Genesco

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hobco Mfg. Co., an Operating Division of Genesco and International Ladies' Garment Workers' Union , AFL-CIO. Case 10-RC-6449. May 22,1967 DECISION ON REVIEW AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Pursuant to a Decision and Direction of Election issued on November 10, 1965, by the Regional Director for Region 10 of the National Labor Relations Board, an election was conducted under his supervision on December 22, 1965, among the employees in the unit found appropriate.' At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 111 eligible voters, 110 cast ballots, of which 60 were for, and 49 were against, Petitioner, with 1 ballot challenged. Thereafter, the Employer filed timely objections to the results of the election. Pursuant to the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director conducted an investigation and, on February 18, 1966, issued and served on the parties his supplemental decision, order, and direction of second election. He found that objection 1, to the extent it involved the Petitioner's alleged reproduction of the Board's official ballot in Petitioner's handbill, and objection 5, which involved the failure of the Petitioner to identify itself as the sponsor of certain campaign propaganda, each constituted grounds for setting aside the election. The Regional Director therefore sustained these objections, ordered that the election conducted on December 22, 1965, be set aside, and directed that a second election be conducted. He further found that the remaining portions of objection 1 and objections 2, 3, and 4 were without merit and overruled them. Thereafter, the Petitioner filed with the Board a timely request for review of the Regional Director's supplemental decision with respect to objection 1, to the extent it involved the alleged reproduction of a ballot, and to objection 5. The Employer filed a timely request for review of the Regional Director's finding that the alleged racial propaganda involved in objection 2 did not constitute a basis for setting aside the election. i All production and maintenance employees of the Employer at its Hobson City, Alabama, plant, including the plant clerical employees and trainers, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act 2 Many of the Employer's exceptions are to the Trial On April 1, 1966, the Board granted the Petitioner's request for review and reserved consideration of the issues raised by the Employer's request for review. Upon grant of review, the Employer filed a brief. On May 31, 1966, the Board issued its Decision on Review and Order in which it overruled objections 1 and 5, found that objection 2 raised substantial and material issues which could best be resolved by a hearing, and ordered that a hearing be held before a Trial Examiner for the purpose of taking testimony to resolve the issues raised by objection 2 and the Employer's request for review of the Regional Director's supplemental decision, order, and direction of second election. Pursuant to the Board's Order, a hearing was held on July 19, 20, and 21, 1966, before David S. Davidson, Trial Examiner. All parties participated and were given full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the issues. On November 28, 1966, the Trial Examiner issued and duly served on the parties his report on objections, hereto attached, wherein he recommended the Employer's objection 2 be overruled and that the Petitioner be certified as the bargaining representative of the employees in the unit found appropriate. Thereafter the Employer filed exceptions and a supporting brief; the Petitioner filed a brief in support of the Trial Examiner's report on objections. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's report on objections, the Employer's exceptions2 thereto and brief, the Petitioner's brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 1. We agree, for the reasons stated by the Trial Examiner, that the Petitioner's racial propaganda in this case was not designed to inflame racial hatred, but rather was designed to encourage racial economic betterment through concerted activity, Examiner's credibility resolutions It is the Board's policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 164 NLRB No. 118 HOBCO MFG. CO. 863 and therefore may not properly be considered as a basis for setting aside the election.3 2. With respect to the rumor that the Employer would replace the Negro employees with white employees if the Petitioner lost the election, we do not believe that it was sufficiently widespread among the employees to warrant setting the election aside. Accordingly, we overrule the Employer's objections to the election. As a tally of the ballots indicates that a majority of the employees voted for the Union, we shall certify it as the exclusive bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that the International Ladies' Garment Workers' Union , AFL-CIO, has been designated and selected by a majority of the employees in the unit found appropriate in footnote 1, above, as their representative for the purposes of collective bargaining , and that , pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all employees in such unit for purposes of collective bargaining with respect to rates of pay , wages, hours of employment, and other terms and conditions of employment. second election, and the Employer requested review of the Regional Director's decision to the extent that it overruled the Employer's second objection. By order dated April 1, 1966, the Board granted the Union's request for review and reserved consideration of the issues raised by the Employer's request for review. Thereafter, on May 31, 1966, the Board issued its Decision on Review and Order. In it the Board reversed the Regional Director's disposition of the first and fifth objections and overruled them, but ordered that a hearing be held before a Trial Examiner to be designated by the Chief Trial Examiner "for the purpose of taking testimony to resolve the issues raised by objection 2 and the Employer's request for review of the Regional Director's Supplemental Decision, Order, and Direction of Second Election." The Board's Order provided further that upon conclusion of the hearing the designated Trial Examiner "shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said issues." Pursuant to the Board's Order, a hearing was held at Anniston, Alabama, on July 19, 20, and 21, 1966. All parties appeared and were afforded full opportunity to be heard, to adduce relevant evidence, and to examine and cross-examine witnesses. At the conclusion of the hearing the parties were given leave to file briefs, which were received from the Employer and Petitioner. I Upon the entire record and from my observation of the witnesses, I make the following: 1. FINDINGS OF FACT 3 See The Baltimore Luggage Company, 162 NLRB 1230. TRIAL EXAMINER'S REPORT ON OBJECTIONS STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Pursuant to a decision and direction of election in this case by the Regional Director for Region 10, an election by secret ballot was conducted on December 22, 1965, among the employees in the unit found appropriate therein to determine whether or not they wished to be represented by Petitioner. The results of the election showed that of approximately 111 eligible voters, 60 cast valid votes for, and 49 cast valid votes against the Union. One challenged ballot was cast, and there were no void ballots. On December 29, 1965, the Employer filed timely objections to the election. Following an investigation, on February 18, 1966, the Regional Director issued his supplemental decision, order, and direction of second election. In it the Regional Director found that the Employer's first and fifth objections raised substantial and material issues with respect to conduct affecting the results of the election, and he ordered that the election be set aside and a second election conducted. The Regional Director found that the remaining objections filed by the Employer were without merit and overruled them. Thereafter, Petitioner requested review of the Regional Director's supplemental decision, order, and direction of ' At the conclusion of the hearing, pursuant to the agreement of the parties at the hearing , a stipulation relating to Petitioner's Exh 2 was submitted The stipulation is received in evidence as part of Petitioner's Exh 2 to which it is attached After the close A. Introduction The Employer's second objection to the election is as follows: For the purpose of improperly and unlawfully influencing the outcome of the election, the Union, its agents, representatives and others on its behalf, circulated false and misleading information about the employer and other material facts, and injected extraneous issues designed to instill racial discrimination and hatred into its organizing campaign. Hobson City, Alabama, is a city inhabited entirely by Negroes a few miles from Anniston , Alabama. Until 1964, Hobson City had no industry . At that time, the Employer opened its plant in Hobson City to manufacture women's undergarments. At all times material since then the plant has had a work force composed entirely of Negroes. Approximately 25 of the more than 100 employees employed by the Employer reside in Hobson City, and the remainder come from Anniston and the surrounding area. In June 1965, the Union began an organizing campaign at the Hobson City plant. It first sent to the area one organizer and later two more, all Negroes, to contact the employees in the plant and persuade them to sign authorization cards and vote for the Union . With the exception of the limited participation of Ben Dansavage, organizational coordinator for the Union's Southeast Region, the organizing campaign was conducted entirely of the hearing both Employer and Petitioner filed motions to correct the transcript of the hearing I have ruled on these motions by separate order 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Negroes. In the course of the campaign the Union asked for and received organizing assistance from leaders of local civil rights organizations, the Southern Christian Leadership Conference in Atlanta, and from officials of other unions in the area. B. The Participation of Civil Rights Leaders in the Campaign On two occasions in December 1965, before the election, Rev. Joseph E. Boone, of Atlanta, Georgia, came to Anniston and Hobson City, to address gatherings to which the Employer's employees were invited. Rev. Boone is a member of the staff of the Southern Christian Leadership Conference, referred to hereafter as the SCLC, and is an assistant to Dr. Martin Luther King. He works primarily in connection with an effort known as Operation Breadbasket, which has as its purpose the economic improvement of deprived Negroes. He also is a representative of the SCLC in an alliance formed between it and certain unions, including the International Ladies' Garment Workers' Union, which work together to pursue similar goals by helping unions win elections. Prior to 1959, Rev. Boone had lived in Anniston, where he served as pastor of a church and as president of the Calhoun County Voters Registration Group, a civil rights oriented organization which was the predecessor to the Calhoun County Improvement Association. One of the meetings which Rev. Boone was asked to address was a meeting of the Calhoun County Improvement Association, referred to hereafter as the CCIA, which was held on December 12, 1965, in Hobson City at the Rising Star Methodist Church. Notices of this meeting were distributed to the employees of the Employer by Petitioner. Rev. Boone's second visit to Anniston in connection with the campaign was on December 21, 1965, the night before the election, to address an assembly of employees at a party held by Petitioner at Club 35 in Anniston. Insofar as the record shows, Rev. Boone's appearances at the meeting and the party constituted the full extent of his activity in this campaign. The content of his remarks on these occasions is set forth separately below. Petitioner also requested and received assistance from Dr. Gordon A. Rodgers, Jr., a dentist prominent in civil rights activities in Anniston. Dr. Rodgers is president of the Alabama State Coordinating Association for Registration and Voting, president of the Anniston Calhoun County Voters League, and a vice president of the CCIA. He is also a member of the NAACP, and has served as president of the Calhoun County branch and of the State chapter. Dr. Rodgers spoke by invitation of Petitioner at a union meeting held on December 8, 1965, and at the party held on December 21, 1965, at Club 35. Rev. N. Q. Reynolds, an active minister in Anniston, is president of the CCIA and a member of the Human Relations Council appointed by the City of Anniston. Rev. Reynolds presided at and spoke at the December 12 meeting of the CCIA. I Even before this meeting, about a month or two before the election, Striplin was asked by the Employer's plant manager if he knew any persons who would like to work at the plant As a result, he visited some prospective employees at their homes and in talking to some who subsequently went to work at the plant, he urged them to vote against the Union in the election 9 The ad pointed out that the citizens of Hobson City had worked long and hard to attract industry to Hobson City and that In addition to their participation in the above-described meeting, Dr Rodgers and Rev. Reynolds supplied to Petitioner statements for incorporation in a full-page ad placed in the Anniston Star on Sunday, December 19, by the Union. The ad, in general, urged the Hobco employees to vote for the Union in the election. Their statements were: The Anniston Calhoun County Voters' League thinks that the working man has made great strides through organization; therefore, we endorse those efforts. Dr. Gordon A. Rodgers President The Calhoun County Improvement Association, Inc., is in favor of organized labor and believes that it has shared in a most favorable and forceful manner in the advancement of labor . We therefore endorse the effort of the International Ladies' Garment Workers' Union, AFL-CIO. N. G. Reynolds President Other prominent Negroes who had no direct connection with Petitioner or the plant but participated in the campaign were D. D. Glover and Grant Oden . Glover is president of Local 414, International Molders and Allied Workers' Union , AFL-CIO , and a vice president of the Northern District of the Alabama Labor Council AFL-CIO. Glover and other officers of his local furnished a statement supporting Petitioner for its December 19 ad. In addition , he made a number of calls to employees' homes with Petitioner's representatives and spoke at the December 21 party. Oden, a member of another union and treasurer of the Calhoun County Improvement Association, was present at the December 12 meeting of the Association and at the December 21 party. According to one witness , Oden made a brief statement at the party in support of the Petitioner. Not all the Negro leadership in the area, however, supported the Union . J. R. Striplin , mayor of Hobson City, attended the December 12 meeting of the CCIA and, as set forth below, spoke in opposition to organization of the plant . 2 After Petitioner's ad appeared in the Anniston Star on December 19, containing the endorsements of the Calhoun County Voters League and the CCIA, Mayor Striplin was asked by the editor of the paper if he would like to make a reply. Two days later, a full-page ad appeared in the paper signed by Mayor Striplin and the Council for Hobson City, all of whom are Negroes , urging the employees to reject the Union.3 C. The December 8 Union Meeting On December 8, Petitioner held a special meeting at the hall of Local 414 of the Molders' Union. Notices for the meeting, which were distributed at the plant by Petitioner, announced that Dr. Rodgers would be the keynote the Union had done nothing to help Hobson City In obvious reference to the civil rights leaders of the area, the ad stated, "There are some people of Calhoun County who have taken it upon themselves to tell the workers of our GENESCO plant to vote in a union Where were these people and the Union when we were busy trying to get GENESCO to build a plant in Hobson City" HOBCO MFG. CO. 865 speaker.4 About nine employees attended the December 8 meeting. To the extent that the evidence indicates, Dr. Rodgers' remarks concerned the reasons for the development of the labor movement. There is no evidence that Dr. Rodgers or anyone else touched on any racial or civil rights matters at this meeting. D. The December 12 Meeting of the Calhoun County Improvement Association On December 12, CCIA held a meeting in Hobson City at the Rising Star Methodist Church." Approximately 75 to 100 persons attended , an undisclosed number of whom were employees of Hobson .6 Rev. Boone was the principal speaker at the meeting and was introduced by Rev. Reynolds. Rev. Boone spoke for about half an hour. His speech covered a number of topics of general interest in the civil rights field, including voter registration, poverty, employment, Operation Breadbasket, educational facilities, and housing. Near the end of his speech Rev. Boone mentioned the alliance of SCLC with a number of unions and the organizing campaign at Hobco. He urged that Hobco be unionized. According to Mayor Striplin, who was present at the meeting, in the course of Rev. Boone's remarks about Hobco he said "that any plants that would hire Negroes and so forth, you might know they are trying to get by paying cheap wages."' Mayor Striplin also testified that after Rev. Boone finished his remarks, Rev. Reynolds spoke in favor of the Union and said "that any company with all Negro employees were trying to get out for cheap labor, and this is what they are trying to do, and he didn't go along with that." Rev. Reynolds and Rev. Boone each denied making the statements attributed to them.8 All three witnesses who testified with respect to this meeting at times displayed less than clear recollection of the events, perhaps understandably in view of the time which elapsed between the meeting and the hearing. Rev. Boone in particular is a busy man who speaks on numerous occasions as spokesman for Operation Breadbasket to similar groups on similar themes. Rev. Boone conceded that he held the opinion embodied in the statement which Mayor Striplin attributed to him and that on other occasions he had stated it in connection with the Scripto plant in Atlanta. Rev. Boone also conceded that he knew that the employees of Hobco were all Negroes. Rev. Reynolds could not recall what Rev. Boone said with respect to Hobco but remembered that Rev. Boone referred to the Scripto plant in his remarks. Griggs and Glover who were identified as present at this meeting and might have been questioned with respect to the statements made at this meeting were called as witnesses by the Union but not questioned about it. Although weaknesses were apparent in the testimony of Mayor Striplin as well," I am presuaded that he did not invent the remarks which he attributed to Rev. Boone at the December 12 meeting. Although it may well have faded from Rev. Boone's memory, I find that at this meeting he said that any company that employed all Negroes was trying to get away with paying cheap wages.10 E. The December 21 Party On December 21, the Union held a party at Club 35, a restaurant in Anniston, to which employees of Hobco and guests were invited. Alcoholic beverages were served. From 100 to 130 persons attended of whom about 65 or 70 were employees at Hobco. Late in the evening speeches in support of the Union were made by Glover, Dr. Rodgers, Rev. Boone, who came to Anniston for the meeting, and by Dansavage. Much of what was said is undisputed. Rev. Boone introduced the other speakers and spoke last.]' Glover spoke for a few minutes about the advantages of organizing, the future of organizing in the area if Hobco was organized, and what the employees in the plant where he worked were paid before they had a union as compared to their present wages. Dr. Rodgers told the employees that they were privileged to be able to vote and compared their State to that of his foreparents who he said were slaves, worked for nothing all their lives, and had no opportunity to organize. He told them that the next day was their day of decision and ended his remarks by leading the group in singing, "Which Side are You on." Rev. Boone covered a number of the same topics that he mentioned in his earlier speech at the CCIA meeting on December 12, including education, unemployment, and poverty. He told the employees that the University of " This same notice also informed the employees of the CCIA meeting scheduled for December 12 with Rev Boone as keynote speaker 'This was a regular meeting. It appears that the CCIA meetings were held at various churches around Anniston and Calhoun County. As I believe it immaterial to the issues herein, I find it unnecessary to resolve a conflict in the testimony as to whether CCIA had ever met previously in Hobson City 6 No accurate estimate of the number of the employees present was given by any witness However , according to Union Representative Griggs, who attended but had only been in the area a short time, he recognized about five employees of Hobco in the audience He testified 80 percent of the audience were male while 95 percent of the employees in the plant are female In addition to the December 8 notice, a second notice of this meeting was delivered to the employees at the plant by Petitioner on December 10 ° Mayor Stnplm testified that before this remark , Rev Boone said that anyone who was working for $1 25 was still living in poverty and then turned to the Hobco campaign , pointing out that Hobco employees were making $ 1.25 an hour and were still living in poverty. These statements were related to Federal guidelines defining poverty 8 Striphn also testified without contradiction that after the close of the meeting a small discussion started between Striplin and several others over the union campaign at Hobco in which he said that the plant had only been there 6 months and that if it was organized at that time there was a question whether the plant would stay or go Striplin said that the people of Hobson City did not want it to go Rev Reynolds commented that if it would leave for that reason , they should let it go Rev Reynolds and Rev Boone .testified that Mayor Striplin also spoke to this effect from the floor to the assembled group before the meeting adjourned " Mayor Striplin was evasive in response to questions about the December 21 newspaper ad which he signed , and his testimony generally with respect to his own activities in connection with the campaign impressed me as not completely candid 10 In this connection, I have concluded that all three witnesses were more accurate in their testimony as to what they recalled than they were in their denials I thus find that Rev Reynolds made the remark attributed to him by Striplin , and that Striplin expressed his opposition to the Union to the assembled group before the meeting adjourned as well as thereafter to a smaller group " Dansavage spoke only briefly to urge a "Yes" vote the next day 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alabama and Auburn were open and expensive and that they should try to break the barrier by sending their children there. In his speech Rev. Boone pointed out their need for unity and sacrifices . He said that the late Medgar Evers had made a sacrifice , that he had chosen to stay in Mississippi when he could have left, and that when he was shot in the back, he fell forward . He told the employees that Evers was a man who stood up for his rights and believed in justice and that the employees should do the same in the coming election. During his speech , Rev. Boone read a copy of a telegram from Martin Luther King, copies of which were distributed to the employees at the meeting. The telegram referred to prior joint efforts of the Negro ministers of Atlanta and the SCLC with the Chemical Workers' Union to win a victory in "a struggle to obtain better wages , working conditions, and human dignity" for more than 700 Negro women who had been paid a maximum of $1.30 an hour. The telegram included: ONE OF THE PROBLEMS THAT CONFRONTS AMERICA TODAY IS THE LOW POVERTY LEVEL TO WHICH SO MANY OF OUR NEGRO CITIZENS ARE SUBJECTED. THE CHURCH AND COMMUNITY CAN NO LONGER REMAIN SILENT WHILE THE INJUSTICE OF ECONOMIC DEPRIVATION, HUMILIATION, AND EXPLOITATION FACE A LARGE SEGMENT OF AMERICA'S PEOPLE. I THEREFORE APPEAL TO FREEDOM-LOVING CITIZENS OF CALHOUN COUNTY, ALABAMA, TO JOIN WITH THESE FINE WOMEN AND THE INTERNATIONAL LADIES' GARMENT WORKERS' UNION IN THEIR EFFORTS TO OBTAIN THE GOALS OF BETTER WORKING CONDITIONS, BETTER WAGES, AND HUMAN DIGNITY. Boone explained that Dr. King had wanted to be present with the employees that night but had been prevented from coming by the illness of his father. In the course of his remarks, Boone also stated that President Johnson and the Federal Government had set an income of $3,000 a year as a guideline for determining whether a family was in poverty. He asked for a show of hands from those employees present to indicate whether any there made that much or more, no hands were raised. At some point during the meeting, Rev. Boone led the employees in singing "We Shall Overcome." Four employees, called as witnesses by the Employer, testified that additional statements were made by the speakers. Employee Junnie Hill testified that Dr. Rodgers told the employees that "we should wake up and stick together and not let white people make a fool of us." According to Mrs. Hill, he also said, "they would pat us on our back and lie to us." Employee Elizabeth Graham similarly testified that Dr. Rodgers said that "the white man would tell us lies and pat us on the back and smile in our faces." She testified further that Rev. Boone in his speech said that the colored people had been made fools of by the white people. Employee Smith Rowe, Jr., testified that Dr. Rodgers said that the employees were "nothing but fools for working for poor white trash" and that they should be getting paid more. Employee Patricia Harris testified that Dr. Rodgers told the employees that it was time for the Negro employees to wake up and not let the white people make fools of them. According to Mrs. Harris, Rodgers also said that "they will tell you lies and grin in your face or pat you on the back." Rev. Boone and Dr. Rodgers each denied making at any time the statements attributed to them by these witnesses.12 Glover testified that he might have listened some but not wholeheartedly to the other speakers and that he did not hear anyone say anything about anyone making a fool out of anyone else. Union Representative Mason London testified that he did not hear the other speakers too well, did not hear any reference to race at the party, and did not hear "white" used as a racial description. Union Representative Griggs, who was present at the party and testified with respect to other matters, was not asked about the speeches at the party. The testimony of the four employee witnesses indicates that all four were referring to a single statement or sequence of statements made by Dr. Rodgers and that variances in their testimony as to the content of Dr. Rodgers' remarks are attributable to the inaccuracies of perception, recollection, and articulation that to some extent affect all testimony and particularly testimony relating to oral statements of another at some point in the past. Again, however, as in the case of Mayor Striplin, their testimony did not impress me as invented, and I am satisfied that the common thread of their testimony had basis in fact. Accordingly, I find that in the course of his remarks, Dr. Rodgers told the employees that whites would lie to them, smile at them, and pat them on their backs, and that they should stick together and not let whites make fools of them. I do not find, however, that Dr. Rodgers used the term "poor white trash," or that Rev. Boone made any remarks similar to those that I have found were made by Dr. Rodgers. Employee Smith Rowe was not corroborated by any other witness. Patricia Harris, who testified after Rowe, did not hear any speaker use the words "poor white trash" and the two other witnesses, who testified before Rowe, did not mention the use of these words. Elizabeth Graham was the only witness who attributed any of the statements at issue to Rev. Boone, and I am persuaded that she was mistaken in her recollection. F. The Statements Attributed to the Union Organizers and Related Rumors Four employees testified to statements made by union organizers while visiting employees at their homes during the campaign. Dorothy Cunningham testified that she was visited at her home by Mason London and a minister whom she could not name. According to her testimony, London urged her to sign a card for the Union and told her "we really wasn't being treated fair and if they hired some whites that we would be treated more fairly, and that we would get more pay." She added that he said that the Company "didn't want to hire any because if they hired them that our paychecks would have to go up because the whites wouldn't work for what we were working for." Mrs. Cunningham on direct examination did not testify as to the date of this incident. On cross-examination, she placed it in September or October. She also testified that it was during the fall of the year when they first started trying to get the Union in. She ultimately testified that she did not know whether it was in late July, August, September, or October, that it was around the time her 11 Rev Boone also testified that he could not recall what the other speakers said at the party HOBCO MFG. CO. first child started to school on September 6, 1965, but she could not say whether it was before or after her child started school. She also testified that London visited her twice. Helen Copeland testified that London made two visits to her home a few days apart in mid-November, shortly after she was employed at the plant. She testified that on both occasions, London urged her to join the Union and said that by April the Employer would hire some white employees and that they would be paid higher wages than the Negro girls but that if the Union got in, they would all be paid equally. According to Mrs. Copeland, on the second visit someone who looked like Union Organizer Griggs accompanied London Mrs. Copeland could not estimate how long London stayed on either of his visits but stated that she was busy on both occasions with house chores. She testified further that until London's visits she had heard no rumor about whites being hired in April. During the week which followed, however, she heard a similar rumor from one other girl in the plant who had not been there any length of time,'and thereafter she heard no further reference to the hiring of whites. Mary Alice Coleman testified that shortly after she started work, also in November, she was visited by a man who said he was from the Union and asked to talk to her, but she refused to talk at that time. About a week or two later, someone else came and identified himself as from the Union but did not give his name. She said that she did not want to talk about it but, according to her testimony, he said, "I want to let you in on what is going to happen after the first of the year.... In the first place, they have no intention of keeping all the new girls they have hired. ... After the first of the year, they are going to put in a weaving machine and hire all whites and they are going to let all the Negroes go and they are supposed to be making at least $1.65 an hour and that is why we need a union." She testified further that he also said that the employer could not fire the girls who were there if the Union was there. On her direct examination Mrs. Coleman did not name her visitor. On cross-examination, Mrs. Coleman testified that she did not know his name, but when asked if she saw him in the hearing room, pointed to Griggs, adding that he had glasses on at the time of the visit. Mrs. Coleman said that she talked to her supervisor and Mrs. Copeland about the visit after it occurred. Anna Belle Abernathy testified that about a week before the election she was visited by a man whose first name was Clarence.13 According to Mrs. Abernathy, he asked her if she heard anyone say that they were going to hire all white girls at the plant and that they (the Negro women) would be out. She said she had not. He told her to try to get all the people she could at the plant to vote for the Union so that they would not be out because the Union would not let all white girls be hired. Mrs. Abernathy 13 Mrs Abernathy testified that she could not remember his last name The Union had an organizer in the campaign named Clarence Loftin 14 With respect to Loftin, her affidavit stated, "About a week before the election Clarence Loftin, the union organizer visited me in my home And he said if the Union wins we will see that you get more than $1 25 an hour, and more paid holidays and more vacation time " Her affidavit was taken on January 19, 1966, about a month after the election 15 London also testified that he made a few house calls with Rev Davis, a minister in Hobson City, but that these visits were all at the homes of employees who lived in Hobson City Glover testified that he accompanied London on two visits to Mrs Cunningham's home 867 testified that she believed the man stayed more than an hour. He did not talk too much about the Union, but was interested in going out with her. In an affidavit given to the Board agent who investigated the objections, Mrs. Abernathy mentioned Loftin's visit to her home but did not mention the statement which she attributed to Loftin in her testimony. 14 Her affidavit also stated, however, "I heard a rumor from a girl who no longer works here to the effect that Genesco was going to hire white girls and they would make more money than the Negro girls." Mrs. Abernathy testified that this incident occurred after the election. She conceded that the investigator asked her where she heard the rumor and that she did not tell him that she had heard it from Loftin, explaining that Loftin had not called it a rumor but had merely asked her if she had heard it and that she did not think to tell the investigator she had heard it from Loftin. However, she also conceded that the investigator asked her if a union man had been to her house and what Loftin had said to her. She also conceded that he wrote down everything she told him in the statement which she signed. Union Organizers London and Griggs denied that they made the statements attributed to them or similar statements or that they made any reference to race in any of the house calls. D. D. Glover, an official of another union in Anniston, testified that he accompanied London on a number of house calls and denied that London made the statements attributed to him at any time in Glover's presence or that either of them made any reference to race when they were together. London testified that he visited Mrs. Cunningham five or six times near the beginning of the union organizing campaign and that the last time was in July or August. He denied that he visited her in the company of a minister but testified that on two occasions he was accompanied by Glover.15 London testified that he visited Mrs. Copeland four or five times, once with Glover, and Griggs testified that he visited her twice. However, London and Griggs denied that they made house calls together, except for a few visits to key members of the union committee shortly after Griggs arrived in Anniston.ts London and Griggs both testified that they always identified themselves to employees on house calls, and Griggs, who Mrs. Coleman described as her second visitor from the Union, denied visiting her. He testified that he had never worn glasses, having perfect vision. Loftin, the third union organizer in the campaign, did not appear at the hearing. He wears glasses and was described as 6 feet tall and thin. Although London and Griggs denied that they authored or furthered rumors relating to the employment of whites in the plant, both testified that they encountered employees who talked of such matters in the course of the campaign.17 London testified that one Friday or Saturday night, after the hearing,ls at a Legion club while drinking 16 Griggs testified that he arrived in Anniston around mid- November which was lust at the time Mrs Copeland was hired " At the hearing, counsel for the Union conceded that there was a rumor around the plant concerning the matter of whites coming into the plant but stated that he wished to establish that the rumor existed without any responsibility on the part of the Union He did not concede that there was a rumor that whites would replace Negroes, however 's London initially stated that this incident occurred in the summer when it was quite warm but then added that it was probably after the preelection hearing in early September The preelection hearing was held on September 15 298-668 0-69-56 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD beer with an employee named Bradford , at the plant, the employee asked London , "Do you know that we are going to have some white people hired in the plant ?" London answered affirmatively. Bradford asked London what he thought about it , and according to London , he replied, "I have no thoughts about it," and did not pursue the matter. London also testified that he never repeated the story and could not remember hearing it repeated although it could have been. He also testified that in his house calls to employees ' homes, neither he nor employees ever raised this matter.]" Griggs, who was in Anniston for the last 5 or 6 weeks of the campaign, unlike London , testified that late in the campaign on a couple of occasions he heard rumors that whites would replace Negroes and receive higher wages. He testified that he tried to "disperse it" as a rumor and to belittle it. Griggs testified that he also heard , on numerous occasions from employees that the plant was expanding and bringing in additional machinery for a new operation for which white employees would be hired. According to Griggs, at times the two rumors were related . He testified that he believed that there was something in the rumor about money but he tried to play it down because rumors are not good organizationally. He also testified that he did not mention these rumors to his superiors and could not remember whether he discussed them with Loftin or London, the two other organizers on the campaign. A possible source suggested by Petitioner for these rumors was evidence taken at the preelection hearing relating to possible expansion of the plant . At that time, the Employer projected a substantial expansion to take place over a period of the next 8 months requiring employment of approximately 190 employees above the number employed at the time of the preelection hearing. The evidence taken at the preelection hearing established that most of the additional employees would be employed in classifications similar to those already in existence at the plant . However, in connection with a proposed circular knitting section, the Employer predicted employment of six circular knitters and six fixers not then needed in the plant . During that hearing , there was no discussion of the skills the Employer would require in hiring these employees, whether they would be white or Negro, or what their pay would be.21 At the preelection hearing there were several employees from Petitioner's organizing committee present who heard the testimony with respect to the Employer's expansion plans. London testified initially that he never raised the matter of the plant expansion with these employees, that they never raised it with him , and that no one asked him about it. However, he testified later that the committee members present at the hearing asked him about what they had heard at the hearing and that he could not answer their questions because he was not a lawyer.21 London testified that he could not remember whether he asked his attorney to explain the hearing to them, whether he attempted to answer questions for the committee, or if so, what the answers were. I find after having observed and heard the witnesses that Dorothy Cunningham and Helen Copeland sought to testify truthfully to the best of their recollections and do not find London's denials directed to their testimony persuasive. London's testimony to explain the admitted existence of rumors concerning plant expansion and the employment of whites at the plant was not convincing and itself casts doubt on his denial of any role in spreading the rumor. Although London denied repeating the rumor, his denial was equivocal, and he testified that he confirmed the rumor when first asked about it soon after the hearing and then refused to discuss it further with the questioning employee. Moreover, although Petitioner points to the preelection hearing as the likely source of the rumor, London testified inconsistently and evasively as to his conversations about the hearing with union committee members who were present at the hearing. If, as Petitioner suggests, the rumor stemmed from the hearing, it seems unlikely that the inference that the new jobs would be filled by whites would have been drawn without the suggestion of those experienced in the industry who had knowledge of the skills required and the likelihood that Negroes would not be qualified to fill some of the additional jobs. I conclude that London was not candid in his testimony and find in his attempted explanation of the rumor more cause to question his testimony than to accept it. 22, With respect to Mary Alice Coleman, Griggs denied visiting Mrs. Coleman and supported his denial with testimony that he had never worn glasses. Mrs. Coleman's failure to identify Griggs in her direct examination, the manner in which she identified him in the hearing room with the simultaneous observation that he had worn glasses when he visited her, and the absence of any evidence to refute Griggs' claim that he never wore glasses, despite the fact that a number of other employees must have seen Griggs while he was in Anniston, persuade me that Mrs. Coleman's identification of Griggs was erroneous. Although the description of Clarence Loftin in the record raises some suspicion that it was Loftin who visited Mrs. Coleman, the evidence is insufficient to support a conclusion that Loftin or any other agent of the Union visited Mrs. Coleman. However, notwithstanding her erroneous identification of Griggs, I find no reason to 1" Glover testified similarly with respect to the house calls on which he accompanied London 10 There was some evidence at the preelection hearing that jobs throughout the plant would be evaluated after April 1966, and that all rates would be reset based on the evaluation of job content 21 The only issue litigated at the preelection hearing was whether an election was timely because of the projected expansion of the plant 22 Griggs' testimony is only incidentally involved in these two incidents Thus, Mrs Copeland testified that someone who looked like Griggs accompanied London on his second visit to her home. Griggs testified that he visited Mrs Copeland but not with London Although I am of the opinion that Griggs accurately recalled the occasions of his visits to Mrs Copeland, there is no irreconcilable conflict between their testimony, as Mrs. Copeland 's identification of Griggs did not purport to be positive Glover denied hearing London make statements similar to these attributed to him by Mrs Copeland and Mrs Cunningham He testified that he accompanied London to Mrs Cunningham 's house , but he was not asked whether he accompanied London in visiting Mrs Copeland Whether Glover's denial has any significance in connection with the Copeland visit depends entirely upon resolution of the conflict between London and Mrs Copeland . London testified that he believed Clover accompanied him. Mrs Copeland was confronted with Glover who bears little resemblance to Griggs She testified emphatically that he did not accompany Mrs Copeland I credit Mrs Copeland With respect to the Cunningham visits, Glover's testimony leaves the accuracy of his recollection with respect to specific house calls in considerable doubt and I am satisfied that he was not the visitor to whom Mrs Cunningham referred HOBCO MFG. CO. 869 discredit her testimony otherwise , and I find that she was visited by a man who identified himself as a union organizer and who spoke to her as she testified. In the case of Mrs. Abernathy, although Loftin did not testify and her testimony is uncontradicted , I find it unworthy of credit in the light of the omission from her affidavit of any reference to the critical statement attributed to Loftin. It is true that omission of a fact from an affidavit is not always determinative . However, in this case, it is clear that both Loftin's visit and the rumor about white employees being hired to replace Negro employees were explored by the Board agent who took the statement, and his questioning should have disclosed the remarks attributed to Loftin by Mrs. Abernathy at the hearing. She did not claim that she told the investigator what she now attributes to Loftin or that it was inadvertently omitted from her statement . To the contrary, she conceded that she did not mention it to the investigator despite the fact that she was asked to tell him what Loftin said when he visited her and whether she had heard the rumor elsewhere . In light of the above and my observation of Mrs. Abernathy while she testified, I find her explanation for the omission from her affidavit insufficient to persuade me that her memory at the time of the hearing was better than at the time she gave the affidavit . Accordingly, I do not credit her testimony with respect to what Loftin allegedly told her when he visited her home.23 G. Other Aspects of the Campaign Apart from the above , with one exception, the election campaign otherwise utilized traditional written and verbal appeals to employee sympathies by both the Petitioner and the Employer without any reference to racial matters. The exception concerns a booklet entitled , "Equal Opportunity Union Made," published by the Educational Department of Petitioner , the theme of which is that Petitioner is a multinational , multiracial, multilingual group of workers who had joined together to work for improved wages, hours, and working conditions for all. There is no evidence that Petitioner made any effort to distribute the booklet among the employees at Hobco; rather it appears that a small number of copies were left at the hall of Local 414 of the Molders' Union where Petitioner sometimes held meetings and that Hobco employees may have seen it there. It. CONCLUSIONS The Employer contends that the facts set forth above demonstrate that there was a calculated effort on the part of the Union through its own organizers and others acting on its behalf "to fan the flames of division between the Negro employees and their white employer" and "to create hatred and hostility to the white employer" by injection of false, misleading, and irrelevant issues in the campaign . The Employer contends that under the standards set forth in Sewall Manufacturing Company, 138 NLRB 66, the election must be set aside. The Petitioner contends , on the other hand , that all of the conduct complained of related to the overriding theme of economic improvement , which was the basic theme of the campaign , and occurred in the context of a dialogue over the campaign in the Negro community of Anniston and Hobson City. The Petitioner contends that the references to race were germane to the campaign, were not designed to generate hatred of whites as a race, and were permissible under the Board 's decisions in Archer Laundry Company, 150 NLRB 1427, and Aristocrat Linen Supply Company, Inc., 150 NLRB 1448. In Sewall Manufacturing Company, supra , antiunion appeals were made to white employees which included pictures of whites dancing with Negroes, a newspaper article with a similar picture relating to another election involving a different union some 4 years earlier which stated that race mixing was an issue in that election, and frequent references to the contributions of other unions to the NAACP and CORE. In the face of this campaign, the Board set aside the election and set forth standards for evaluating appeals to racial prejudice . Noting that "[s]ome appeal to prejudice of one kind or another is an evitable part of electoral campaigning " and must be left "to the good sense and judgment of the electorate" to evaluate, the Board stated its belief "that appeals to racial prejudice on matters unrelated to the election issues or the union's activities are not mere `prattle' or puffing." It announced that it did not intend "to tolerate as `electoral propaganda' appeals or agruments which can have no purpose except to inflame the racial feelings ofthe voters in the election." 138 N1 RB at 70. 71 (emphasis supplied). The Board summarized its holding:24 So long, therefore , as a party limits itself to truthfully setting forth another party's position on matters of racial interest and does not deliberately seek to overstress and exacerbate racial feelings by irrelevant , inflammatory appeals, we shall not set aside an election on this ground . However, the burden will be on the party making use of a racial message to establish that it was truthful and germane, and where there is doubt as to whether the total conduct of such party is within described bounds, the doubt will be resolved against him. In the Archer Laundry Company case the facts were similar in a number of respects to those in the instant case. There at the invitation of a group of Negro ministers and with their aid , a union sought to organize a group of laundry workers who were for the most part Negroes. Along with the union representatives, the ministers and other civil rights leaders talked with workers about the Union's goals and objectives and conducted an organizing campaign . A number of leaflets were passed out identifying the union organizing campaign with a fight for freedom . One leaflet entitled "FREEDOM IS EVERYONE'S FIGHT" stated with accompanying pictures , "DOGS couldn't stop us ! POLICE BRUTALITY couldn't stop us! ! FIRE HOSES couldn't stop us!! ! Are you going to let your [boss] stop you?? A yes vote for the Union is a yes vote for FREEDOM." Another leaflet headed, "WHAT DOES THE REVEREND MARTIN LUTHER KING JR. HAVE TO SAY ABOUT LABOR UNIONS?" identified " our" needs with labor's needs, and continued: THAT IS WHY NEGROES SUPPORT LABOR 'S DEMANDS. THAT IS WHY THE LABOR HATER IS ALMOST ALWAYS A TWIN-HEADED CREATURE SPEWING ANTI-NEGRO TALK 23 To the extent that her affidavit indicates that she heard a rumor from some girls , she testified that she heard it after the election when it could not have had any bearing on the outcome of the election 24 138 NLRB at 71-72 (emphasis in original) 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FROM ONE MOUTH AND ANTI-UNION PROPAGANDA FROM THE OTHER. It concluded by urging a yes vote for the Union. Another leaflet entitled "NEWS FLASH" contained typical organizational propaganda urging a vote for the Union but also included the slogan, "Be a free person-not a'Handkerchief-head Uncle Tom."' A leaflet signed by three ministers urged organization, stating among other things, "It is a simple fact that colored workers who belong to unions are far better off than those who don't." The Board overruled objections to the election based on these and related appeals, adopting the Regional Director's report on objections. In his report, the Regional Director distinguished Sewall Manufacturing Company, supra, observing that "there is a vital difference between the basic themes of these two campaigns. In each, the idea that unions support racial integration and equality was hammered home, yet the purpose of such emphasis was different in the two cases." Thus, he found that in Sewall the literature "was designed solely to inflame racial hatred and to engender a conflict between Negro and white workers in a southern plant .. . . There was little mention in these campaign activities by the Employer or its agents that unions would or would not bring economic benefit to the workers." On the other hand, the Regional Director found that the racial issues in the Archer campaign had different implications: The literature distributed did not deliberately seek to invoke the hatred of the Negro employees for white people. The literature in the instant case was not designed to engender race hatred, but instead, racial self-consciousness. Negro workers were told that because they were Negroes, they were discriminated against in the economic sphere. The point was made that Negroes have, in the past, received lower wages and were subject to poorer working conditions than white workers, primarily because they were Negroes They were urged to join a union, which is not an act against the white race, to permit concerted action which could bring Negroes to equality with whites. The Regional Director distinguished between "racial propaganda designed to inflame racial hatred and set the tone of a union campaign as a battle of one race against another as in Sewall and racial propaganda designed to encourage racial pride and concerted action." After careful consideration of these decisions and the facts in this case, I am of the view that the conduct complained of in this case is similar to that in Archer and that the objections must be overruled for similar reasons.25 As in Archer, there appears to have been no attempt to invoke the hatred of Negroes for whites as a class to 25 See also Aristocrat Linen Supply Company, supra, Archer Laundry Company, 155 NLRB 24 Even it is assumed that the decision of the Court of Appeals for the Fourth Circuit in N L R B v Schapiro & Whitehouse, Inc , 356 F 2d 675, is at variance with these decisions, they are controlling unless and until the Board indicates that its views have been modified 21 In view of the Union's notices urging attendance at the December 12 CCIA meeting and its sponsorship of the December 8 union meeting and the December 21 party, I find that the Union is responsible for any statements on these occasions made by the scheduled speakers which might be considered to have had an effect on the election induce votes for the Union without regard to whether the Union would improve or harm the employees. Rather all racial references complained of were in the context of appeals to vote for the Union because it would be of economic benefit to the employees to do so.26 The statements of Rev. Boone and Rev. Reynolds on December 12, that one could be sure that any employer who hired all Negroes was trying to get along with cheap wages, convey an opinion assessing motivation little different from those found in typical organizing campaigns with respect to employers who move their plants from one place to another or who employ nonunion labor. The remarks by Rev. Boone on December 21, referring to Medgar Evers and urging the employees to stand up for their rights and vote yes, were in a sense less graphic than the leaflet in Archer which compared dogs, fire hoses, and bosses. Rev. Boone made no odious comparison of the Employer but drew on a symbol of Negro strength in urging the employees not to falter. Dr. Rodgers' appeals on the same occasion went no further than the leaflet in Archer which compared labor haters to two-headed creatures. None of these statements were made in isolation; all were in the context of appeals to the employees to vote for the Union in order to achieve improved wages, benefits, and working conditions in harmony with the goals of the civil rights organizations to improve the overall condition of Negroes.27 None of these statements urged a vote for the Union as an act against whites; all urged unionization as a means to self- improvement .211 With respect to the statements made by London to Mrs Cunningham at her home, although I have credited her testimony, it leaves me in considerable doubt whether London's visit to her occurred before or after the Union's election petition was filed.29 Mrs. Cunningham's testimony revealed rather clearly that her initial estimate that the visit occurred in September or October was not based on any firm recollection. The only event to which she could relate the visit, the start of her child at school, occurred soon after the petition was filed. In the light of her inability to say whether London's visit was before or after that event, I am of the opinion that her testimony is insufficient to establish that London visited her after the petition was filed. In these circumstances, this incident may not properly be considered as a basis for setting aside the election.30 However, even if the evidence were sufficient to establish that London visited Mrs. Cunningham after the petition was filed, I am of the further view that neither the statement to her nor the statements which I have found London made to Mrs. Copeland would warrant setting 2' With respect to the booklet entitled, "Equal Opportunity Union Made," I am of the view that its role in the campaign was insignificant But if it had impact, it could have served only to impress the employees that the Union did not believe in pitting race against race but sought improvement of conditions of employment for all regardless of race 28 In the light of these conclusions I find it unnecessary to consider whether Mayor Striplin's role in the campaign gave justification to the Union's campaign tactics 2° The petition was filed on August 25, 1965 "' The Ideal Electric and Manufacturing Company, 134 NLRB 1275 HOBCO MFG. CO. 871 aside the election.31 I do not find in either case an irrelevant appeal designed to inflame racial feeling against whites. To the contrary, London suggested in one case that an integrated plant was essential to the betterment of conditions of the Negroes who worked there and in the other that whites would be hired at higher wages which the Union would help the present Negro employees to achieve also. London's assertions and arguments, whether or not valid, are difficult to distinguish from traditional propaganda directed at employees in representation campaigns. Like the appeals discussed above, they were appeals to racial self-consciousness designed not to cause action against whites but to encourage concerted action to bring Negroes to equality with whites. Again, following the Board's decision in Archer, supra, I find no basis in London's statements to Mrs. Cunningham or Mrs. Copeland to warrant setting aside the election. With respect to rumors that the Negro employees would be replaced, the testimony of Mrs. Coleman establishes one instance approximately a month before the election in which an unidentified man who purported to represent the Union told an employee that the Employer was going to let its Negro employees go and replace them with whites. Apart from this, there is only the concession of Griggs that on a couple of occasions he heard a rumor that whites were going to be hired to replace Negroes, which Griggs testified that he tried to belittle as a rumor. In these circumstances, I find this case even weaker than that decided by the Board in Kresge-Newark, Inc., 112 NLRB 869. There a union representative was alleged to have said at an employee meeting that if the petitioner did not win the election, the employer would lay off all colored employees and the only way to save their votes was to vote for the petitioner. The Board found that such a statement even if made by a representative of the petitioning union did not constitute a threat of reprisal which it was within the power of the Petitioner to take thus preventing the employees from exercising a free choice in the election. The statement constituted at most an accusation against the Employer in the nature of campaign propaganda which the employees were capable of evaluating in choosing their bargain- ing representative Here, whether or not an agent of the Union made the statement to Mrs. Coleman, she at least believed that its source was a union representative, so that the same may be said of this statement as was said of the statement in Kresge. Moreover, there is no evidence that the rumor concerning replacement of the employees was extensively circulated. Griggs' testimony is uncontradicted that when he encountered it he sought to belittle it. In these circumstances I conclude that the evidence does not establish that this rumor became a factor of sufficient significance in the election to have created an atmosphere of fear which would warrant overturning the election, without regard to responsibility for its circulation. '12 RECOMMENDATION On the basis of the findings and conclusions set forth above, I recommend that the Employer's second objection be overruled and that the Petitioner be certified as the bargaining representative of the employees in the unit found appropriate in the Regional Director's decision and direction of election. 11 As I have found above, London told Mrs Cunningham that the employees were not being treated fairly and that if the Employer hired some whites, the Negro employees would be treated more fairly and would get more pay He also told her that the Employer did not want to hire whites because whites would not work for what the Negroes were working for London told Mrs Copeland that by April the Employer would hire some whites and they would be paid more than the Negro employees but that if the Union came in, they would all be paid equally 11 Cf N L R B v Staub Cleaners, Inc , 357 F 2d 1, remanding Staub Cleaners, Inc , 148 NLRB 278, for further hearing