Heckethorn Manufacturing Co.

302 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD Heckethorn Manufacturing Co. and International Union, United Automobile, Aerospace & Agricul- tural Implement Workers of America (UAW). Cases 26-CA-4544, 26-CA-4676, and 26-RC-4336 January 10, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On June 29, 1973, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,I and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified, and hereby orders that. Respondent, Heckethorn Manufacturing Co., Dyersburg, Tennes- see, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein: 1. Delete paragraph 1(b) and redesignate para- graph (c) accordingly. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the election in Case 26-RC-4336 conducted on October 27, 1972, be, and it hereby is, set aside, and that the case be remanded to the Regional Director for Region 26 for the purpose of conducting a new election in the appropriate unit at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] 208 NLRB No. 46 I The Respondent and General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of 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, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Administrative Law Judge that Respondent violated Sec. 8(a)(l) of the Act by interrogating and threatening certain employees, and that such conduct interfered with the exercise of a free and untrammelled choicd in the election We shall therefore set aside the election However, we do not agree with the Administrative Law Judge that, in the context of this case, the exhibition of the film, "And Women Must Weep," constitutes either a violation of Sec. 8(a)(1) or a sufficient basis for setting aside the election We shall revise his recommended Order and notice accordingly. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees concerning their union activities. WE WILL NOT threaten our employees with loss of jobs if the Union comes in. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. All our employees are free to become, remain, or to refrain from becoming or remaining, members of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), or any other labor organization. HECKETHORN MANUFACTURING CO. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: Upon separate charges filed on November 11, 1972, in Case 26-CA--4544 and on March 16, 1973, in Case HECKETHORN MFG. CO. 303 26-CA-4676, by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), hereinafter referred to as the Union or the Petitioner, the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, issued a consolidated complaint on April 12, 1973, against Heckethorn Manufacturing Co., hereinafter referred to as the Respondent or the Employer, alleging violations of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136) hereinafter referred to as the Act. A timely answer to the consolidated complaint was subsequently filed by the Respondent wherein it denied the commission of any unfair labor practices. In Case 26-RC-4336, based upon the representation petition filed by the Petitioner on August 28, 1972, and pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 26 on September 19, 1972, an election was held on October 27, 1972, among the production and maintenance employ- ees employed at the Employer's Dyersburg, Tennessee plant.' Thereafter, on November 3, 1972, the Petitioner filed Objections to the Election. Subsequently, on Decem- ber 14, 1972, the Acting Regional Director, after having conducted an investigation of the objections, issued a report on objections. In his Report, the Acting Regional Director found that Objection 5 raised issues which may best be resolved on the basis of record testimony, and recommended to the Board that Objections 2, 6, and 7 be sustained, that Objections 1, 3, and 4 be overruled, and that the election be set aside and a second election be directed. On January 9, 1973, the Employer filed timely exceptions to portions of the report on objections. On February 1, 1973, the Board issued its order directing hearing, wherein it found that Objections 2, 5, 6, and 7 raised substantial and material issues of fact with respect to conduct affecting the results of the election and ordered that a hearing be held for the purpose of receiving evidence to resolve issues raised by the Employer's exceptions with respect to the Petitioner's Objections 2, 5, 6, and 7. Subsequently, on April 12, 1973, the Regional Director issued an Order consolidating Case 26-RC-4336 with Cases 26-CA-4544 and 26-CA-4676, for the purposes of hearing, ruling, and decision by an Administrative Law Judge. Pursuant to said order and notice of hearing, a hearing on the consolidated complaint, as amended at the hearing, and on other representation matters alluded to above in Case 26-RC-4336, was held in Dyersburg, Tennessee, on May 1-4, 1973. All parties were represented by counsel, and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument.2 Subsequent to the close of hearing timely briefs were submitted by counsel for the General Counsel and the Respondent. Upon the entire record in this case, and based upon my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Heckethorn Manufacturing Co., a corporation with an office and plant located in Dyersburg, Tennessee, is engaged in the manufacture of ventilated seat cushions and certain items for the United States Department of Defense. During the 12-month period immediately preceding the issuance of the consolidated complaint herein, the Respon- dent received goods and materials valued in excess of $50,000 directly from points outside the State of Tennessee. During the same period, the Respondent sold and shipped goods and materials valued in excess of $50,000 directly to points located outside the State of Tennessee. The parties admit, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND CONDUCT AFFECTING RESULTS OF ELECTION A. The Issues 1. Whether, on one or more occasions during August, September, and October 1972, the Respondent, through one or more of its supervisors, engaged in interrogation, threats, or other unlawful conduct within the meaning of Section 8(a)(1) of the Act. 2. Whether, in early October 1972, the Respondent withheld from its employees a customary annual wage increase and informed his employees that it was being withheld because of their union activity in violation of Section 8(a)(1) of the Act. 3. Whether, in exhibiting a movie to its employees entitled, "And Women Must Weep," the Respondent violated Section 8(a)(1) of the Act. 4. Whether, in failing or refusing since November 1972 to recall to their former positions of employment laid-off employees Gaylon Pease and Bill Henry, the Respondent did so because of their having engaged in union activities in violation of Section 8(a)(3) of the Act. 5. Whether the results of the election conducted on October 27, 1972, among the Respondent's employees should be set aside. 1 The tally of ballots issued by the Regional Director reveals that the Petitioner failed to receive a majority of the votes cast in the unit comprised of "All production and maintenance employees, including plant clerical employees and research lab technicians, employed at Heckethorn Manufac- turing Company's Dyersburg, Tennessee plant, excluding all laid off employees, office clerical employees, watchmen . guards and supervisors as defined in the Act " 2 At the outset of the hearing I denied the Respondent's motion to sever and dismiss on procedural grounds Case 26-CA-4676, involving the 8(a)(3) allegations herein 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Facts 1. Alleged 8(a)(1) conduct a. W R. Heckethorn's speech On October 26, 1972,3 the day before the election, W.R. Heckethorn, the Respondent's president, made a speech to his employees who were assembled in the plant cafeteria in groups of approximately 30 employees. During the course of discussing several matters, Heckethorn told his employ- ees that there were very few people whom he totally disliked, but that C.E. Strickland, union representative, was one, and, reading from a prepared note card, stated that "As a Company we will abide by the law and bargain in good faith with the Umon, but no law can make me like that man or sit down across the table from him." Seven employee witnesses for the General Counsel corroborated Heckethorn's testimony in this regard, several of whom also testified on cross-examination that it was clear that Heckethorn was talking about himself and not about the Company. As the General Counsel's own witness, employ- ee Ivy Clark testified Heckethorn stated that if the Union won the election the Company would bargain in good faith and that he would turn over the job of negotiating to another company official. Thus, the record contains no credible evidence to support the General Counsel's assertion and the complaint allegation that, on this occasion, Heckethorn announced to the employees the Company's intention to refuse to bargain with Strickland in the event the Union was certified as the bargaining representative. b. Alleged conduct of Robert Strickland On several occasions during the months of September and October, Respondent's production manager, Robert Strickland, had conversations with employee Fannie Mae Johnson at her machine concerning employee union activities. During the first of these, when Strickland stopped by her work station, Strickland asked Johnson to do him a favor and talk to employee Emma Koonce, to tell her to stop talking about the Union, that people on the second shift were pretty well satisfied with things as they were. Johnson, a close friend of Strickland, agreed to his request. On a second occasion Strickland told Johnson that employee Lonny Powell was loud-mouthing about the Union and attempting to get people to vote for the Union. Strickland asked Johnson to speak to Powell and see if she could stop him. Still a few weeks later, in October, Strickland asked Johnson if she knew how employee Joan Woodside felt about the Union, and then asked her to find out and let him know. Johnson again agreed. On a fourth occasion in October, Strickland approached Johnson at her machine and asked her what had Louise Ketcherson so uptight about the Company and whether she were going Union. When Johnson answered that she did not believe this to be the case, Strickland asked her to find out for him and let him know. And again, on another 3 Unless otherwise noted, all dates hereinafter refer to the year 1972 4 1 do not find, however, as alleged in the same paragraph of the occasion, about 2 weeks before the election, Strickland asked Johnson how employee Wilma Everston felt about the Union. Johnson, a relative of Everston, told Strickland that he would have to talk with Everston himself, as she would not have anything to say to her one way or the other about the Union. On each occasion, after talking with the employee involved, Johnson told Strickland that she had done so and reported to him what the employee had said. Strickland admitted talking with Johnson on a number of these occasions concerning some of these employees,' and receiving Johnson's report after talking with the employees, but testified that they occurred in August before the election petition was filed, and that the discussions were instigated by Johnson, a close personal friend who volunteered to talk with the employee involved because of her concern about the union activities of other employees. Strickland admitted, however, relaying the information imparted by Johnson to other supervisors shortly after each occurred, including Personnel Manager Gerald Hamm. Strickland's version of these conversations and the alleged motivation of Johnson for talking with the various employees does not ring true. The fact that Strickland made use of the information once received, coupled with a favorable impression of Johnson's demeanor while testify- ing, leads me to give credence to her testimony, including her recitation of the timing of the incidents. That such conduct is unlawful is obvious. I find, as alleged, that the Respondent through its supervisor, Bob Strickland, en- gaged in unlawful interrogation within the prohibition of Section 8(a)(1) of the Act. c. Alleged conduct of Ernest Simpson Approximately I month before the election, placing it during the latter part of September, employee Ivy Clark went to Foreman Ernest Simpson's office to get a Band- Aid. While there Simpson, in a polite way asked him what he thought about the Union. Clark replied that he did not think that he had anything to worry about, that he had heard only a couple of people say anything about it. As Simpson did not testify, Clark's testimony as to this stands unrefuted. Isolated or not, no justification exists for Simpson's conduct in querying Clark about the Union in the confines of his office shortly before an election. I find, as alleged, that such interrogation is unlawful and violative of Section 8(a)(I).4 i d. Alleged conduct of Marvin Early A week or so before the election, Marvin Early, manager of quality control, approached employee Danny Ing in the warehouse. Early stated to Ing that he always thought that he was a pretty smart boy until then, mentioned the Union, and volunteered that the Company would do as much for the employees as it could but "If the Union came in, he guaranteed there wouldn't be any jobs." A day or so later, in the projectile department, in talking with Ing again, Early said that he thought this year the employees would get the best pay raise they had received complaint, that this interrogation created the impression of surveillance HECKETHORN MFG. CO. in a long time. Later, in passing by, Early said to Ing, "Think about it, Danny." Early admitted bringing up the subject of the Union with Ing on one such occasion, stating that he would like to talk to him about the Union, and then, for about 20 minutes, giving Ing the benefit of his thoughts against the feasibility of having a union at Heckethorn. In testifying in detail as to what he did tell Ing, Early denied the specific remarks attributed to him by Ing. With respect to the crucial one, Early's version is that he told Ing that the Company would do as much for the employees as it was able to do "without any outside pressure," and that "The Company would not be put in a position of being forced into bankruptcy by having to pay higher wages than it was able to pay." Early, when questioned on cross-examination, admitted that if the Company were forced into bankruptcy this would mean a loss of jobs. I credit Ing's testimony as to these conversations. For a supervisor to initiate a union conversation with one of his employees on the eve of an election, and to spend 20 minutes expounding against the union is to invite the type accusation here leveled at Early. I am of the opinion that Ing's testimony reflects his understanding of that which Early discussed during these conversations. Accordingly, in crediting Ing, I find that Early engaged in conduct constituting an unlawful threat of loss of jobs if the Union came in, clearly a violation of Section 8(a)(1) as alleged in the complaint. e. Alleged conduct of Clyde Whittle A week or two before the election , Foreman Clyde Whittle talked with employee Thomas Rigsby in the plant. After asking him whether he thought the Company needed a union, Whittle related his experiences while working at American Metals in Union City, which involved the necessity of employees having to look for other employ- ment because the Union, the same one involved here, had gone out on strike. Whittle was not called as a witness, and therefore Rigsby's testimony stands unrefuted. In finding that Whittle, on this occasion , did interrogate Rigsby concerning whether he thought the Company needed a union as alleged to the complaint. I also find, consistent with Rigsby's denial on cross-examination, that Whittle did not threaten him with the loss of his job if the Union came in . It is recommended that the portion of the complaint alleging a threat on the part of Whittle be dismissed. 305 Respondent's director of personnel and planning, exhibited to employee departmental groups of 30-35 employees the movie entitled, "And Women Must Weep." On this day, between 7 a.m. and 4 p.m., employees were advised by their supervisors to go to the cafeteria, where they were told that the film represented a situation that occurred at the Perfect Circle Co. in Princeton, Indiana, that profes- sional actors were used, and that it was not the actual representation and was not the same union. The employees were then told that their viewing of the film was voluntary, and that anyone who did not wish to see it was free to leave. Of 280 or 290 employees, 1 employee left. After each viewing,a Kelt told the employees that the movie reminded him of a situation in which C.E. Strickland (union representative) was involved at Union City, and that the only guarantee that they had that this situation might not occur at Heckethorn was to vote "no" in the election the next week. At that point, the employees returned to their work stations. While it is recognized that the exhibiting of the film "And Women Must Weep" is not a per se violation of the Act,6 a split Board does hold that, against a background of demonstrated union animus and the presence of other unlawful conduct by the employer, its showing constitutes a violation of Section 8(a)(1) of the Act.7 Apart from the unlawful interrogation and threat by Respondent's supervi- sors herein found, the extensive campaign literature distributed by the Respondent in the form of leaflets simultaneous with the showing of the film, while not unlawful in itself, makes reference to problems created by unions and the extensive difficulties faced by striking employees. One such leaflet, for example, contains the admonition that "IF THE UNION STRUCK to try to force us to agree to their demands, you could be replaced by a new employee-that's what happened to `Slick's' strikers at Union City." 8 This, coupled with the Respondent's continued reference in its literature and at the conclusion of each showing of the film to the violent American Metals strike situation some years back at nearby Union City and the possibility of this occurring at Heckethorn, clearly demonstrates the union animus of the Respondent. Predicated upon Board precedent,9 I find under the circumstances that the Respondent's showing of the film "And Women Must Weep" a week before the October 27 election is violative of Section 8(a)(1) of the Act.10 f. "And Women Must Weep" Approximately 1 week before the election. Lloyd Kelt, 5 It was stipulated by the parties that the movie involved is the same movie. "And Women Must Weep" to which the Board referred in Spartus Corporation, 195 \LRE 134, and Luxuray of New York Division of Beaune Corporation, 185 NLRB 100 6 In fact, by itself, the showing of the film has been held, and properly so, to be an exercise of the right of free speech protected by Section 8(c) of the Act Southwire ('onipany v. N L R B, 383 F 2d 235 (C A. 5, 1967) 7 Southwire Company. 159 NLRB 394, Hawthorn Company, a Division of Kellwood Company, 166 NLRB 251, l.uxuray of New York Division of Beaunit Corporation, supra, Speed Queen, a Division of McGraw-Edison Co.. 192 NLRB 995. 11 The "Slick" alluded to above, and throughout the various leaflets distributed by the Company, is C E. Strickland, the union representative involved in the organizing campaign at the Respondent's plant 9 Inter alia, see Spartus Corporation, supra, and Luxurav of hew York Division of Beaunit Corporation, supra in For the view shared by Chairman Miller among others, that free speech is not rendered unprotected by other improper conduct, seg the court decisions in Southwire Company v. N LR B , supra, N LR B v Hawthorn Company, a Division of Kellwood Company, and New Haven Manufacturing Company 404 F.2d 1205 (C A 8, 1969), Kellwood Company, Ottenheimer Division v N L R B, 434 F 2d 1069 (C.A 8, 1970), Luxurav of New York Division of Beaunit Corporation v. N.LR B. 447 F 2d 112 (C A 2, 1971). 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD g. Withholding of annual wage increase Going back at least to 1964, each fall the Respondent has granted a general wage increase to its employees." In 1972, the period here under consideration, the Respondent admittedly held up the granting of the annual wage raise until after the holding of the October 27 election. By letter given out to all plant employees, dated October 30, Heckethorn noted the favorable results of the balloting, expressed his appreciation for the vote of confidence, indicated that he would continue to do his best to provide jobs and paychecks for them in the future, and stated that "-Now that the election is over-I am pleased to announce a wage increase of 20 cents per hour, retroactive to October 2, 1972." Testimony by several employee witnesses indicates that they had expected the raise to be granted around the first of October. Testimony from these same employees also indicates that it was commonly known that it was the Company's position that it would have been illegal to grant the increase while an election was pending, and in fact, could have been considered a bribe to have granted it before the election. Employees Rigsby and Edna Fulcher testified that Foreman Whittle and Arthur Cook, respec- tively, told them that if the Company were to grant the wage increase before the election it could be considered bribery. A resolution of whether, in holding up a wage increase until after the election, an employer violated the Act, is most difficult under existing Board cases. On the one hand, the Board rules that an employer's legal duty is to proceed as he would have done had the union not been on the scene. Thus, in Gates Rubber Company, 182 NLRB 95, the Board found the company, which had withheld increases that normally would have been granted but for the presence of the union and the pendency of the election, to have violated the Act. In a later case, The Singer Company, Friden Division, 199 NLRB 1195, the Board reversed the Trial Examiner who had followed this rationale and had found that promotions had been unlawfully withheld on the ground that the company would have granted them but for the advent of the union. On the other hand, it is extremely difficult for an employer to so proceed, i.e., as if the union were not in the picture, for, under a long line of cases, to do so and to grant benefits during the pendency of an election an employer risks being charged with interference with the election, as well as with unfair labor practice conduct. In the present case, three things stand out. One, the facts reveal that, while the Company had made no promise of a wage increase in 1972, at some point between the end of September and the first of December each year for the prior 8 years the Company had granted a general wage increase. Two, the 1972 increase, as in 1965, admittedly 11 Company records reflect that such increases were granted as follows was held up until after the election because of the Company's position that to do otherwise would have been illegal and could be considered a bribe, a position known to the employees. And three, there is no credible evidence indicating'in any way that the Company used the increase postponement to influence the employees in the election, or that the Respondent's decision to withhold was calculated to do so.12 The facts are not totally unlike those present in The Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645, where there had been no promise of a wage increase and the employees simply were aware that increases had been given in the spring of previous years, the Board holding therein that the postponement of the wage increase without an explanation therefore and at a time when the union's organizing campaign was about to be resolved in an election was not violative of the Act. The important factor here, as in A & P and in The Singer Company, where the Board, in finding no violation, relied upon the fact that the employer had not withheld reclassifications in the context of antiunion propaganda, is that there is no indication that the Company intended the withholding of the wage increase to have an effect upon the outcome of the election, or that the employees believed such to have been the case. While in the cited cases the Board upheld its determina- tion on several factual grounds, in each it concluded with what I consider the true test in this area. Thus, in A & P the Board closed by stating, "In reaching this conclusion we specifically note that there is no evidence to indicate that Respondent in any way sought to capitalize on the absence of a wage increase by connecting the absence with the union or the employees' support of the union." And, in The Singer Company, it concluded, "In the circumstances, we do not believe that the employees could reasonably conclude that the employer's postponement of promotions or reclassifications was intended to influence organization- al activities.. . . The Respondent herein, I find, satisfies both of these tests. Accordingly, I find that in withholding its annual wage increase until after the October 27 election and making it retroactive to October 2 the Respondent did not violate Section 8(a)(l) of the Act. 11/1/64 9/29/69 12/3/65 10/5/70 10/3/66 11/15/71 10/30/67 11/3/72 9/30/68 h. Alleged conduct of Cooley Cook Employee Lois Taylor testified that around October 1, while at their work table with several other employees, employee Imogene Myers asked Supervisor Cooley Cook why the employees were not getting the pay raise. Cook allegedly replied "If you hadn't started this damn s-you would have already got it." Lois Taylor could not recall who the other employees were. As to this asserted incident, Shirley Taylor also testified that Cook made this reply to Myers. Cook denied making such a statement. I credit In 1965 and 1972, Board elections havmE been conducted in both years, the increases were mane retroaurve to Novemoer I and October 2. respec- tively. 12 The only testimonial assertion to the contrary is discredited, as hereinafter noted. HECKETHORN MFG. CO. Cook's denial. First, because I felt he testified truthfully. Second, because Lois Taylor, admittedly one of the leading union adherents, did not mention this incident in either of her two affidavits given to Board agents at the time of their investigating this matter and unconvincingly testified that she did not because the Board agent asked only if anyone had said something to her about a wage mcrease.13 Thirdly, because Shirley Taylor, when finally pinned down on cross-examination after being confronted with her affidav- it, reluctantly contradicted Lois Taylor, testifying that Lois Taylor was not present when Cook allegedly made the remark. Apart from the existence of other reasons for discrediting both Taylors and the fact that not until after the hearing had opened was the complaint amended to encompass this asserted incident, I find the story to have been a fabrication and that Cook did not make the statement attributed to him. Accordingly, the complaint allegation in this regard was not proved. 2. Alleged 8(a)(3) conduct In early January 1972, Billy Henry and Gaylon Pease, the two alleged discriminatees herem.14 with a few other employees, attended a union meeting at the Holiday Inn. Pease, who had obtained some 200 union authorization cards from Organizer C.E. Strickland, gave out cards to a number of the employees, including about 50 to Henry.i5 Subsequently, Henry and Pease passed out cards to employees, each successful in signing up about 30 employees. This activity took place at the plant at different times throughout the work day. In addition to passing out cards and attending a few additional meetings at Pease's home, Henry testified that both he and Pease jokingly asked Supervisors Cooley Cook and Clyde Whittle on a number of occasions if they wanted a union card to fill out, each one jokingly refusing the offer.16 It is also apparent from Henry's testimony that three-quarters of the employees in the toolroom, where Henry and Pease worked, signed union cards and that one half of them spoke out openly on behalf of the Union. Pease also testified that one evening in early February, as he and Henry were leaving the plant, he approached Foreman Gerald Cole on a nonunion matter. During the conversation Cole said that he had heard that he (Pease) was working for the Union and wondered what the possibilities were of a union coming into the plant. Pease replied that he thought they were good and that he intended to work hard to see that one did. On another occasion in early February at a local cafe, according to Pease, Foreman Ernest Simpson asked Pease why he was working for a union. Pease answered that he believed in unions, that he had been a member of the UAW in the 13 Other of her testimony on this was not worthy of belief Indeed, my appraisal of Lois Taylor is that, had the statement in fact been made by Cook or anybody else, she would have jumped at the opportunity to volunteer the information during her investigative interview 14 The alleged discrimination as to both employees involves the Respondent's failure to recall them in and since November 1972, following a plantwide economic layoff the prior February 15 Other employees receiving and subsequently distributing cards were John Bradley, on the second shift, Thomas Rigsby, and James Ramsey. 16 Pease testified that Whittle, who had indicated to Henry that he was in 307 past, and that he felt Heckethorn needed one because of the working conditions in the plant.17 It is apparent that the Company was aware of the fact that both Henry and Pease were union adherents, and I so find. However, there is no evidence that the Company was knowledgeable as to the extent of their activities on behalf of the Union, or that they were any more active than some of the other employees. a. Refusal to recall Gaylon Pease Gaylon Pease was employed by the Respondent as a Class "B" tool-and-die maker in the tool-and-die depart- ment from April 1969 until the mass general layoff on February 25, 1972. At the time of the plantwide layoff the tool-and-die department employed approximately 25 em- ployees under department supervisor, Bill Hudson, 13 of whom were caught in the economic layoff. Pease, like the rest of the employees, was advised of this by way of a letter handed to him the day before. Pease was also notified of the layoff at that time by Hudson's boss, Chief Engineer William Dowling, who gave Pease a very fine letter of recommendation. The following Monday, February 28, Pease went to work at Phillips Tool & Die Company, Halls, Tennessee, some l1 miles from Dyersburg, procuring the job through his friend and owner, Odis Phillips. Pease remained at Phillips Tool & Die for about 8 weeks, when, toward the latter part of April he moved to Memphis, Tennessee, where he went to work for Craft Machine Co. Pease stayed at Craft Machine in Memphis until November 6, when he left and went back to Phillips Tool & Die. He remained at Phillips until January 1973, when he went to work at Oldberg Manufacturing Co., where he was employed at the time of the instant hearing. Having received word on Tuesday, November 7, that the Company needed to recall two tool and die employees right away, Gerald Hamm, employment manager, and Bill Hudson went through a complete list of tool and die employees who were on layoff by seniority with the Company.18 After contacting or attempting to contact on November 9 and 10 according to seniority all of the 11 employees then on layoff status, Hamm and Hudson recalled Charles Edens, a class "B" tool and die man, and Dorman Beard, a class "A" machinist, both of whom reported for work the following Monday, November 13. In going down the list, after contacting William McGuire, who had top seniority, and being turned down, Hudson attempted to call Pease, the second high man on the class "B" tool and die list.i9 He used the telephone number listed on the company personnel records and the last known number the Company had for him, receiving a recording indicating that the number reached was not in favor of the Union, accepted a card from him. it Ac neither of these incidents, relied upon by the General Counsel to establish company knowledge, is alleged in the complaint as a violation. I make no finding with respect to them. is Of the 13 employees laid off on February 25, Joe Webb, the employee with the most seniority, had been recalled the prior April 24. and Billy Henry. for reasons hereinafter set forth , was not considered for recall. McGuire, the record reflects, like Pease, was known to be an outspoken union adherent 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD service. Hamm took the telephone and called the operator, and was told that the telephone had been disconnected. Hamm then asked if she had another number for him and was told that she did not. At this point, Hamm and Hudson recalled that in July Mrs. Pease had been to the plant inquiring about a workmen's compensation check and indicated then that she was leaving the area, but had refused the Company's request to leave a forwarding address. They also recalled at this time that they had learned indirectly from one of their employees early in September that Pease no longer was employed at Phillips Tool & Die and had moved to Memphis. Thus, without knowledge of Pease's wherea- bouts or how to get in touch with him, coupled with a current need to fill the two positions, the two company officials went to the next man on the list. The record contains considerable testimony relating to Pease and his whereabouts during this period, as well as conjecture as to what the Company might have done in the way of increased efforts to locate Pease on November 9. The long and short of it, however, is that by his own admission, when Pease left the Respondent's employment he severed all connections with the Company and with everyone else in the Dyersburg area, and did so with intent. Thus, even before leaving Heckethorn, Pease had had his telephone taken out and had given the Company no new telephone number. Upon moving to Memphis he did not have a telephone and purposely gave no one his address or his office number, because "I was trying to keep my particular address in Memphis as quiet as possible." 20 Pease did claim that he had called Hudson and Hamm on several occasions between the layoff and the date of recall inquiring about the possibility of recall. I discredit his testimony in this regard completely. First, it is incongruous that, had he talked with them, he would not have told them how to reach him-as he so testified at one point. Secondly, he contradicted his earlier affidavit in this regard, in which he had stated that the subject of recall did not come up during two particular conversations with Hamm and with Hudson. Further, Pease changed his testimony several times while on the witness stand, and contradicted his pretrial affidavit with respect to two matters . Finally, Hamm and Hudson, both of whom testified in a forthright manner, denied ever talking to Pease during this period concerning recall, Hudson specifically refuting Pease's testimony that he called Hudson to tell him that he was working at Craft Machine in Memphis. I credit Hudson's testimony that at no time did Pease ever tell him he was in Memphis.21 Thus, it is abundantly clear, even admitted by Pease, that at no time during the layoff period did he submit to the Company either a mailing address or a telephone number where he could be reached in the event of a recall. Under 20 Pease admitted that he had a substantial amount of debt during this period and that he was not interested in his creditors knowing his whereabouts He also had separated from his wife while in Memphis . taking a separate apartment , and wanted to keep this quiet 21 Hudson credibly testified that the only telephone call he ever had from Pease was one to his home about 6 weeks after the layoff when Pease called him to obtain the telephone number of employee Buddy Hassell in connection with a problem at Phillips, during which conversation no mention was made of recall I do not credit Pease's testimony on crucial these circumstances, I find that the Company did all that it could reasonably be expected to do at the time, particularly with its awareness that Pease had in fact left the area.22 I find that the General Counsel has failed to prove by a preponderance of the credible evidence that, in failing to recall Gaylon Pease in November or since, the Respondent violated Section 8(a)(3) of the Act. b. Refusal to recall Billy Henry Billy Henry first went to work for the Respondent on September 23, 1968, spent a hitch in the Army between August 1969 and May 1971, and returned to his class "A" machinist job in the tool-and-die department in August 1971 where he was employed at the time of his layoff on February 25, 1972. On Thursday, February 24, Henry, along with other employees, was personally informed of the layoff by Chief Engineer Dowling, who that week was substituting for Department Foreman Hudson. The following day. Dowl- ing made assignments to both William McGuire and Henry, each one charged with doing a special machine job. Although each involved a piece of steel approximately 8 inches by 6 inches in size, they were different projects based upon a different set of blueprints. During the course of the day Henry was observed by three people stamping on the side of his metal block. Later, at one time or another, all three, employees Lawrence Hassell and Thomas Jones, and Supervisor Dowling, saw Henry's piece in the grinding room, with the inscription "F-you, White Eyes" imprinted on the side. 23 Still later, when Hudson returned to the plant, Dowling told Hudson to go into the grinding room to see what Bill Henry had left him. Upon looking at it, Hudson's reaction was "the man that did this will not be coming back to this Company as long as I'm here." 24 The record contains considerable testimony on this matter, some of which would indicate that it was McGuire rather than Henry who was guilty of the act. Henry testified that he did not do it and McGuire testified that he (McGuire) stamped "White Eyes M. F" on his block. In this regard it would appear that McGuire, a strong union adherent who subsequently said "hell, no" to Hamm's offer of recall, was attempting to take the blame for the insubordination. First, four witnesses, whom I find to be credible, testified that the block they saw had "F-you, White Eyes" or "F-you, White Eyes, M.F." on it. McGuire denied stamping this language on his plate. Secondly, contrary to the testimony of Henry to the effect that he did no stamping that day, three of these witnesses testified that they saw Henry stamping and also testified that they saw no one else stamping. Thirdly, Hassell, whom I credit, testified that just before the shift ended at 3:15 p.m., he saw McGuire's block and nothing had been matters to the extent that it is not corroborated by other credited testimony 22 Hamm and Hudson had the same experience with two other employees on the list, John Bradley and James Rushing, whom they could not reach because of their telephones having been disconnected , with no further attempts made to contact either of them 24 This was a vulgar and uncomplimentary term used by many of the employees in referring to Hudson 24 Hudson was also apprised the following Monday by Hassell of the fact that Henry had done the stamping on the block HECKETHORN MFG. CO. stamped on it. Finally, some time later on, after Henry learned that he was being charged with stamping this foul language on the block, he at no time, even at McGuire's suggestion, went to the Company to deny that he was the person responsible. Henry, on several occasions while testifying, changed his testimony on important matters. I was not convinced then or now that his testimony reflects the truth.25 Shortly after this incident Hudson apprised Hamm of what had occurred, indicating that Henry would not be recalled, and telling Hamm that, if he ever should be, he (Hudson) would leave. Thus, on November 9, when Hamm and Hudson made up the list of laid-off employees eligible for recall, Henry was left off.26 The following night, having heard of the recall, Henry called Hudson and asked him about his chances of being called back. Hudson let him know that anyone who used derogatory remarks about him in public like that would not be called back by him. According to Hudson, whom I credit, Henry admitted that he had made the derogatory remarks, apologized, and asked Hudson if there were any way he could make it up. Hudson replied that, as far as he was concerned, there was no way, but it was all right with him if he wanted to go over his head to Kelt or Dowling. On Monday, November 13, Henry went to see Dowling, who told him that he had talked with Hudson and that he agreed with him that Henry would not be recalled because of the note to Hudson that he had left on his project the last day of work. In reply to Henry's inquiry concerning a letter of recommendation, Dowling said he could not give him one. Henry then asked whether, in the event someone should call, Dowling would refrain from telling him about the part. Dowling replied that in such event he would only answer what he was asked.27 Whether or not, as asserted by the General Counsel, the Company's refusal to recall would appear to be harsh treatment for an incident such as this, such a determination is not before us. If in fact, as I find, it is the real reason for the Respondent's decision, and is not motivated by discriminatory considerations, as I also find, its justifica- tion or lack thereof is of no moment. Under all the circumstances, I find that the General Counsel has failed to prove by a preponderance of the credible evidence that, in refusing to recall Billy Henry in November or since, the Respondent violated Section 8(a)(3) of the Act. IV. THE OBJECTIONS TO THE ELECTION As heretofore set forth, the Petitioner filed timely objections to the election and, following the Acting Regional Director's issuance of a report on objections, the Employer filed timely exceptions to portions of his report. The Board thereafter issued its order directing heanng in which it ordered that a hearing be held for the purpose of receiving evidence to resolve issues "raised by the 25 In this regard, unexplained to my satisfaction, is the fact that, during the investigation of earlier charges in this matter and at a time when Henry was aware of the Company's asserted reason for not recalling him, in neither of two affidavits given by Henry to the Board did he mention the assertion that it was McGuire who was the person responsible for the obscene stamping 26 it is conceded that, had Henry been subject to recall, as senior man in his classification on layoff he would have been called back 309 Employer's exceptions" to the report with respect to Objections 2, 5, 6, and 7 These objections are as follows. 2. The Company President stated in his captive audience meeting of October 26, 1972, that he would not negotiate a contract with the Union if it was voted in. 5. Supervisors interrogated, threatened, and har- rassed [sic] employees as to their union sentiments. 6. The Company withheld a pay increase due the employees on or about October 1, 1972. 7. Through the use of films, literature, and speeches the Company ran a campaign of fear based on strikes and violence, and subsequent loss of jobs if the Union was voted in. The Employer's exceptions attacked the Acting Regional Director's refusal to hold a heanng on Objections 2, 5, 6, "and the portion of Objection 7 dealing with the showing of the film," "And Women Must Weep." Having found that Company President W.R. Hecket- horn, in his speech to employees on October 26, 1972, did not state that the Company would not negotiate a contract with the Union if it were voted in, and, in fact, stated just the opposite, I shall recommend that Objection 2 be dismissed. Having found that the Employer, in withholding its wage increase until after the election, did not engage in unlawful conduct, I shall recommend that Objection 6 be dismissed. Having found, however, in showing the film, "And Women Must Weep," when viewed against the back- ground of demonstrated union animus and the presence of other unlawful employer conduct, that the Employer engaged in 8(a)(1) conduct, I find that such interferes with the exercise of a free and untrammeled choice in an election, and therefore that there is merit to that portion of Objection 7. Having further found that Supervisors Robert Strickland, Ernest Simpson, and Clyde Whittle engaged in unlawful interrogation of employees, that Supervisor Marvin Early engaged in conduct constituting an unlawful threat of loss of jobs, and that such conduct occurred subsequent to the filing of the representation petition, I find that such conduct also interferes with the exercise of a free and untrammeled choice in an election, and that there is merit to Objection 5. Accordingly, I shall recommend that the representation election held on October 27, 1972, in Case 26-RC-4336, be set aside. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to 27 Henry testified that during this conversation , Dowling, who acknowl- edged having talked with Hudson. told him that he was not being recalled because of the parts that he had scrapped out and the bad taste that he and Pease had left in the Company's mouth Apart from a lack of corroboration on this by Dowling, on cross-examination , Henry clarified this by testifying that he supposed Dowling was talking about the way "both of us talked about Hudson " Henry acknowledged that nothing was said concerning the Union. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor disputes burdening and obstructing commerce and the free flow of commerce. Vi. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Heckethorn Manufacturing Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their union activities, threatening their employees with loss of jobs if the Union won, and showing the film, "And Women Must Weep," the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER28 The Respondent, Heckethorn Manufacturing Co., its officers, agents, successors, and assigns, shall: 28 in the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes 1. Cease and desist from: (a) Interrogating its employees concerning their union activities and threatening employees with the loss of jobs if the Union won the election. (b) Showing the movie "And Women Must Weep" to its employees. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their nght to self-organization, to form, join, or assist any labor organization, and to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places at its Dyersburg, Tennes- see, plant, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix."29 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by an authorized representative of the Respondent, shall be posted by it, as aforesaid, immediate- ly upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. IT IS ORDERED that the complaint herein be dismissed so far as it alleges violations of the Act not specifically found. IT IS RECOMMENDED that Objections 2 and 6 be dismissed as without merit. IT IS FURTHER RECOMMENDED that Objections 5 and 7 be sustained, and that the representation election held on October 27, 1972, be set aside. 29 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."