Crystal Lake Broom Works

CRYSTAL LAKE BROOM WORKS 429 James. A. Pearson, Rufus S. Pearson and Mrs. E. W. Pearson d/b/a Crystal Lake Broom Works and Retail, Wholesale and Department • Store Union, AFL-CIO. Case 10-CA-5967. June 15, 1966 . DECISION AND ORDER On September 15, 1965, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respond- ents filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and -Jenkins]. 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 Deci- sion, the exceptions, cross-exceptions, briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations 1 of the Trial Examiner with the following modifications. In dismissing the allegation that the Respondents refused to bar- gain with the Union in violation of Section 8(a) (5), the Trial Examiner found that the appropriate unit was comprised of 88 employees on the demand date, and, accordingly, 45 valid authoriza- tion cards were necessary to support the demand. On that date the Union claims it had 48 signed authorization cards. Of these, the Trial Examiner specifically rejected 5 cards thus reducing the num- ber of valid designations to 43 cards, which falls 2 short of the nec- essary number needed for a valid demand. Accordingly, the Trial Examiner recommended that the Section 8(a) (5) allegation of the complaint be dismissed. We agree. In concluding, as we do, that 1 The Trial Examiner found that the Employer violated Section 8 (a) (1) of the Act by announcing a paid vacation to its employees on December 18, 1964 , while objections to the election were pending. The Respondents argue that the decision of the U.S. Court of Appeals in N.L.R.B. v. Amboc, Inc., 357 F.2d 138 (C.A. 5), denying enforcement of the Board's Order in 146 NLRB 1521 . under similar circumstances, is controlling here. We respectfully disagree with the court and reaffirm the holding of the Board in Ambom, Inc. 159 NLRB No. 30. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the dismissal is the proper disposition of the refusal-to-bargain alle- gation, we find it unnecessary to approve all of the factual-findings or evidentiary analyses made by the Trial Examiner. It is`only nec- essary here to affirm his conclusions that the record raises.such grave doubt about the validity of a sufficient number of cards submitted by the General Counsel that the Union's assertion of majority represen- tation at the critical time cannot be sustained. From the entire rec- ord we believe that the circumstances under which the authorizations were obtained on a sufficient number of cards cast doubt on their validity. Consequently, we find that the General Counsel failed to demonstrate that at least 45 employees selected the Union as their collective-bargaining representative on the demand date, and we adopt the Trial Examiner's recommendation that the complaint be dismissed insofar as it alleges that the Respondents unlawfully refused to bargain.2 THE REMEDY We 'adopt the Trial Examiner's finding that the Respondents' preelection campaign leaflets and speeches, as well as its interroga- tions and threats, considered in their entirety, were designed to communicate to the employees that it would be futile for them to select-the Union as their bargaining representative for the purpose of improving their conditions of employment and that such a selec- tion would result only in strikes, violence, and loss of jobs and that it would change their conditions only for the worse. We find that the nature and magnitude of this campaign not only violated Sec- tion 8(a) (1) of the Act,3 but destroyed the atmosphere which the Board seeks to preserve in its elections so that the employees may exercise freedom of choice on the representation r question. We feel that such an atmosphere of fear and complete futility can be coun- teracted or prevented in the future only by use of the remedy estab- lished by the Board, in H. TV. Elson Bottling Company, 155 NLRB 714. Accordingly, we shall require the Respondents to: (1) mail to each of their employees a copy of the notice herein after the notice is signed by Respondents' representative, in addition to posting cop- ies thereof at all places in their plant where notices are customarily posted; (2) grant the Union and its representatives, upon their request made within 1 month of this Decision, reasonable access for a 3-month period to its bulletin boards and all places where notices to employees are customarily posted; and (3) make available to the Union and its representatives, upon request of the Union and at a mutually agreeable time, within 3 months- of this Decision, suitable z Trend Mills, Inc., 154 NLRB 143. 3 See Brownwood Manufacturing Company, 149 NLRB 921. CRYSTAL LAKE BROOM WORKS 431 facilities, such as are customarily used for employee- meetings so that the Union may speak to the employees- assembled fora 1-hour meet- ing-on company time. Upon request of the Union made within 30 days immediately following compliance herewith by Respondents, we shall conduct an election in the appropriate unit alleged in the com- plaint and admitted by the Respondents. [The Board adopted the Trial Examiner's Recommended Order, as' modified below [1. Delete paragraphs 2(a)"and (b) of the Trial Examiner's Rec- ommended Order, and substitute the following : [",(a)• Mail a' copy of the attached notice to each employee and post copies thereof at their plant in Autaugadille, Alabama. Copies of said notice, to be furnished by the Regional Director for Region 10, shall be signed by a representative of the Company, and addi- tional'copies' hill 'be posted by it and be maintained. by it, for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material." P (b) Upon request of the Union made 'within 1 month of this Decision, immediately grant the Union and its representatives rea- sonable access -for a 3-month period to, its bulletin boards and all places where notices to employees are customarily posted." [" (c) Upon request of the Union, make available' 'to the Union and its representatives, at a mutually agreeable time within -3 months of this Decision;' suitable facilities such as are customarily used for employee meetings so that the Union may present'its views to the employees assembled on company time. Such facilities shall be made available for a 1-hour meeting at the Respondents' plant."] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE . This complaint 1 under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), heard by Trial Examiner Robert Cohn at Pratt- ville, Alabama, on June 8 and 9, 1965, involves allegations that James A. Pearson, Rufus S. Pearson, and Mrs. E. W. Pearson, d/b/a Crystal Lake Broom Works (herein called Respondent or Company or Employer), violated Section 8(a)(5) of the, Act by refusing 'to bargain collectively with Retail, Wholesale and Department -Store Union, AFL-CIO (herein called the Union), and by said conduct, and other acts hereinafter' more fully detailed, also interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the'Act. Respondent duly filed its answer, which; in substance, generally admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practices. 1 Issued April 15, 1965, upon a charge filed January 25, 1965 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representatives of the parties appeared at' the hearing and were afforded full opportunity to participate therein. Respondent and the General Counsel filed post- hearing briefs, which have been duly considered.2 Upon the entire record in the case, including my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 3 1. THE UNFAIR LABOR PRACTICES A. Background and sequence of events The Company is engaged in the manufacture and sale of brooms, mops, and handles in the small community of Autaugaville, Alabama: As the caption indi- cates, it is a family owned and operated enterprise employing approximately 88 production and maintenance employees, the great majority of whom are members of the Negro race. It is readily apparent from observation and evidence in the record that these employees occupy the lowest rungs of the economic and literacy ladders. Many of them could neither read nor write, and these circumstances, taken with the fact that the Employer's operation was located in a small community with concomitant lack of alternative employment opportunities, resulted in the employees being heavily dependent upon the Company for their livelihood.4 The Union commenced an organizational campaign among the employees in August 1964, under the aegis of Organizer Henry Jenkins. Jenkins held meetings at the homes of employees at least once a week and there explained the asserted benefits of unionism to those in attendance, and distributed authorization cards. Many of the cards were signed at the meetings but others were signed at employees' homes, and at or near the plant upon the solicitation of employee organizers like Felton Davis. All of the cards, however, were eventually turned in to Jenkins at the weekly-meetings which were normally held on Saturday. By September 9, 1964, the Union assertedly represented a majority of the-Com- pany's employees.5 On that date, about 2 : 30 p.m., International Representative John L. Parker placed a long distance call from his office in Birmingham , Alabama, to James A. Pearson, a partner in the Company, in Autaugaville. After identifying himself, Parker stated that he (the Union) represented a majority 6 of the Com- pany's employees, that recognition as collective-bargaining representative was requested, and that he would like to sit down and work out a contract. Pearson replied that he did not known anything about the Union, that he did not know 2 Concomitantly with the filing of its brief on July 12, 1965, Respondent filed a motion to correct transcript in certain particulars, which motion was served upon Counsel for General Counsel The latter did not file any objections. After comparing the particulars of the motion with the transcript, I find the motion to be well taken, and it is hereby granted and entered into the record herein as Trial Examiner's Exhibit 1. To the changes there made, the Trial Examiner hereby orders the following additional corrections : page 5, line 24 change "November" to "September"; page 6, line 9 change "will tell you" to "take"; page 23, line 24 change "of" to "on"; page 200, line 6 strike the word "not" ; page 243, lines 3 and 9, change "Dundee" to "Dunden." 3 As above noted, no issue of interstate commerce or labor organization is presented. The complaint alleges and the answer admits facts necessary to establish said elements. I find those facts to be as pleaded. A These facts become quite significant In assessing the issues dealing with the employees' understanding of the Union's campaign and the authorization cards, the Impact of the Employer's antiunion campaign and, of course, in the assessment and evaluation of the employees' overall testimony in this case. 5 At that time Jenkins claimed that he had 48 signed authorization cards and the Union estimated that there were 80 employees in the unit at least that was the number which was apparently placed on the petition which the Union filed that day. However, it devel- oped that at that time there were actually 88 employees In the production and maintenance unit subsequently found to be appropriate for purposes of collective bargaining. e The Company in its brief makes the contention that Parker used the word "group" rather than "majority." However this appears to be based upon an error of the typist who copied Jenkins' prehearing affidavit. (General Counsel Exhibit 64A. Jenkins listened in on the conversation on an extension telephone in Parker's office ) The original of the affidavit (General Counsel's Exhibit 64) clearly used the word "majority," and consider- ing that Pearson did not flatly claim that Parker did not use that word, I credit Parker. CRYSTAL LAKE BROOM WORKS 433 whether the employees wanted Parker's Union to represent them or not, and that, in any event, he was only a partner and that he would have to consult with the other two partners and with the Company's attorneys before any statement could be made respecting recognition. Parker responded that there were several ways in which this issue could be resolved and mentioned the filing of a petition as a possible recourse. Parker confirmed the conversation by letter (General Counsel's Exhibit 8), as did Pearson (General Counsel's Exhibit 9). Later in the day on September 8, Parker completed and dispatched to the Board's Region 15, in New Orleans, Louisiana, a petition for election accompanied by 43 authorization cards. The petition and cards were received in the New Orleans Regional Office on the morning of September 10, as evidence by the stamp of the Regional Office on the back of each of the 43 cards. However, it appears that the Union sent the petition and cards to the wrong Regional Office-that, in fact, the Board's Region 10 in Atlanta, Georgia, was the proper place since it had jurisdiction over this particular county in Alabama. Accordingly, Region 15 dispatched the petition and cards to Atlanta, and so notified Parker. The documents were received in Atlanta the following Monday, September 14, and the case was docketed as 10-RC-6078. On October 9, 1964, a hearing was held on said petition, and the Regional Direc- tor issued his Decision and Direction of Election on October 21, 1964. The elec- tion was held on November 13, 1964, which the Union lost by a vote of 31 to 51. On November 17, 1964, the Union filed objections to conduct affecting the results of the election, and on January 7, 1965, the Regional Director directed a second election which was scheduled to be held on January 29, 1965. However, the charge in the instant matter was filed on January 25, which had the effect of blocking further proceedings in the representation matter. B. Interference, restraint, and coercion 1. Leaflets and speeches The parties stipulated that during the period from October 13 through Novem- ber 7, 1964, the Respondent promulgated and apparently distributed to all employ- ees five letters or leaflets (General Counsel's Exhibits 2 through 6a). It was also stipulated and agreed that during the period from October 2 through November 12, 1964, James A. Pearson, one of the partners of the Respondent, made four speeches to all employees on company time and premises. All the speeches were written (General Counsel's Exhibits 59 through 62).7 The complaint alleges that Respond- ent violated Section 8(a)(1) of the Act in that certain language contained in such leaflets and speeches threatened the employees with economic reprisals if the employ- ees selected the Union to represent them. Respondent contends that all the state- ments were protected free speech within the meaning of Section 8(c) of the Act. That Respondent intended, by use of the leaflets and speeches, to make its employees acutely aware of its definite antiunion position, and to disabuse its employees of the alleged advantages of belonging to and participating in a union, is undenied. Thus in his first speech to the employees on October 2, Pearson stated at the outset that "We don't want any union here. We intend to use every legal means at our disposal to keep unions out of this company." He went on to explain the reasons why the Company felt that way. First, he stated that the employees did not need a union because the Company had always treated its employees "fair and square" and had provided working conditions as good as if not better than any of its competitors. Secondly, a union would have a deleterious effect on the good and healthy relationship which had been built up over the years between the Respondent and its employees; indeed such relationship "would probably be destroyed." Pearson then went on to explain that he did not believe that there was anything that a union could do but hurt the employees, "it can't help you." At that point, Pearson commenced a theme which was repeated and reiterated in every subsequent 7 Although there is some contention in the record that on one occasion Pearson deviated from the'exact language of one of the speeches, I find such evidence vague and insufficient to support such contention and find that the contents of the speeches are as transcribed in the aforementioned exhibits, and were so read to the employees in the language of said exhibits. 243-084-67-vol. 159-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD communication by Respondent to its employees from that time until the election on November 13. That theme was that the Union was making many promises to the employees regarding better working conditions which the Union would be able to secure for them; that the law did not require the Company to agree to any of the Union's demands; that the only way that the Union could enforce such demands would be by calling the employees out on strike, and that if that happened the only result to employees would be that they would be out of a job. This because, if the Company were faced with a strike it would only have two choices: (1) to go out of business, which would result in employees losing their jobs, or (2) permanently replacing the employees which, under the law, the Company was perfectly free to do. It was also made plain to the employees that during a strike, they would not get paid either by the Company or the Union, nor could they draw unemployment compensation. Continuing, Pearson pointed to the precarious economic circumstances of the broom industry, particularly the danger to financial solvency as a result of foreign competition-principally from Mexico. He pointed out that he could buy brooms in Mexico cheaper than he could make them in the plant in Autauga County for one reason-because of the much lower wages paid to Mexicans than Respondent paid its employees. He went on to point out that over 450 broom factories in the United States had been forced to close because of such competition and that "at least" 22,500 workers like you lost their jobs! Think about that the next time you think about a union." Bringing the point closer to home, Pearson named a broom company in Birming- ham, Alabama, which had closed and employees lost their jobs because a union was installed there and demanded higher wages. He also made mention of a broom company in Illinois that had been in business for over 80 years and then closed in 1964 after a union "got in there." To remove any doubt of the Company's ability and lawful prerogative to close its business, Pearson referred to the case of Peerless Woolen Mills, in nearby Ross- ville, Georgia, where in 1961 a union won an election and 2 or 3 months later the Company announced that it was going to close down and liquidate the plant. Pear- son noted that the United States District Court denied the union's petition to enjoin the closing and liquidation and upheld the right of an employer "to liquidate and go out of business without the necessity of bargaining with its employees concerning the liquidation." In the next speech, on October 9, Pearson continued the refrain commenced in the first speech. After claiming that the Union had lied to Respondent's employees concerning the benefits paid by a competitor in Sylacauga, Alabama, he asserted that the Union similarly lied to the employees concerning the bene- fits which the Union could secure for them. He pointed out that the only way that the Union could keep its promises in this regard was to call a strike, and that the strike would result not only in the loss of wages but possibly jobs since the Company was free under the law to permanently replace the employees. In this speech, Pearson went one step further and pointed out to the employees that " . . It would be very difficult for you to find another job without having to leave this county." He went to to say that he ". . . hope[d] [the employees] will see the light before it is too late. Once you vote for the Union there is nothing else we can do." The same message in almost the same language-like a broken record-was repeated to the employees in speeches by Pearson on November '5 and 12. In the last speech-made just outside the 24-hour period-Pearson, after pointing out the irrevocable mistake which the employees would make the next day if they voted for the Union, held up a newspaper article from Suffolk, Virginia, which described some of the circumstances of a strike in which the Union had been engaged there. He pointed out the violence connected with the strike as well as the economic deprivation endured by the strikers in terms of lost wages. He again adverted to the probability of a strike at Respondent's operation in view of the fact that the Union had made promises which it could not keep because the Company would not accede to these demands; therefore, the only alternative of the Union would be to call the employees out on strike which would necessarily result in substantial loss to the employees. At that point, as had been done in the previous speech, Pearson went into a detailed explanation of the voting procedure, and particularly how to put an "X" in the "No" square. The leaflets distributed by the Company to its employees doing this same preelection period contained substantially the same message as the speeches, in CRYSTAL LAKE BROOM WORKS 435 practically the same language . The leaflets tended to be a bit more graphic, in that all but one carried an attached cartoon which was directed toward bringing home the message of loss of job security which a union would bring to the Com- pany and its employees. Thus, one of the cartoons indicated a picture of a finance company official stating to a family that he either had to have the money or the car because the finance company couldn't wait until the strike was over. At the bottom of the cartoon was the language "Don't let this happen to you- vote No!" Another cartoon stated "Strikes mean: picket lines, violence, lose of pay, hardships. Will this be you? Vote "NO!" Another cartoon indicated union organizers in an automobile with a bag of money tied to the top with the question "What are they getting out of thin" The final cartoon indicated some employees, dissatisfied with the strike, dis- carding their picket signs and saying "Let's go back to our jobs." At the bottom, in capital letters, it is stated "ZING-it's too late!", and a sign on the building read "No vacancies." 2. Alleged interrogation and threats The complaint alleges, and the answer denies, that Respondent, by its copartner, James A. Pearson, on or about October 1, 1964, in the plant area, interrogated its employees concerning their union membership, activities, and desires, and threatened its employees that it would close or move the plant if the Union were successful in its campaign to organize Respondent's employees. - In support of such allegation, the General Counsel offered the testimony of employee, Charlie Howard, who, stated in substance, that several weeks before the election Pearson approached him on the job and asked him if he knew anything about a union and if he had ever worked for the Union before. Howard answered "Yes" to both questions. Then Pearson said that if he could not make a profit he would have to shut the broom factory down and move to Mexico, and instructed Howard to talk to the boys and vote against the Union. Pearson's version of the conversation is not substantially different. He testi- fied that he told Howard that he understood some of the boys felt that they wanted a union. Upon Howard's affirmative response, Pearson said he was having a lot of trouble with imported brooms from Mexico and that if the Union came in and made a lot of demands that Pearson thought he could not fulfill, he didn't know what would happen. According to Pearson, Howard responded that he (Howard) knew that was right-that the Company had to make a profit and that he was sure the other boys knew that too. In view of the similarity of the testimony, I find it unnecessary to resolve the differences insofar as the alleged interrogation is concerned since even under Pearson's version I would find that there was an implied inquiry into the union proclivities of Howard and the other employees which was not justified under the circumstances. That is to say, the inquiry was not made for the purpose of responding to an assertion of majority status by the Union even though such a claim had, of course, been made .8 Nor had any assurance against recrimination been given.9 Rather the statement was made in the context of apprehension as to what would happen if the Union came in the plant, and the probability that the consequences would be bad. With respect to the alleged threat, I would credit Howard who impressed me as a truthful witness and , demeanor considera- tions aside, his version of the conversation sounds more probable since it is consistent with what Pearson was stating in the leaflets and speeches. As such, contrary to Respondent's contentions, an employer's threat to shutdown (or remove) a plant predicated upon the Employer's asserted inability to meet wage demands of a union violates Section 8(a)(1).10 According to the testimony of employee Granger Palmer, about a week before the election there were two people from Mexico looking around the plant. Foreman Higginbottom mentioned to Palmer that the two men worked in Mexico and that if "Mr. James (Pearson)" had to close down he would move his plant to Mexico-that Mr. James would probably move his factory to Mexico if the 8 Cf. Blue Flash Empress, Inc., 109 NLRB 591. 6 See Johnnie's Poultry Co., 146 NLRB 770, enforcement denied 344 F 2d 617 (C.A. 8) ; N.L.IL B. v Cameo, Inc., 340 F .2d 803 (C A. 5). 10 Johnnie's Poultry Co, supra, p. 771; see also Miller-Charles and Company, 146 NLRB 405. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union came in and he could not meet their demands. Higginbottom also asserted that he would just as soon be in Mexico as in Alabama because he had a family to support and he had to work. Higginbottom recalled a conversation with Granger Palmer in October 1964, in which the Union was mentioned but he did not recall that it involved the two men from Mexico (although he remembered their being there); he recalled that the Union was mentioned in the context of a remark that he (Higginbottom) made to the effect that when he worked at Hayes Aircraft there was a union in the plant and foremen were not allowed to work. He continued, "As I understood it, if they had a union put on the job they would have to close the job down." Higginbottom did not impress me as a credible witness nor did his testimony, as stated, make much sense. Accord- ingly, I credit Palmer's version and find that the threat to move the factory con- tained therein constituted a violation of Section 8(a)(1) even though such threat was conditioned upon the Employer not being able to meet the Union's demands." 3. The paid vacation The complaint alleges that Respondent, on or about December 18, 1964, unilaterally and without notification to or consultation with the Union, granted one week's vacation with pay to its employees in the unit described. Respondent agreed and stipulated that on said date the Company announced and granted one week's vacation with pay to the employees without notification to or con- sultation with the Union.12 Respondent contends, however, that no violation of law occurred because the plans for such benefit were made among the part- ners many months before the union campaign began and, therefore, were untainted by union considerations. Thus Pearson's uncontradicted testimony shows that since 1959, it had been a practice of the Company to close the plant a week without pay during Christmas. He first discussed the issue of vacation pay with his partners in July 1963, and it was decided that if business conditions continued the second half of the year as they had the first half, the Company would pay the employees for the unworked Christmas week. However business declined considerably during the last half of 1963, and the partners decided in November of that year that they would not be in a position to pay the week's vacation. Nevertheless, according to Pearson, in January 1964, the partners decided definitely to pay the employees for the week the plant was closed in 1964 regardless of whether the Company showed a profit or not. As above noted, on December 18, 1964, Pearson made an announcement to the employees concerning vacation pay.13 Pearson testified that he called all the employees together in a group just before quitting time and told them that, as was customary, the plant would be closed the following week, but that unlike previous years they were going to be paid for that week. He told them that the Company had planned to do that in 1963, but due to business circumstances they could not do so; however, in 1964, the Company had had a good year and was in a position to give them a paid vacation. He advised how the pay would be computed-based on length of service-and closed the speech wishing them a Merry Christmas and a Happy New Year. As above noted, Respondent con- tends that the vacation pay announcement was not intended as a means of com- bating the Union because it was made after the election, and, in any event, since it was substituted for previous benefits,14 it could not be said to be the granting of a "new benefit." It is true, of course, that the announcement was made after the first election had been held; however, the Union had filed timely objections which the Regional Director was investigating at the time "and the possibility that the [Director] would direct a second election was indeed real." 15 As to the second contention, although the employees' pay rates are not in evidence, simple mathematics would show that all but the newest employee would derive a substantial increase as a result of the formula announced contrasted with the $15 evaluation placed upon the previous largess distributed by the Employer. u Ibid. 12 The amount of vacation pay was based upon a formula which took into consideration the employee's length 'of service with the Company. 19 It was stipulated and agreed that this was the first notification to employees that they would receive a week's paid vacation during Christmas. 14 Pearson testified that heretofore the Company had given a Christmas party for the employees and their families in which they had been given a turkey, candy , etc., where they had sung Christmas songs, and had one or two of the ministers in to read the Scripture. 15 See e.g. Northwest Engineering Company, 148 NLRB 1136. CRYSTAL LAKE BROOM WORKS 437 In short, I am of the opinion that this issue is controlled by the decision of the United States Supreme Court in N.L.R.B. v. Exchange Parts Company ,is where the Court, in similar circumstances , held that the timing of an announcement of benefits ' was calculated to impinge upon the freedom of choice of the employees in the election . Here, as in that case, the employer contended that the policy behind the increased benefits was made earlier but the timing of the announce- ment to the employees was made during the pendency of the representation case. Indeed, in my judgment the instant case is stronger than Exchange Parts in view of the massive antiunion campaign which had been engaged in by the Employer here, prior to the election . Accordingly, I find that by the announce- ment of the paid vacation on December 18, the Respondent has violated Section 8 (a)(1).17 4. The alleged promise of a wage increase The complaint alleges that Respondent violated Section 8(a)(1) and (5) by a speech to employees made on or about January 12, 1965, without notification to or consultation with the Union, in which wage increases were promised. This speech, made in connection with an announcement of the second election sched- uled for January 29, was a very short one (see General Counsel's Exhibit 63). The only reference to an increase in benefits was in paragraph 6 where Pearson stated: I have told you that you don't need a union here. All of you know that we will improve your pay and your benifits [sic] as quickly as busines [sic] conditions will allow. No one can ask for more. I cannot agree that by this inexact and indefinite language Pearson made an operative promise of an increase in wages or betterment of other working con- ditions. In my view, as in American Laundry Machinery Company,18 the quoted language, ... at most conveyed a vague suggestion of the possibility that at some inde- terminate date the Employer might evolve a formula whereby these benefits could be increased. This, we believe, falls short of the type of promise con- templated by the Act. Accordingly, I shall recommend that this allegation of the complaint be dismissed. 5. Concluding findings on Section 8(a) (1) allegations (a) Respecting the above-described speeches made and leaflets distributed by the Employer shortly prior to the election, such antiunion compaign appears strik- ingly similar to-indeed, seems to be patterned after-the campaign waged by the employer in the case of Ideal Baking Company of Tennessee, Inc., 143 NLRB 546. Thus many of the speeches and cartoons excerpted by the Board from the employ- er's campaign in that case strongly resemble-indeed, in many instances are word for word like-the literature published in the instant case.19 There, as here, one theme underlay the whole array of antiunion propaganda hurled at the employees: . the inevitability of a strike if the employees selected the Union as their bargaining representative, and the dire consequences of such a strike, namely, ensuing violence and the loss of jobs by the strikers20 There, as here, the employer's literature stressed the fact that if the company refused to fulfill the promises of the union, the only thing the union could do would be to call the employees out on strike; that in such event the employees would not get paid, would not be able to draw unemployment compensation, and could lose 19 375 U.S. 405 (1964). "See also Seneca Pla8tic8, Incorporated, 149 NLRB 320; Mantzowitz Manufacturing Corporation, 153 NLRB 1517. Inasmuch as Respondent was not obligated to bargain with the Union at the time of the announcement because, as hereinafter found, the Union did not represent a majority of Respondent's employees in an appropriate unit, I found that said announcement did not constitute a violation of Section 8(a) (5), and will therefore recommend that the allegation, to that extent, be dismissed. 18 107 NLRB 511, 513. 19 An explanatory factor may be that, as the Trial Examiner divined from the citation of the case in the Labor Relations Reference Manual, the same law firm representating the Employer in the instant case also represented Ideal. 20 Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, 547. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their jobs. It was brought home to the employees that strikes more often than not result in violence which causes damage to lives and property and that nothing could be gained therefrom. Employees were warned that the only way they could suc- cessfully avoid these unhappy consequences would be to vote "No" in the election. It is significant, respecting the similarity in the campaigns in this case and the Ideal Baking case, that the same cartoon was issued respecting strikers discarding picket signs and abandoning their strike . There, as here, when they came back to work, they were confronted with a "no vacancy" sign on the plant wall which exclaimed "Zing-it's too late!" There, as here, the employer did not once, in its propaganda, distinguish between the consequences of an economic and an unfair labor practice strike, and like the record in the Ideal Baking case, a careful scrutiny of the record here does not reveal one intimation to [Respondent 's] employees and their families that the selection of a collective -bargaining representative need not result in a strike, violence, trouble, or loss of jobs, but could result in a collective-bargaining agreement. This unremitting effort on the part of the Respondent to impress upon the employees the dangers inherent in their selection of the Union as their bar- gaining agent, particularly the danger of lob loss, followed lip by the baleful representation of the prospect of violence, physical injury, and property dam- age as the ordinary result of voting for the Union in the election was not an attempt to influence the employees by reason, but was an appeal to fear. Indeed, Respondent's entire preelection campaign was intimadatory in nature, and intended to convey the threat of job loss and physical violence should be [sic] the Union win the election.21 Thus, I conclude, as the Board did in Ideal, that the Respondent's entire pre- election, antiunion campaign, when considered as a whole , was intended to inter- fere with, restrain, and coerce its employees in the exercise of their rights guaran- teed by Section 7, and was, accordingly, violative of Section 8(a)(1) of the Act. I so find.22 (b) For reasons hereinabove stated, I find and conclude that Pearson's interro- gation of, and threat to, Howard constituted a violation of Section 8(a)(1), as did Higginbottom's threat to Palmer. Finally, as heretofore found, the announcement and granting of the paid vacation constituted a violation of Section 8(a)(1). C. The alleged refusal to bargain The complaint alleges that at all times since on or about September 8, 1964, the Union has represented a majority of the employees in the [production and mainte- nance] unit described in the complaint; that on or about said date the Union requested Respondent to bargain collectively with it concerning wages, hours, and working conditions of the employees in the unit; and that all times since said date Respondent has unlawfully refused to bargain. Respondent admits the appropiateness of the unit, but denies that it was obligated to bargain since: (1) the Union did not claim a "majority" in its request;23 (2) the Union did not, in fact, represent an uncoerced majority of employees in the unit at the time of the request; and (3) even if the Union did have such a major- ity, Respondent had a good faith doubt of it. Critical, therefore, to the sustaining of General Counsel's burden on this issue is the proof of an uncoerced majority. As above noted, it appears that on Septem- ber 8 (the date of the request), there were 88 employees in the unit (General Counsel's Exhibit 7). Accordingly, 45 valid authorization cards were required to be produced to prove a majority. General Counsel proffered 48 such cards into evidence at the hearing (General Counsel's Exhibit 11 through 58). It is reasonably certain that as of September 8, the Union was- in possession of at least 43 cards, since that was the number mailed by the Union to accompany its petition sent to the New Orleans Region.24 Thus all cards in evidence except 21 143 NLRB 532. 22 See Texas Industrse8, Inc., 139 NLRB 365; of Texas Boot Manufacturing Company, Inc, 143 NLRB 264. 23 This point has been ' discussed hereinabove [ subsection A], and - decided adversely to Respondent. 2% Jenkins testified that the petition and cards were mailed from Birmingham on September 8 CRYSTAL LAKE BROOM WORKS 439 General Counsel's Exhibits 35 (D. C. Tolver), 37 (Murphy Lee, Jr.), 38 (W. J. Whetstone), 42 (Thomas Steel, Jr.), and 43 (Joe Brown, Jr.) bear the New Orleans Regional Office stamp indicating they were received on the morning of September 10. Organizer Jenkins candidly acknowledged that he was not sure whether the above five (5) cards were in his possession on that date and inadvertently not sent to New Orleans, or whether he picked them up later. Accordingly, it is necessary to inquire into the particular circumstances regarding the signing of these cards, par- ticularly as to the time of signing: D. C. Tolver (General Counsel's Exhibit 35): Tolver's card is dated "8/30/64." He testified credibly that he signed it for employee-organizer Felton Davis at the former's home on the date appearing on the card. He returned it to Davis the same date. I find that Tolver signed and delivered the card prior to the critical time, that it is a valid authorization, and should be counted as an element in the Union's claim. Murphy Lee, Jr. (General Counsel's Exhibit 37): Lee's card is dated September 8, 1964. He testified that he received the card from employee-organizer Charlie Howard, and that he signed it and filled in the date himself, although he had no independent recollection of the date, except that he knew "it was somewhere [sic] after Labor Day," 25 - Nothing adverse appearing, I would assume that the date placed upon the card is the correct one. Accordingly, based upon the foregoing credible testimony, I would find that Lee signed in apt time,26 but I reject his card as an element in the majority because I find that he was a temporary employee. Thus the evidence shows that he was employed a week or two before he signed the card as a handyman, i.e. cutting grass, loading and unloading trucks, etc. He was told that when he completed that job, "maybe" he could be worked into the regular force. However, Lee testified that he told management that he was taking the job as a temporary stop-gap since he was living in Jacksonville, Florida, and had a regular job there. He quit on September 25. Therefore, I find him to be a tem- porary employee, and reject General Counsel's Exhibit 37 as constituting proof of majority status. W. J. Whetstone (General Counsel's Exhibit 38): This card was identified and introduced through Felton Davis since Whetstone did not testify.27 Davis said Whetstone signed the card at the plant during the noon lunch period. It is dated "9/8/64," which date appears in the same handwriting as the name. Davis further testified that after signing, Whetstone returned it to him (Davis) who turned it over to Jenkins the following Saturday. Therefore, Jenkins could not have had the card in his possession in Birmingham on September 8. However, it is clear that on that date, and by the time the request was made by Parker, Whetstone had signed the card and given up his dominion and control over it, which was never regained. Under all the circumstances, I conclude that it is a valid and timely designation which should be counted 28 Thomas Steel, Jr. (General Counsel's Exhibit 42): This employee testified that he signed the card, but that Felton Davis dated it. Davis agreed that the date appears to be "9/11/64." It so appears to me. On the other hand, the witness credibly testified that he was certain that he signed the card on the first day he was employed by,the Company, and while he could not recall the date (he thought it was in August), Respondent conceded that Steel-was employed on September 8. Under all circumstances, I conclude that Davis simply made an error when he placed the date on the card, and that it should be counted. Joe Brown, Jr. (General Counsel's Exhibit 43): This employee testified that he signed the card at the plant, and dated it the day he signed it. However, he had .no independent recollection of that date. He testified that he thought he signed it about 3 weeks after he started working there„which he placed in September, "after school started in 1964." 25 Labor Day fell on September 7, 1964. 26 Query whether his card should be counted in the Union's majority since it could not have been in the custody of Parker, Jenkins, or any other 'union agent at the time of the request-Lee being in Autaugaville and they being in Birmingham at the time. This issue will be discussed infra, regarding the card of W. J: Whetstone. n-He had since left Respondent's employ, is living in Massachusetts, and would not respond to a subpena. 28 Cf. Scobell Chemical Company, Inc.,, 121, NLRB 1130, enfd. 267 F.2d 922 ( C.A. 2). 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The date on the card appears to be either' September 2 or'7, 1964. However, such appears to have been written over- an erasure. Thus, in view of the witnesses' testimony that he did not sign the card` until he had been working for 3 _weeks after the beginning of September, 1 find that his card was not signed until a date substantially subsequent to the demand date, and therefore should not be counted. Accordingly, of the five cards not bearing a New Orleans Regional Office stamp, I would count three and reject two. This would still leave a majority (46 cards out of 88 employees); however, I reject the following additional cards for the reasons cited: William Stoudinire (General Counsel's Exhibit 29) • This employees signed a card at the request of Felton Davis. He testified that Davis said the only purpose of the signing of the card would be that if enough employees signed, a union man "will come down and talk with you" Stoudmire did not read the card nor did Davis advise him that he was joining a union by signing the card.29 Accordingly, I find this card not to be an effective designation of the Union. See Jas. H. Matthews & Co., 149 NLRB 16 (re employee White). Fannie Robinson (General Counsel's Exhibit 41) and Elijah Matthews (General Counsel's Exhibit 24): The facts surrounding the signing of the cards of these two employees are similar to those respecting Stoudmire, and I reach a similar result. Thus, both were "signed up" by Davis; neither read the card; both testified that Davis told them that the purpose of the card was to evidence enough interest to entice the union man to come down and talk to them (as distinguished from authorizing the union man to talk to the Company on their behalf). I find that these two cards are not effective designations of the Union. Having rejected three additional cards, the number of valid designations is reduced to 43, which, of course, is not a majority of 88. I therefore find and conclude that at the time of demand for bargaining the Union did not represent a majority of employees in the unit, and, therefore, the Employer was not obliged to bargain with it. I will, accordingly, recommend that the 8(a)(5) allegations of the complaint be dismissed.39 II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with the operations of the Respondent, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. III THE REMEDY Having found that the Respondent engaged in certain unfair labor practices violating Section 8(a) (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action which is designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of the Act. 29 The finding Is based on the credited testimony of Stoudmire . Davis admitted telling all employees that If enough of them signed , the "union would come down and look into the situation " Davis did not testify that be told Stoudmire that a purpose of signing the card would be to effect union representation. so Trend Mills, Inc., 154 NLRB 143. In addition to the rejection of the foregoing cards, I have reservations as to the validity of certain of the other cards due to the discrepancies in the testimony respecting the place , time, and circumstances of the signing. For ex- ample, respecting General Counsel 's Exhibit 16, Davis testified that James Mims signed the card 'himself, "both at the top and bottom" ; yet a glance at the card shows entirely dif- ferent writings, as Davis later admitted. See also, to the same effect, Davis' testimony respecting General Counsel's Exhibits 19, 25, 28, and 29. However, in view of the signer's testimony : (1) that he signed the card which clearly designated the Union as the collective- bargaining representative, and (2 ) the lapse of time between the events and the hearing (approximately 9 months ), I would not reject the cards on the basis of these relatively minor discrepancies CRYSTAL LAKE BROOM WORKS 441 2. By threatening employees with adverse economic consequences, including job loss, in the event they selected the Union as their collective-bargaining agent, and by threatening that it would move its plant should they'engage in activities on behalf of the Union or select the Union as their collective-bargaining agent, and by coercively interrogating employees regarding their union activities and senti- ments, and by announcing and granting benefits to employees to dissuade them from adherence to the Union, Respondent thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and has engaged in, and is engaging in, unfair labor practices affecting commerce, within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 3. The Union was not at any time mentioned in the complaint as, the freely chosen collective-bargaining representative of a majority of Respondent's employ- ees in an appropriate unit, and was not the exclusive representative of employees in such an appropriate unit within the meaning of Section 9(a) of the Act. 4. Respondent has not at any time mentioned in the complaint failed, or refused to bargain with the Union in violation of the Act, or engaged in any coercive conduct toward its employees except as found above. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, I recommend that James A. Pearson, Rufus S. Pearson and Mrs. E. W. Pearson d/b/a Crystal Lake Broom Works, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with adverse economic consequences, including job loss, in the event they select the Union as their collective-bargaining agent; (b) Threatening employees with moving the plant should they engage in activi- ties on behalf of the Union or select the Union as their collective-bargaining agent; (c) Coercively interrogating employees regarding their union membership, activities, and sentiments. (d) Announcing' and/or granting benefits to employees to dissuade them from becoming members of the Union or engaging in activities on its behalf. (e) In any like or similar manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the Union herein or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection as -guaranteed in Section 7 of the Act, or to refrain from any and all such activity. 2.' Take the following affirmative action which is designed to effectuate the policies of the Act. (a) Post at its Autaugaville, Alabama, plant copies of the attached notice marked "Appendix." 31 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by its authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicious places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply therewith.32 811n the event that this Recommended Order is 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 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." 2 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 110, in writing, within 10 days from the date of receipt of this Order , what steps the Respondent has taken to comply herewith." 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it charges Respondent with an unlawful refusal to bargain or with any coercive conduct other than that found in this Decision. 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, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with job loss if they select Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organi- zation, as their collective-bargaining agent. WE WILL NOT threaten our employees with moving the plant should they join or engage in activities on behalf of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. WE WILL NOT coercively interrogate our employees concerning their mem- bership in or activities on behalf of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. WE WILL NOT announce or grant a paid vacation or any other benefits to our employees to dissuade them from becoming or remaining members of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. WE WILL NOT, in any like or similar manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Sec- tion 7 of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above Union or any other labor organization. JAMES A. PEARSON, RUFUS S. PEARSON AND MRS. E. W. PEARSON, D/B/A CRYSTAL LAKE BROOM WORKS, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele- phone 876-3311, Extension 5357. Knox Homes Corporation and Truckdrivers and Helpers Local Union No. 728 and Knox Homes Corporation and Truckdrivers and Helpers Local Union No. 728, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases 10-CA-5974, 6058, and 10-RC-6102. June 15,1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On March 18, 1966, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respond- 159 NLRB No. 40.