Winfield Mfg. Co., Inc.

WINFIELD MFG. CO., INC. Winfield Mfg. Co., Inc. and Amalgamated Clothing Workers of America . Cases 10-CA-7180, 10-CA-7227, and 10-CA-7278 November 12, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On April 30, 1968, Trial Examiner Charles W. Schneider issued an Order in the above-entitled proceeding granting the General Counsel's Motion for Summary Judgment with respect to that part of the consolidated -complaint alleging that Winfield Manu- facturing Co , Inc., hereinafter called Respondent, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended, and denying that part of the consolidated complaint alleging that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a) (1) of the Act in order to afford a hearing on this latter issue. Thereafter, on July 19, 1968, pursuant to a hearing, Trial Examiner Herman Tocker issued his Decision in the above- entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a) (1) of the Act, adopting Trial Examiner Schneider Order granting the General Counsel's Motion for Summary Judgment with respect to the Section 8(a) (5) allegation alleged and also finding that Respondent had violated Section 8(a) (5) of the Act, and recommending that Respondent cease and desist from engaging in the unfair labor practices alleged and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent and the Charging Party, Amalgamated Clothing Workers of America, filed exceptions to the Trial Examiner's Decision together with supporting briefs. 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 Motion for Summary Judgment, the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner,' as modified herein. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by 173 NLRB No. 103 733 law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appro- priate unit. See Mar-Jac Poultry Company, Inc, 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817, Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C A. 10). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relaitons Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified herein, and orders that Respondent, Winfield Mfg. Co., Inc., Winfield, Alabama, and Golden, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as modified herein. 1 Member Zagoria concurs in the Trial Examiner 's conclusion that the Respondent violated Section 8(a) (1) of the Act in connection with the speech of November 16, 1967 , the questionnaire of November 10, 1967 , and the leaflet distributed the day before the election . He does not, however, adopt all of the Trial Examiner 's comments and characterizations , but relies, with respect to the speech , only on the solicitation of employees to withdraw from the Union and the implied threat with respect to layoffs , and with respect to the questionnaire, only on the failure to observe the requisite safeguards concerning explanation of purpose and assurances against reprisal and as to voluntary participation , and the fact that the questionnaire sought to learn the identity of union solicitors even when there was no indication of improper conduct 2 Respondent's request for oral argument is hereby denied as the record adequately presents the issues and positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN TOCKER, Trial Examiner This proceeding is concerned with charges alleging unfair labor practices by or on the part of Winfield Mfg. Co , Inc., the Respondent, which charges were filed by Amalgamated Clothing Workers of America, the Union-December 13 and 14, 1967, and January 15, February 28, and March 4, 1968, a total of six, two having been filed on March 4 An initial complaint was issued January 22, 1968. A second was issued March 15 and, at the same time, an order was entered consolidating both cases. Respondent's answers to the complaints were received Frebruary 1 and March 22, 1968, respectively. The January 22 complaint alleged that the Respondent had violated Section 8(a) (1) of the Labor Management Relations Act of 1947, as amended, when it issued and distributed to its employees two leaflets-one allegedly threatening them with loss of work and plant closure if Amalgamated Clothing Workers of America, the Union, was successful in its organizing campaign and the other allegedly interrogating them concerning their union membership, activities, and desires, and the union membership, activities, and desires of other 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees The Respondent admitted the distributions but denied that by so doing it had engaged in the alleged unlawful conduct. Except for these denials and a denial of knowledge or information sufficient to form a belief as to the capacity of the Charging Union as a labor organization, it admitted all other allegations of the complaint The March 15 complaint alleged that Respondent's President, Milton Weinsten, in a speech to employees on November 16, 1967, unlawfully solicited them to abandon the Union and distributed letters to be signed by them for that purpose, threatened them that it would be futile for them to join the Union because union demand would result only in strikes, and also threatened to discontinue its practice of not laying off employees when profitable business was not available if the Union succeeded in its organizing campaign. This complaint alleged also that, following a certification by the National Labor Relations Board that the Union was the exclusive collective-bargaining representative of a unit of Respondent's employees at its Winfield, Alabama, plant, Respondent wrongfully refused to recognize and bargain collectively with it even though it had been the representative of Respondent's employees at all times since such certification and had requested Respondent to bargain collectively with it as such While Respondent admitted the Weinsten speech, it denied that its effect was as alleged Also, while it admitted the certification of the Union by the Board, did not put in issue the unit as defined, and admitted that it had refused to bargain following demand, it claimed that the election preceding the Board's certification had been "improper " For this reason it denied that it was required to bargain It denied all allegations alleging that it had engaged in unfair labor practices but admitted all others excepting, however, that concerned with the Union's capacity as a labor organization As to this, it denied knowledge or information sufficient to form a belief Following receipt of the answers prior to the hearing, counsel for the General Counsel submitted a motion for summary judgment. That motion was considered by Trial Examiner Charles Schneider, and was granted in part and denied in part A copy of his order is attached to this Decision as Appendix A Counsel for the General Counsel applied for reconsideration of the denial portion but this application was denied The order did not provide for a severance of the proceeding and the ultimate findings and remedial action, if any, were reserved for dispostion by the trial examiner to whom the case was to be assigned for hearing The case came on for hearing before me on May 7, 1968, in Winfield, Alabama The General Counsel and Winfield Mfg. Co., Inc , were represented by Counsel The Union had present two lay representatives. Counsel for Respondent has submitted a brief which has been considered with care THE ISSUES Although in its answers to both complaints Respondent denied having knowledge or information sufficient to form a belief as to the qualification of Amalgamated Clothing Workers of America, the Union, as a labor organization within the meaning of the Act, this issue has been settled by the Board in its decision certifying that Union as the exclusive representative of the employees in the unit involved. (Board's Decision, February 16, 1968, Case 10-RC-7228 ) The remaining issues are: Were any of the statements contained in that certain leaflet distributed by Respondent to its employees on the day before the election susceptible of an interpretation that Respondent was threatening them with loss of work or plant closure if the Union won the election? Did the Respondent, by asking its employees the questions set forth on the questionnaire distributed to them on the day after the election, improperly interfere with them in the exercise of their rights guaranteed by Section 7 of the Act "by interrogating [them] concerning their union membership, activities and desires and the union membership, activities and desires of other employees[?] " Did Respondent, by the speech delivered on or about November 16, 1967, in the vicinity of its Golden, Mississippi, plant, and by preparing and distributing resignation letters addressed to the Union, wrongfully solicit its employees to abandon the Union? Did Respondent, in that speech, threaten its employees with the futility of joining the Union because union demands would result only in strikes? Did Respondent threaten them that its practice not to lay them off in the absence of profitable business would be discontinued if the Union were successful in its campaign? Finally, was there an unlawful refusal to recognize and bargain with the Union in violation of Section 8(a) (5) of the Act? Now, on the basis of the entire record, I hereby make the following FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND JURISDICTION Winfield Mfg Co., Inc., the Respondent, is a corporation duly organized and existing under the laws of the State of Alabama. It manufactures finished articles of apparel at plants in Winfield , Alabama , and in Golden , Mississippi . It is engaged in commerce within the meaning of Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended The National Labors Relations Board has jurisdiction over it and of this proceeding II THE LABOR ORGANIZATION INVOLVED As heretofore decided by the National Labor Relations Board in Case 10-RC-7228, Amalgamated Clothing Workers of America, is, and at all times involved herein was, a labor organization as defined in Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Alleged Violation of Section 8(a) (5) of the Act by Failure and Refusal to Recognize and Bargain with the Union This issue has been decided by Trial Examiner Charles Schneider in his order granting partial summary judgment, a copy of which is annexed hereto as Appendix A. WINFIELD MFG CO., INC 735 During the hearing, Respondent sought again to litigate this issue It sought among other things, consideration of a document entitled "Amendment to Objections to Election," to which were annexed two exhibits, one a letter from "The Organizing Staff" of the Union addressed to all employees of Winfield Mfg Co , dated November 7, 1967, two days before the election, and the other, an analysis of free insurance offered to union members and their dependents Also offered at the same time was a letter dated December 15, 1967, from the Regional Director of the National Labor Relations Board for Region 10, whereby he rejected the proposed amendment on the ground that objections must be filed within five working days after the date of the election and returned the three copies Respondent had filed with him. While this offer had been considered generally by Trial Examiner Schneider in the order to which I have referred above, it does not appear that the actual documents had been submitted to him During the discussion at the hearing, prior to my ruling on the offer, I ascertained that Respondent failed to appeal from the Regional Director's rejection of the proposed amendment even though it could have brought the matter up for consideration by the Board prior to the Board's decision in the representation case My examination of the file in Case 10-RC-7228 does not disclose any effort to bring up for review either the proposed amendment or the Regional Director's rejection of it. The objections by counsel for the General Counsel to the receipt in evidence of this offer were sustained I adhere to my ruling at the hearing To the extent that it is necessary, if it is necessary, I adopt the decision of Trial Examiner Schneider and find that Respondent did, without reason, fail, omit, and refuse to recognize and bargain collectively with the Union as the exclusive collective-bargaining representative of all its employees in the following unit. All production and maintenance employees at Respondent's Winfield, Alabama, plant, including plant clerical employees, but excluding officer clerical employees, engineers, professional employees, guards, temporary employees, and supervisors as defined in the Act B The Speech of November 16, 1967, at the Golden, Mississippi, Plant It is admitted that on November 16, 1967, Respondent's President, Milton Weinstein, addressed the employees of its Golden, Mississippi, plant This was just one week following the consent election held at the Winfield plant following which the tally of ballots showed that, of approximately 291 eligible voters, 142 had voted for the Union, 128 against it, 3 ballots were challenged and 1 was void This speech appears in the record on more than 22-ih double-spaced, typewritten legal-size pages It would serve no purpose to set it forth in its entirety. Apart from its extraordinary length, it included a violent attack upon the Union, assertions that the Union's interest was only to obtain approximately $50,000 a year dues from Winfield employees if it were successful in organizing the Winfield, Golden, and Puerto Rico plants of Respondent, and it would be able to get nothing for the employees that they had not been able to get without it, a most emphatic defense and praise of its personnel policies, a comparison of working rates and conditions at Respondent's plants with those at neighboring plants, a recital of benefits received by Respondent's employees, all without the benefit of or assistance from a union, a most emphatic and detailed picture of the steps which Respondent's President, Mr Weinsten, took and the financial risks involved in his efforts to obtain business whereby he could keep the plant working full time, a statement of his outrage that any employee might join a union and thereby demonstrate her lack of confidence in him and her lack of appreciation for what he had done, a sequence of rhetorical questions as to whether he would want to seek business or take on risky contracts for employees who had joined a union, rather thinly veiled intimations that when plants are organized, organization soon is followed by closing down of such plants, reference to violence attendant upon union organization and strikes following such organization or attempts at organization, assertions that Respondent could not be forced to make any agreements with any union that it did not want to make and that, if any such attempt was made, a strike and attendant violence would be the only result, all of which and more was followed by an exhortation to pick up and sign two copies of a letter addressed to the Union, advising it that the signer had no desire to belong to it and requesting it either to destroy or to return the card which had been signed by her or him Two copies were provided, one to be sent to the Union and another to be mailed to Respondent's attorney in Birmingham. I repeat that this speech was made at the Golden, Mississippi, plant, while a campaign was being waged to organize the employees there, one week after the Union had won the election at Winfield, Alabama In some respects the speech is very much like that set forth in Appendix B of the Trial Examiner's decision in Lester Brothers, Incorporated, 142 NLRB 992, 1016. That speech was held to be within the protection of Section 8(c) of the Act as a legitimate exercise of the right of free speech. The complaint, however, alleges that Respondent in its speech, went beyond the protection afforded by Section 8(c)- (1) That it thereby "solicited its employees to abandon the Union and distributed letters prepared by [it] for signature by [them] declaring the employees' withdrawal from membership in the Union." After a 19-page harangue, Mr Wernsten continued The truth of the matter is that I think that several of you-I don't know how many-that have signed Union cards, I think really that you are sorry about it I honestly think that I might be stupid I have been called stupid before but I honestly think that a lot of you people here who have signed Union cards are a little sorry about it and for that reason I am going to make a suggestion. There is no forcing of anything. It is just a suggestion I want this Union out of here and I want them off our backs. I don't want to make speeches like this again. I just don't want them around and there is only one way to do it I know that they don't have many cards but this is a suggestion this is not an order I am not telling you to do it. I repeat "a suggestion". If you believe the things that I have told you here this afternoon and if you feel that you-those of you that have signed the cards-if you fell that you would like to withdraw it, then I think now is the time to do it because I think if the Union were to get a lot of letters withdrawing your cards or withdrawmg your names I think that it might push them out of here. I am not positive of it but I think that it might and I honestly, sincerely think that it is the smart thing to do and I am telling you again that I am not ordering you to 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do it because I can't. I can't order you to do anything like that I can suggest and I can suggest it rather strongly If you think that you have enough confidence m_ me to continue to work this business as I have been runing it which hasn't been too bad and we don't need a Union, we don't want a Union, then I would suggest very strongly that you take one of these letters that we are going to pass out and mail it off. What is this letter? We have two copies here that read-they are identical Only do this if you believe me though girls. Only do this if you have a sincere desire to do it. This letter reads: TO The Amalgamated Clothing Workers of America "Gentlemen. After further thought and consideration I hereby withdraw the Union authorization and membership card that I recently signed. I have no desire to belong to your Union Please destroy the card or return it to me I work for the Winfield Manufacturing Company in the Golden, Mississippi plant." There is a place there for your name and there is a place there for your address. There is a second copy with an address on it that we want you to mail to our attorney in Birmingham. The only reason for that is that in the event the Union wanted to continue to claim you then we would have a record of the fact that you did not want your card in there. As I said you are not obligated to do this I am merely suggesting it. I think that it is the smart thing to do We are going to pass these out to everybody in just a few minutes Those of you and you are the majority I just want you to take this with you, those of you who have not signed a card, just take it and take it home with you and tear it up. Of course, you would have not reason to send it in. The only reason that I am handing them out to everybody is twofold. No. 1 I am not supposed to and I don't want to know who has signed Union cards. I don't want to know. By just giving them out to those who want them it would be embarrassing so for that reason we want to hand them out to everybody in here, those that want to use them use them Those that have no purpose in using them, just tear them up when you get home. Again I repeat I think it is the smart thing to do. While here and there there are statements that no one is being forced to sign the withdrawal letter, no one is being told to do it, that it is only a suggestion, that Respondent cannot order employees to do anything like that but can only suggest it, and that employees should sign it and send it to the Union only if they have a sincere desire to do it but that they are not obligated to do it, these remarks are interspersed among others "I want this Union out of here and I want them off our backs. I don't want to make speeches like this again. I just don't want them around and there is only one way to do it." After this, follows a suggestion to sign the letters and more protests that the employees can't be ordered to do it. Then, "I can suggest and I can suggest it rather strongly. If you think that you have enough confidence in me to continue to work this business as I have been running it which hasn't been too bad and we don't need a Union, we don't want a Union, then I would suggest very strongly that you take one of these letters that we are going to pass out and mail it off." This is followed by a reading of the letter, instructions as to what should be done with it, and more protests that the employees are not obligated to "do this" and that it is merely a suggestion but, I think that it is the smart thing to do." Next follow the statements that the withdrawal letters are intended only for the people who have signed union cards or those that want to use them. Others are instructed to "just tear them up when you get home." But this portion of the speech is completed with a final remark, "Again I repeat I think it is the smart thing to do." What Respondent did here is far from what we find in North American Aviation, Inc., 163 NLRB No 115, and is clearly within cases like Astronautics Corporation of America, 164 NLRB No. 98, Movie Star, Inc, 145 NLRB 319, and Winn-Dixie Stores, Inc, and Winn-Dixie Greenville, Inc., 128 NLRB 574, to name but a few (2) The next allegation of the complaint concerned with this speech is that in it Respondent "threatened its employees that it would be futile for [them] to join the Union because union demands would result only in strikes." On the 18th page of the speech, after referring to the closings of two manufacturing plants, Mr Weinsten said: This Amalgamated crowd they are a lot different than I. I am not a violent person. I don't mean to tell you that I'm temperate necessarily and that I will take a lot of stuff from anybody. I don't mean it that way but I am not a violent person I couldn't help but pick up this newspaper here pertaining to the Russellville plant with the same Amalgamated people that are outside this door-in fact, that's where their headquarters are today-they call it a strike headquarters-strike headquarters The newspaper article pertaining to the Russellville plant "The Memphis Newspaper covers the strike Workers are attacked and beaten. Transformers shot into. Pretmore plant damaged. That is the name of the Russellville plant Homes and autos fired upon. Women and children are attacked. More gruesome details. Women stripped of their clothing. " I don't know. We think that we want to associate with this kind of a group. It sure isn't my kind of tea I just don't go for this kind of stuff. Frankly and honestly I don't think that you people do either. You know these remarks are addressed primarily to the girls amongst you I don't know and I don't have the least idea who you are that signed Union cards and I know that by far the majority of you here have not. On the next page of the type written transcript of the speech appears the following- [Referring to the union officials who are looking for Winfield employees to contribute $50,000 to them a year in the form of dues ] They sit on their big fannys up there and they will take the money from you and what are they going to give you. They can't give you a thing and I'll tell you why they can't. The Union nor a court and I want you to digest this and I want you to listen to it carefully, there is no Union, there is no court that can gauge wage rates or benefits The success of a business is the only thing that gauges it. There is no Union or there is no Court that can force me to do anything that I don't want to do. I am going to repeat that. There is no Union, there is no court that can force me to do anything that I don't want to do How they can go ahead and tell you about Union wages, about benefits of this sort, benefits of that sort, the vacations, so on and so forth. I honestly, sincerely don't know I honestly, sincerely don't know. Because if they attempted to, Oh they could try If they attempted to what does it mean. It means this newpaper business. That what it means. It means strikes. It means the same thing that I just read to WINFIELD you from this paper They could try but that's what it leads to. If that's what we want, that's what we will get. In the context of this cruelly lengthy speech, Mr. Weinsten made it crystal clear by these remarks that it would be futile and dangerous for his hearers to join the Union because, while the Union "might attempt to" or "could try" to get the benefits mentioned, its attempts, efforts, or demands would not be met and would result only in strikes accompanied by the violence described in the newspaper article read only seconds before. See Herman Wilson Lumber Company, 149 NLRB 673 (3) Finally, with respect to the speech, it was alleged that Respondent thereby "threatened its employees that it would discontinue its practice of not laying off employees when profitable business was not available if the Union was successful in its organizational campaign " After rerrundmg them that Respondent never had a layoff and never works the employees short hours or short weeks, Mr Weinsten pointed out that other plants in Mississippi and Alabama do not operate that way. He told them that his practice was to go out and get business in order to keep the people working. Last April we didn't have any work, you didn't know it, you didn't know it but I have to look two months in advance to get contracts for you people No body knew that we didn't have any work, except, of course, Bill. I had learned of this company that had bankupted-who had just gone bankrupt out in California. I called them on the telephone and I was out there the following morning. I went to work with them I took my lawyer with me from New York. We had another lawyer from California who knew the California law and we went to work. . . I had made up my mind I had to get that order because you people did not have any work to do.... the only way that I could get that order . . was to advance the company, who was bankrupt-hopelessly bankrupt, a tremendous amount of money. I didn't have the money. I had to go out and borrow it-a tremendous amount of dough and I had to advance that money to them so that the Government would permit me to take balance of the contract off their hands 700,000 pairs of pants. Next he told them that his lawyer had advised against the deal My answer to him was very simple I said "I have a responsibility to these people It is my job to present them." Then he told of another order he procured to keep the employees working. Fortunately, I am respected rather highly with the Government officers. They told me about this one. I called this fellow who is down in Miami, Florida. His factory is down there and I gave him $10,000.00 for an order on which I could not make a profit if I stood on my head-just to bring it here and give you an extra couple of weeks of work and I split it between you people and Winfield. . . I am telling you these things because I have done them many times in the past. I have done these things many times in the past-only for one reason. Not for me. If this place closed down two weeks ago because I didn't have work I wouldn't get hurt, honestly I wouldn't. But I have a feeling for you people out here and that's why I work my darn self in New York and travel all over the country in Philadelphia, California, and every place else where there is a conceivable MFG. CO , INC. 737 order to try to bring it to you. What does it all boil down tog It boils down to this Anybody that feels that they have got to have assistance from arbitration committees, from Unions to work with me, it means only one thing To me it just means that you have got no confidence in me for anything that I might have done that was nice There has been no appreciation for any of these things that I am telling you about . . I like to be appreciated. I don't ask for thanks. I don't ask for any bouquets of flowers but when I do go to Hell and back for somebody I do like to be appreciated for it. And there is absolutely no appreciation in my estimation from people that feel that they have to sign Union cards for Union representation to work with me-to bargain with me. I don't feel that I just feel that it is a complete lack of confidence and it doesn't sit well with me and I don't mind telling you. You know it is a very easy thing for me to do-it's a very easy thing for me to say-that if I ever had any conditions like that in here there is no court, there is no Union, there is nobody that could ever force me to take an order or a contract where I wouldn't make a profit . I am not telling you that I have been losing money because it is not true but what I am telling you is that there are times that are rough right now is a time that is rough-right this very minute and if I can do things for you without making a profit-fine, I would be delighted to do it but for anybody who has no confidence in me it is a great big questionmark (as to ?) that's what I am going to do for them and I don't say that to scare you I don't say that to put any fear in your heart. Honestly I don't do it for that reason. I am just letting you know a little bit about the insides of Mr Weinsten How I think and how I work That's why I am telling you these things now. If there is no profitable work around what do you do? You just close the doors and when you get work call your people back. . But if I want to assume a real hard tact which most businessmen do, I have never seen the President of Blue Bell ever take an order because Uh and I like Blue Bell-I think they are a fine company and I am not criticizing them don't misunderstand me or Arrow Shirt I could have said or Munsingwear. I have never seen them take orders at a loss just to keep their people busy and you people know it better than I do because you have lived here with them. I never have. You know it better than I do so that's why I keep saying to you that it's not just by'accident that Winfield has never had a layoff-why you people have never had a layoff for three years and a few months that we have been here or six years that we have been there. These people tell you that there is a great bit of security-a great bit of security-belonging to a Union. Let me tell you something about security. There is only one thing that makes you People secure and that security comes from success of a business. If business is successful then you are just as secure as you want to be but that's the only thing that gives you security. No Union contracts, no arbitration business no courts or nothing. It is just the success of a business that gives you security. They tell you in these pamphlets that you've got more security-it is just a lot of boloney. It doesn't mean a thing-any more than what they tell you about Union wages, better working conditions and so on and so forth. Then after telling about two plant closings, strike violence, the futility of union organization, and next going into the 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter of withdrawing from the Union and the distribution of the letters for that purpose, he approached the end of his speech with a last paragraph beginning, "Before we dismiss the entire group I want to say this. Of couse, it is no secret All of you people do know that we are out of work. I am trying and I will know on Monday whether my efforts have been successful for getting a contract in here in a real big hurry The foregoing, as is indicated by the dashes and interpolated remarks, are a number of disconnected quotations dealing with this subject. Much has been omitted. The material omitted tended to create a seesaw effect, always stressing Respondent's concern for the welfare of the employees and the fact that the business was run in a manner which gave them maximum benefits not to be equaled or matched by anything they could obtain with the assistance of a union. What is clear however from this speech, particularly the portions I have quoted, is that Respondent's President, Mr Weinsten, was telling the employees that it is his practice to go out and secure business in order to keep them working even though this practice does not result in profits for him and is undertaken frequently with great risks and a possibility or even probability of losses. It is, nevertheless, undertaken in order to keep them working. However, employees who believe they need to have a union to represent them thereby demonstrate to him that they do not appreciate his efforts in their behalf and have no confidence in him. This angers him Being so angered by people who are unappreciative and have no confidence in him, should they display such a lack of appreciaton and confidence by becoming members of the Union, he will not seek out contracts and take risks of financial loss just to keep such unappreciative people working This was clearly the sort of threat alleged in the complaint to the effect that Respondent "would discontinue its practice of not laying off employees where profitable business was not available if the Union was successful in its organizational campaign." It was not a prediction of what might happen in the event of union organization It was a prediction of what would happen with respect to a practice coley within his control As such it constituted a threat that benefits which employees were enjoying without union organization would be denied to them in the event of such organization. C. The November 10, 1967, Questionnaire This questionnaire was submitted to the employees on the day following the holding of the election won by the Union at Winfield, Alabama, plant. It is clear that its purpose was to elicit information or evidence on the basis of which objections to the election might be filed. Board elections for the selection of exclusive bargaining agents must be held under what has been described as "laboratory conditions " If there has been any improper conduct in connection with an election a party aggreived unquestionably has the right and obligation to obtain evidence of such improper conduct and to file objections. This right includes the right to engage in investigations for the purpose of obtaining that evidence but it does not result in a nullification of Section 7 of the Act which grarantees other rights to employees. Most recently, in Automotive Warehouse Distributors, Inc, 171 NLRB No 101, referring to Johnnie's Poultry Co, 146 NLRB 770, enforcement denied on other grounds 344 F 2d 617 (C A 8), the Board said In that case, we noted that both the Board and the courts recognize that an employer may exercise the privilege of interrogating employees on matters involving their Section 7 rights without incurring 8(a)(1) liability. In seeking to balance the conflicting rights involved, we set forth specific safeguards designed to minimize the coercive impact of such interrogation, namely, that "the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis, the ques- tioning must occur in context free from employer hostility to union organization and must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees. When an employer trans- gresses the bounds of these safeguards, he loses the benefit of the privilege." There is nothing in this record to show that Respondent communicated to its employees the purpose of the questionnaire. There is nothing to show that any employee was assured that no reprisal would take place and that his participation in answering the questions propounded was on a voluntary basis The contrary may be inferred on both counts because the questionnaire appears to be a document complete in itself. Moreoever, Respondent's attorney, in his brief, while arguing that anwering the questionnaire "was purely voluntary and no more" also says that it "was made available to employees without comment " (Emphasis supplied.) It is clear in the record, particularly from the leaflet distributed by the Employer entitled, "Facts to Remember, Excellent Reasons for Voting No in Thursday Election" (discussed below), that Respondent was hostile to union organization, and that this questionnaire was prompted by its anger with the election result. The questionnaire was objectionable for additional reasons. There is nothing in it to suggest that Respondent was aware of any reason why objections should be filed and that the interrogation propounded was connected legitimately with such knowledge for the limited purpose of securing the evidence necessary to prove that knowledge On the contrary it was nothing but the rankest sort of fishing expedition in which Respondent engaged on a dragnet basis To illsutrate, the following were the questions which employees were expected to answer over their signature and return to Respondent by mail, marked "Personal" Who talked to you about joining union or voting for union? Where did he or she talk to you? When did he or she talk to you? Date and time. Did he or she promise you anything? What wild promises did he or she make? Did he or she threaten you in any manner? What pressure did he or she apply to get you to vote and to vote for the union? What did he or she say would happen to you in the future if you didn't vote for the union9 What did he or she say would happen to you in the future if the union won and you didn't vote for it? WINFIELD MFG. CO., INC. 739 Did he or she say anything to make you fell that you did not have a free and open choice as to how you would vote. What did he or she say? Did he or she say that you would be sorry if you did not join and vote for the union? Did he or she say that you would lose your job or get less hours of work if you did not join or vote for the union? Did he or she say your job would not be as good in the future if the union own, and you had not joined or voted for the union? Did he or she say that you might get hurt, beat up or whipped if you did not join or vote for the union The questionnaire concludes, following a blank space after the last question, with another section entitled, "Other Remarks." Then there is a place for a signature with instructions to return to Respondent. Questions such as these, calculated or tending to seek to ascertain the names of employees who supported and solicited votes in support of the Union, and seeking to elicit infor- mation concerning what had been an employee's state of mind are clear and obvious interferences with guaranteed rights under Section 7 of the Act They demonstrate quite clearly that at the time of distribution, Respondent had no valid basis for assuming that proper objections could be filed and that it was seeking only to generate in the minds of its employees states of mind which might prompt them to convert what might have been legitimate union campaigning into improper conduct For example, there is no proper foundation for the question, "What wild promises did he or she make?" nor for the question, "What pressure did he or she apply to get you to vote and to vote for the union9" nor for questions which seek to ascertain what was said about, "What would happen to employees in the future who did not vote for the union or if the union won." An employer may not probe into an employee's state of mind by asking whether things had been said or done to make him "feel" that he did not have a free and open choice as to how to vote or that he "would be sorry" if he did not join and vote for the Union By not taking up each and every question separately, I do not suggest that the others to which I have not referred necessarily are proper. I mention only these few because they are so clearly inconsistent with the approved procedure for gathering evidence and because, instead of minimizing, they increased "the coercive impact" of the interrogation. As was said in Automotive Warehouse Distributors, Inc., 171 NLRB No. 101, "Respondent has not complied, substantially or otherwise, with the safeguards sent forth in Johnnie's Poultry Co By failing to do so, Respondent has abused its privileges of interrogating its employees on matters involving their Section 7 rights and, thereby has unwarrantably intruded into their protected activities . . . D The Leaflet Entitled "Facts to Remember Excellent Reasons for Voting No in Thursday Election" This leaflet was distributed to the employees on the day before the election at the Winfield plant It is alleged that Respondent thereby threatened "its employees with loss of work and plant closure if the Union was successful in its organizational campaign." The leaflet contained a number of questions with answers supplied The very first question, "Who is the Amalgamated Union that is trying to represent you? is answered by a statement that it is the same union which represented the employees of two closed plants. The third question, "What type of people has the union assigned as their leaders?" is arswered by the statement that they "were around when Carbon Hill and Russellville [the two plants mentioned before] closed " Subsequent questions argued against the need for a union to obtain desirable wages and benefits These, standing alone, would not be objectionable (Lester Brothers, Incorporated, 142 NLRB 992, Appendix B, page 1016.) However, the employees are asked whether they ever heard of an employer like (Respondent's President) Mr Weistein, "who would risk" or "intentionally lose money, just to get work for his people." it is answered with the statement, "We doubt that you have." A similar question is asked as to whether the employees "know of one single garment plant in the state of Alabama that has never to this time, had a layoff or worked short hours?" The answer given says, "We know of only one.... Winfield Mfg. Company." The specific question, "If the plant became union what would Mr. Weinsten's personal attitude be?" is answered as follows, "He positively would not close the plant as long as profitable business was available. How- ever, how do you think he would feel about assuming uncalled for business risks just to keep the people in work? Under very competitive conditions such as we have now, how do you think he would feel about taking contracts at an intentional loss, or to break even, just to keep people in work9 These are big questions." The questions are indeed "big." They are blatantly rhetorical and permit of only one answer. Negative, even though they are preceded by the assurance that the plant, "positively would not close ... as long as profitable business was available." This very assurance is an assurance that the plant would close or the work would be cut down just as soon as profitable business was not available. This assurance is followed by the rhetorical questions which I have said permit only one answer. That single answer is that Respondent would not take any "uncalled for business risks," would not take any "intentional losses," and would not take any contracts which would only "break even" for the sole purpose of keeping people at work. The employees are told thus specifically that if the plant became union a past h actice of assuming business risks, accepting "break even" contracts, or even taking business "at an intentional loss," for the sole purpose of keeping them employed would be abandoned. The very next question following this one about what would happen if the plant were organized is, "What happened at Carbon Hill Mfg Co , and at Russellville Garment Factory that as soon as the union came in, the plants closed?" The answer given was, "We don't know, but it seems too coincidental that successful companies should go out of business as soon as Amalgamated Workers Union gets in " This is clearly a statement that organization of a plant by the Amalgamated results quickly :n the plant going out of business. There is nothing magic about the use of the words "too coincidental" that in any way makes the meaning doubtful. Respondent was telling its employees that it, just like the other "successful companies [would] go out of business as soon as Amalgamated Workers Union gets in." ("Coincidental" above would mean "remarkable for lack of apparent causal connection" but putting the "too" before it, "too coincident," makes it mean not without, but with causal connection) As alleged in the complaint, Respondent by utilization of 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this leaflet did indeed threaten "its employees with loss of work and plant closure if the Union was successful in its organizational campaign " CONCLUSIONS OF LAW 1 Respondent, Winfield Mfg. Co , Inc , is a corporation duly organized and existing under the laws of the State of Alabama with its principal office at Winfield, Alabama, and with plants located at Winfield and at Golden, in Mississippi, where it is engaged in the manufacture and sale of men's apparel It is and, at all times material herein, has been engaged in commerce within the meaning of Section 2(6) and (7) of the Labor Management Relations Act of 1947, as amended. The National Labor Relations Board has jurisdiction over it and of this proceeding 2 Amalgamated Clothing Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By soliciting its employees to abandon the Union, by preparing letters to be signed by them for the purpose of resigning from the Union, by distributing such letters to them for such signing, by threatening them that it would be futile for them to join the Union because union demands would result only in strikes, by threatening them that in the event the Union was successful it would discontinue its practice of soliciting marginal or unprofitable contracts to avoid loss of work and layoffs, by threatening them that if the Union was successful its plants inevitably would be closed, and by interrogating them concerning their union membership, activities, and desires and the union membership, activities, and desires of other employees, Respondent has engaged in unfair labor practices in violation of Section 8(a) (1) of the Act. 4. By failing and refusing to bargain collectively with the Union following its certification by the National Labor Relations Board as the exclusive bargaining representative of its employees in the production and maintenance unit as defined by the Board for its Winfield, Alabama, plant, Respondent has violated Section 8(a) (5) of the Act 5. Respondent's solicitation of its employees to abandon the Union, its threats to its employees, its coercive interrogation, and its failure and refusal to bargain collectively with the Union constitute unfair labor practices affecting commerce within the meaning of Sections 8(a) (5) and (1) and 2(6) and (7) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities and operations of the Respondent, as set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Since I have found that the Respondent has engaged in numerous unfair labor practices which cover a very wide area, it should be ordered to cease and desist therefrom and the order should include a broad, general cease-and-desist provision. Now, therefore, on the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby recommend the issuance of the following ORDER Respondent Winfield Mfg Co , Inc , of Winfield, Alabama, and Golden, Mississippi, its officers, agents, successors, and assigns, shall- 1. Cease and desist from (a) Soliciting its employees to abandon or resign from the Union (b) Preparing and making available to its employees any letters or statements intended to be signed by them or any of them whereby they may resign from or signify their resignation from or withdrawal from membership in any union. (c) Making any statements either in writing or by word of mouth that it would be futile for its employees to join Amalgamated Clothing Workers of America or any other union because demands by a union would not be met and would result only in strikes. (d) Making any statements either in writing or by word of mouth indicating or threatening that its practice of not laying off employees when profitable business was not available would be discontinued if any union were successful in a campaign to organize them. (e) Threatening its employees that they will lose work or that any plant or factory operated by it would be closed if a union succeeded in organizing them. (f) Interrogating employees regarding union matters or activities in a manner constituting restraint and coercion within the meaning of Section 8(a) (1) of the Act. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or such other mutual aid or protection, or to refrain from any or all such activity. (h) Refusing to bargain collectively with Amalgamated Clothing Workers of America as the exclusive bargaining representative of all the employees in the unit certified by the National Labor Relations Board in its order dated February 16, 1968, at its Winfield, Alabama, plant 2. Take the following affirmative action in order to effectuate the policies of the Act (a) Upon request, bargain collectively with Amalgamated Clothing Workers of America, the Union, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, for all the employees in the unit at its Winfield, Alabama, plant, as heretofore certified by the National Labor Relations Board. (b) Post at its places of business in Winfield, Alabama, and in Golden, Mississippi, copies of the attached notice marked WINFIELD MFG. CO., INC. "Appendix B "' Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's President Milton Weinsten, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to assure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.2 Iin 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 is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 2In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A TRIAL EXAMINER CHARLES W. SCHNEIDER'S ORDER GRANTING IN PART DENYING IN PART MOTION OF GENERAL COUNSEL FOR SUMMARY JUDGMENT Counsel for the General Counsel has filed a Motion for Summary Judgment with respect to the complaints, on the ground that admissions in the answer and documentary evidence attached to the Motion for Summary Judgment establishes that there are no issues of fact or law requiring hearing, and that the General Counsel is entitled to judgment In response to an order to show cause thereon counsel for the Respondent has filed a Statement in Opposition and a memorandum brief in support of the Statement No other response to the order to show cause have been received. 1. The Refusal to Bargain Issue The complaint alleges, inter aha, that the Respondent has refused to bargain with the Union in violation of Section 8(a) (5) of the Act, though the Union has been certified by the Board as the duly designated collective bargaining repre- sentative of certain employees of Respondent in an appropriate bargaining unit. The Respondent contests the validity of the certification. The record establishes that upon a Stipulation for Certification upon Consent Election executed by the parties and approved by the Regional Director an election was held on November 9, 1967, in Case No. 10-RC-7228 under the I Official notice is taken of the record in the representation case as the term "record " is defined in the Board Rules Sections 102 68 and 102.69(f) (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8 as revised January 1, 1965). 2 Howard Johnson Company, 164 NLRB No 121, Metropolitan Life Insurance Company , 163 NLRB No . 71. See Pittsburgh Plate Glass Company v . N.L.R.B, 313 U S. 140, 161-162 ( 1941 ), Sections 102.67 741 supervision and direction of the Acting Regional Director in which a majority of the employees in the appropriate unit designated the Union as their bargaining representative.' Upon timely Objections to the election filed by the Respondent the Acting Regional Director conducted an investigation and thereafter, on December 21, 1967, issued a Report on Objections in which he found that the objections raised no material or substantial issues effecting the results of the election, and recommended to the Board that the objections be overruled in their entirety and that the Union be certified as the collective bargaining representative in the appropriate unit Upon exceptions to the Regional Director's Report filed by the Respondent with the Board in Washington, D C., the Board on February 16, 1968, found that the exceptions raised "no material or substantial issues of fact or law which would warrant reversal of the Acting Regional Director's findings and recommendations, " and accordingly certified the Union as the collective bargaining representative of the employees in the appropriate unit. With respect to the refusal to bargain allegation of the complaint the Respondent admits the appropriateness of the unit, the election proceedings, the Union's request to bargain and the Respondent's refusal, but contends that the election was improper and void because the Respondent was required to furnish an election eligibility list, and that it was not required to bargain with the Union because of Union conduct interfering with the election and because the Board denied a hearing on the objections In its answer and in its response to the order to show cause the Respondent has also included an allegation not contained in its objections and exceptions in the representation proceeding, to the effect that prior to the election the Union sent prospective voters material stating that those who joined the Union would be covered by Union benefits, such as free insurance. The Respondent asserts that it is entitled to a hearing in order to introduce this evidence, which it terms newly discovered In the absence of newly discovered or previously unavailable evidence or special circumstances, it is established Board policy not to permit litigation before a trial examiner in an unfair labor practice case of issues which were or could have been litigated in a prior representation proceeding.2 This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial or material issues are raised by the objections.3 That no such issues were raised here by the Respondent's objections to the election and by its exceptions to the Regional Director's report thereon, has been decided by the Board. In these circumstances the Board's disposition of the representation matter constitutes the law of the case at this stage of the proceeding. The Respondent's assertion in its Statement in Opposition to the Motion for Summary Judgment to the effect that it is entitled to an opportunity to introduce assertedly newly discovered evidence bearing on the validity of the election is not substantiated. No explanantion is offered by the (f) and 102.69 (c) of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended January 1, 1965. 3 O.K. Van & Storage, Inc, 127 NLRB 1537, 297 F.2d 74 (C.A 5, 1961). And see N L R B v Air Control Window Products of St Petersburg, Inc, 335 F.2d 245, 249 (C A. 5, 1964) " If there is nothing to hear, than a hearing is a senseless and useless formality." 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent as to why this evidence, all of which involved conduct occurring prior to the election, and some consisting of material assertedly mailed to prospective voters prior to the electron, was not discovered or could not have been discovered during the pendency of the representation proceeding by the exercise of due diligence. The Respondent's offer is also too general in nature to warrant the conclusion that it is so substantial and material as to warrant reopening the investigation of the election.4 The refusal to bargain with the Union being conceded, the violation of Section 8(a) (5) is established, there is no issue relating thereto litigable before a trial examiner, and therefore no matter requiring hearing thereon The General Counsel's Motion for Summary Judgment as to the 8(a) (5) allegation of the Complaint and the 8(a) (1) allegation derivative therefrom is granted 2 The Leaflet and the Speech The General Counsel also contends that the pleadings and admissions by the Respondent establish additional violations of Section 8(a) (1) by the Respondent with respect to a leaflet and a speech The Respondent's distribution of the leaflet among its employees allegedly constituted threats and illegal interrogation and the speech to employees (by Respondent's president) unlawfully solicited employees to abandon the Union and threatened employees Copies of the leaflet and the speech are exhibits. The Respondent, though admitting the contents of the leaflet and the speech and the fact of distrrbutioii of the leaflet and delivery of the speech, denies the commission of unfair labor practices by such conduct On the existing state of the record I am unable to state that a violation of Section 8(a) (1) in regard to the leaflets and the speech has been established without opportunity for hearing being afforded The motion of General Counsel for summary judgment in respect to this aspect of the complaints is therefore denied. The issuance of more specific findings concerning the refusal to bargain and of a recommended remedy and order with respect thereto is deferred and referred to the Trial Examiner who conducts the hearing on the remaining allegations of the complaints, if such a hearing is held Such Trial Examiner may, in the light of this order and the entire record developed at the hearing, make appropriate further findings and conclusions and issue such recommendations as will in his judgment best effectuate the purposes and policies of the Act If no such hearing is held, I will entertain a motion to issue a Trial Examiner's Decision making further findings, conclusions and recommendations. 4 The evidence is thus stated in the Respondent's Statement in Opposition (1) That improper statements which required setting aside of the election were made prior thereto by persons who were agents and employees of the Union (2) That prior to the election the Union offered insurance to employees on terms condemned by the National Labor Relations Board in Wagner Electric Corporation, 167 NLRB No 75. As the Court said in N L R B. v. O K Van & Storage, Inc., 297 F 2d 74 (C A 5, 1961) " In order to be entitled to a hearing on its objections to an election , an objecting party must supply the Board with specific evidence which prima facie would warrant setting aside the election." The Respondent's offer here, if offer it is, does not meet that requirement APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL NOT threaten our employees that they will have less work if the plant in which they work is organized by a union. WE WILL NOT threaten that if our employees choose a union to represent them we will never meet its demands and that strikes will be the only result. WE WILL NOT threaten that we will stop any business practice we have had for the benefit of our employees if they choose a union to represent them. WE WILL NOT threaten our employees that if the plant in which they work is organized by a union it will be closed. WE WILL NOT question our employees in a way con- stituting restraint or coercion concerning any of the activities, statements, or conduct of other employees engaged in union activities or seeking support of a union in or after any election or organizing campaign. WE WILL NOT solicit our employees to revoke member- ships in, or authorizations given to, Amalgamated Clothing Workers of America, or any other labor organization. WE WILL NOT urge our employees to sign revocations of membership in, or authorizations to, any labor organiza- tion. WE WILL NOT prepare or make available to our em- ployees revocations of membership in, or authorizations to, any labor organization. WE WILL NOT refuse to bargain with the Amalgamated Clothing Workers of America as the exclusive bargaining representative of our employees in the Winfield, Alabama, plant for the unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL, upon request, bargain with Amalgamated Clothing Workers of America as the exclusive representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is. All production and maintenance employees at our Winfield, Alabama, plant, including plant clerical employees, but 'excluding office clerical employees, engineers, professional employees, guards, temporary employees, and supervisors as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union or any other labor organization WINFIELD MFG. CO., INC. (Employer) WINFIELD MFG. CO., INC. 743 Dated By If employees have any question concerning this notice or (Representative) (Title) compliance with its provisions, they may communicate directly with the Board's *'Regional Office, 730 Peachtree This notice must remain posted for 60 consecutive days Street, N.E., Room 701, Atlanta, Georgia 30308, Telephone from the date of posting, and must not be altered, defaced, or 526-5760. covered by any other material