation, 226 F. 2d 818 (C.A. 2) ; The Bedford- Nugent Corp , 137 NLRB 1030, 1034. 6In considering the testimony of the employee witnesses, I have taken into account the fact that Hanson spoke extemporaneously and that the employees who testified may have been present at different meetings S When considered in the context of Respondent 's widespread antiunion campaign, I am persuaded that the interrogation 'here had coercive implications and that it was not law- ful within the scope of the Blue Flash principle. Blue Flash Express, Inc ., 109 NLRB 591. IMCO CONTAINER COMPANY OF HARRISONBURG, ETC. 319 There appears to be an issue whether Hanson, during the course of these meet- ings, made any unlawful threats or promises of benefit in his discussions with the employees concerning certain company benefits which they enjoyed without a union. These include the following: The profit-sharing and insurance plans- During his talk to the employees, Hanson was queried as to what would happen to the Company 's profit-sharing plan if the Union came in. Hanson testified that in reply he told the employees that if a profit- sharing plan was not negotiated in a contract the employee benefits accrued there- under would be frozen, that the employees would continue to draw interest on the principal, but that the principal could not be withdrawn until such time as the em- ployees left the Company. While in agreement with the foregoing , employees Minnie Raynes and Mary Breedon credibly testified that Hanson pointed out in addi- tion that none of the Company's collective -bargaining , agreements in other plants included a profit-sharing plan .8 Employee Robert Witherow testified that Hanson said the profit-sharing plan would have to be negotiated if the Union came in. I do not credit the testimony of Agnes Heatwole to the extent that she quoted Hanson as flatly saying "our insurance and profit sharing would be taken away from us," nor do I credit the testimony of Edith Blose to the same effect. Upon consideration of all the testimony on the subject , I am convinced, and I find, that Hanson did not tell the employees that Respondent would remove its profit -sharing or insurance pro- grams in the event they selected the Union . His references to the absence of profit- sharing plan provisions in Respondent 's contracts at other plants were factual matters and I regard them as protected by Section 8(c) of the Act .9 The 7-day workweek: Sometime before the Charging Union started its organiza- tional campaign, the Respondent changed from a 7-day workweek to a 5-day week. Clearly, the employees preferred the latter . The evidence reflects that during the talks in question Hanson made reference to contracts in other plants which called for a 7-day workweek . Several employees testified to the effect that Hanson stated the 7-day week would be restored at the Harrisonburg plant if the employees selected the Union . Hanson denied making any statement to this effect , it being his testi- mony that, "I told them that any 7-day operation would depend on contractual negotiations ." " 10 Employee Robert Witherow, a General Counsel witness, testified on direct examination that "He [Hanson ] said if the Union came in, it would be a matter to be negotiated , he wouldn't say we would work or wouldn 't work, it would have to be negotiated." I think Witherow's testimony is in keeping with the facts and I find that Hanson's statements concerning the 7-day workweek were unaccompanied by any threats or promises of benefit. As indicated heretofore , in the absence of specific contentions from the General Counsel , I shall not detail those aspects of Hanson 's talk to the employees which I find do not include statements volative of the Act. But briefly summarized, these included statements to the employees that : ii (a) unionization had not brought security to the employees of Respondent 's Kansas City plant ; (b) Respondent was attempting to negotiate a 25-percent reduction in wage rates at its Belvedere plant 8 The Respondent has various plants throughout the country,. some of which are orga- nized and some of which are not Hanson in this instance had reference to collective- bargaining agreements in Respondent ' s unionized plants. As noted hereinafter , Hanson and other of Respondent officials in their discussions with employees frequently compared the benefits at the Harrisonburg plant to those in the collective-bargaining agreements of its organized plants - °,That Respondent 's collective-bargaining agreements in other plants '. did not include a profit-sharing plan is a matter which is uncontested As to employees Heatwole and -Blose, it is quite possible that Hanson's reference to the lack of profit -sharing plans in these contracts led them to the conclusions to which they testified I might state here-and this is true of all the testimony in this case-that the variance in the testimony concerning what was alleged to have been said in speeches that were made more than 5 months prior to the hearing is quite understandable Not only do memories suffer from point of time, but it is, undoubtedly true that individuals listen to speeches with various degrees of attentiveness Thus, Agnes Heatwole, whose testimony I can give but little credence , admitted that, "I didn 't pay too much attention [to Hanson's talk] because I had my mind made up how I was going to vote, and I sat there wondering." 10 Hanson testified that he told the employees if he had his "own personal say" the plant would operate 7 days a week, but that "I definitely expressed this as nay own per- sonal feeling at that time." Hanson 's testimony to this effect is credited 11 There is no evidence , nor is there any contention , that the statements which follow are untruthful or that they in any way constituted a misrepresentation of fact. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of sloppy work which followed organization of the plant; (c) certain clauses in Respondent's contract with unions, such as seniority and management right clauses, were fairly standard, but that negotiations would determine what finally appeared in any contract they might have; and (d) violence had occured in a dispute between two unions at the Kansas City plant.12 Norman Southerly It is undisputed that Respondent authorized and encouraged its foremen to dis- play to the employees copies of collective-bargaining agreements which covered employees in certain of its organized plants. To this end the foremen carried copies of such contracts in their pockets to show to the employees when questions were asked. However, the evidence discloses that it was not uncommon for the foreman to approach and initiate conversations with individual employees or small groups of employees concerning the present benefits which they enjoyed as con- trasted to possible disadvantages which might arise if they chose the Union. Dur- ing these conversations the foremen would refer to specific clauses in the contracts which had been underlined, these including such clauses as the management-rights clause and the absenteeism clause. As an illustration, employee Lucille Gooden testified that Norman Southerly, the general foreman under Hanson in the decorat- ing department, approached a small group of employees, including herself, and displayed a copy of the Kansas City contract. According to Gooden, whose testi- mony is here credited, Southerly pointed to the fact that at Harrisonburg "nobody would say very much" if the employees missed' work for a day or two, but that at the Kansas City plant the employees were excused "only if the company see fit." While Gooden did not articulate, Iithink it clear that at the time Southerly referred the employees to the absenteeism clause in the Kansas City plant. As is apparent from the foregoing, Southerly was one of the foremen who' dis- cussed union contracts with the employees; and, in that connection, his discussions included references to possible disadvantages which might result if the employees selected the Union and a collective-bargaining agreement was negotiated. How- ever, although Southerly spoke to the employees in the manner as aforesaid, I find nothing in the testimony to support the complaint's allegation that Southerly made unlawful threats or promises of benefits to employees because of their union activities. Accordingly, insofar as the complaint alleges that Southerly engaged in conduct violative of Section 8(a)(1) of the Act, I shall recommend that this allegation be dismissed.13 Marie Moubrey Ruby McKenney, an employee of the Respondent at the times material hereto, testified that prior to the scheduled election Leadlady Marie Moubrey 14 approached her at various intervals to show her certain clauses in Respondent's various collective- bargaining agreements. McKenney testified that on a number of these occasions Moubrey stated that the employees would lose their profit-sharing and insurance plans. She further testified that on one such occasion she asked Moubrey as to the meaning of a certain contract and that Moubrey replied, "It means exactly what it says. In fact the corn is just beginning to pop . . . the plant will close down if we vote the union in." Moubrey denied making any of the foregoing statements and in fact denied that she ever spoke to McKenney about profit sharing or insurance. However, on cross-examination, Moubrey conceded that, "I told them [the employees] that they may lose their profit sharing when some of them asked me." I credit McKenney's testimony concerning her conversations with 12 In addition, Hanson: (a) referred to the Union as gangsters and (b) predicted the possibility of a strike if the employees selected the Union While these statements show hostility to the Union, it is well settled that statements of this nature do not constitute independent violations of Section 8(a)(1) of the Act. "I have considered the testimony of Norma Martin concerning an incident which took place shortly after the scheduled election Concerning this incident Martin testified, "Norman Southerly said that the Union would come back providing the company got rid of the ring leader, and he did specifically name Mary Breeden " I find no basis for finding a violation on this ambiguous testimony 14 Respondent does not dispute Moubrey's supervisory status and states in its brief that: "Leadladies are the first level of supervision at the Harrisonburg plant " IMCO ^ CONTAINER COMPANY OF HARRISONBURG, ETC. 321 Moubrey as set forth above. Accordingly, I find that by reason of Moubrey's threats the Respondent engaged in interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. Guy Shoemaker Employee Robert Witherow testified that near the beginning of April he and several other employees were discussing the Union in the lunchroom when Guy Shoemaker, a shift supervisor, came up and joined the discussion. According to Witherow, Shoemaker at one point told the group that "Mr. Butts could shut down the plant and could close the doors if the Union came in." Mary Breedon, who was also present, testified that during this discussion, "he [Shoemaker] said that before Mr. Butts would give us a 30-cent raise an hour to equal our wages to Kansas City that he thought the old man would close the doors first." Shoemaker conceded making the statement attributed to him by Breedon, but otherwise denied only that be made any flat statement to the effect that the plant would shut down if the Union came in. I credit the testimony of Witherow 15 and find that Shoemaker's state- ment to the effect that Butts could close the plant if the Union came in was violative of Section 8(a)(1) of the Act.16 Wendell Fish The complaint alleges that Wendell Fish, a managerial representative in charge of Respondent's fringe benefit program, made coercive statements to the employees during a speech he made on April 24, 1963. With the exception noted below, there is no dispute as to what Fish said in his talk to the employees on this occasion. The focal point of Fish's discussion was to point out to the employees the benefits which they presently received as compared to those provided for under a contract at one of Respondent's organized plants. A blackboard was set up which reflected the comparative figures of each. There is no evidence or contention that Fish in any way misrepresented the facts which he thus presented to the employees. In addi- tion, Fish told the employees that if they elected the Union, "You may have a profit- sharing plan, you may have a pension plan or any other plan but whether or not this will be the case will be dependent on the result of the negotiations and the con- tract ultimately agreed upon." Other than the foregoing, employee Mary Breedon testified that during the speech Fish told the employees "we would lose our insurance if the union did get in." I do not credit Breedon's testimony as aforesaid. In the first place, she was the sole wit- ness to so testify. In view of the fact that Fish addressed all of the employees, it seems reasonable to assume that the General Counsel could have produced other witnesses to support this testimony. Secondly, Fish was in the higher strata of Re- spondent's supervisory structure. Since the evidence discloses that the managerial employees were given legal advice as to their limitations in combating the Union, I think it highly unlikely that one in Fish's position would make a statement which would constitute such an obvious violation of the Act. In sum, other than the fore- going testimony which I have discredited, there is no evidence-of any coercive state- ments made by Fish in his speech of April 24 and I shall recommend that this alle- gation in the complaint be dismissed. 3. Respondent's letters to employees The complaint further alleges that Respondent violated -Section 8(a)(1) of the Act by making coercive statements or promises of benefits in a series of letters to its employees, these bearing the dates of January 14 and April 17, 18, 19, 22, 23, and 24, 1963. While the complaint is couched in the broadest of terms, the General Counsel has again failed to delineate the portion or portions of these letters which he contends to be violative of the Act. I have examined these letters in their en- tirety and I find nothing in them which supports the allegation that they contain statements which are in violation of Section 8(a) (1) of the Act. While these letters do show that Respondent was quite vigorously opposed to the Union, I am satisfied 15 Witherow impressed me as an honest witness . He did not stretch the truth and freely responded to all questions put to him on cross -examination. 16 Shoemaker conceded that he frequently discussed the Union with employees . In fact his testimony reflects that his activities in this regard were so extensive that he could not identify all the employees to whom he spoke nor could he recall everything he said on these occasions. 760-577-65-vol. 148-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the expressions contained therein come within the "free speech" protection of Section 8 (c) of the Act.17 Accordingly, I shall recommend that this allegation in the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor practices burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)( I) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Imco Container Company of Harrisonburg, a Division of Consolidated Thermo- Plastics Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section III which has been found to constitute un- fair labor practices, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The Respondent has not engaged in the other unfair labor practices alleged in the complaint which are not herein specifically found. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent, Imco Container Company of Harrisonburg, a Division of Consolidated Thermo-Plastics Company, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)( I) of the Act. (b) Threatening employees with loss of economic benefits, including a threat to close the plant, if they designated or attempted to get a union selected as their collective-bargaining representative. (c) Promising or granting employees economic benefits for the purpose of dis- couraging their union activities. (d) In any like or related manner interfering, restraining, or coercing employees in the exercise of the right to self-organization , to form labor organizations , to join or assist the above-named Union, or any other labor organization , to engage in other concerted activities for purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant in Harrisonburg , Virginia, copies of the attached notice marked "Appendix A." 18 Copies of said notice, to be furnished by the Regional 17 L' make the same finding with respect to a notice which Respondent posted on Its bulletin board contrasting the wage scale at its Kansas City plant to the wage scale at its Harrisonburg plant. In this connection I note that the Union's campaign literature also made comparisons of the wage scale at the Harrisonburg plant with other of Re- spondent's organized plants. 11 In the event that this Recommended Order shall 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 it decree of a United States Circuit 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." LAMAR CREAMERY COMPANY 323 Director for Region 5 (Baltimore, Maryland), shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon re- ceipt 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 custom- arily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondent has taken to comply therewith.19 I further recommend that the complaint be dismissed insofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative in this Decision. 19 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed in Section 7 of the Act by promising or granting them economic benefits; or by changing the terms or conditions of their employ- ment: Provided, however, That nothing in this Recommended Order requires us to vary or abandon any economic benefit or any term or condition of em- ployment which has heretofore been established. WE WILL NOT threaten our employees with loss of economic benefits, nor will we threaten them with other reprisals if they designate or attempt to get Textile Workers Union of America, AFL-CIO, or any other labor organization, se- lected as their collective-bargaining representative. WE WILL NOT interrogate our employees concerning their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or co- erce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, to remain, or to refrain from becoming or remaining, members of any labor organization of their own choosing. IMCO CONTAINER COMPANY OF HARRISONBURG, A DIVISION OF CONSOLIDATED THERMO-PLASTICS COMPANY, Employer. Dated------------------- By---------------------------------- --------- (Representative) (Tt 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any questions concerning this notice or compliance with its provisions. Lamar Creamery Company and Glenn Moss. Case No. 16-CA- 1953. August 14, 1964 DECISION AND ORDER On May 11, 1964, Trial Examiner John P. von Rohr issued his De- cision in the above-entitled proceeding, finding that the Respondent 148 NLRB No. 35.