M. Lowenstein & Son, Inc.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Huntsville Manufacturing Co., a subsidiary of M. Lowenstein & Son, Inc. and `Communications Workers of America, AFL-CIO Huntsville Manufacturing Company and Communica- tions Workers of America, AFL-CIO, Petitioner. Cases 10-CA-10062, INCA-10260,10-CA-10287, and TOLRC-9564 May 31, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 13, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the Respondent and the Charging Party filed exceptions and supporting briefs; and the Respondent filed a reply 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, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' 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, with a modification, and hereby orders that the Respon- dent, Huntsville Manufacturing Co., a subsidiary of M. Lowenstein & Son, Inc., Huntsville, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified below: IT IS FURTHER ORDERED that the complaint be, and it hereby is dismissed insofar as it alleges that Billy Ray Willbourn was discharged in violation of the Act. IT IS ALSO FURTHER ORDERED that the election held on May 25, 1973, in Case 10-RC-9564, be, and it hereby is, set aside, and said case is hereby remanded to the Regional Director for Region 10 to conduct a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.] I We disavow the following statement of the Administrative Law Judge appearing in the text of his Decision under the heading "The Objections" "Further, Respondent makes no showing that the interrogations were not more widespread than the General Counsel has proven and there is every rea on to believe that they were " In our view, the burden of proof does not shift to a respondent to prove that it has not violated the Act Instead, the burden remains with the General Counsel to show the extent that violations have occurred DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On March 28, 1973, the Communications Workers of America, AFL-CI- 0, hereinafter called the Union, filed a charge with the Regional Director for Region 10 of the National Labor Relations Board, hereinafter called the Board, alleging that Huntsville Manufacturing Co., a subsidiary of M. Lowen- stein & Son, Inc., hereinafter called Respondent, violated Section 8(a)(1) and (3) of the Act by discrimination against Billy Glenn Bogue (Case 10-CA-10062). On April 4, 1973, the Union amended the charge in Case 10-CA-10062 to add an allegation with regard to discrimination against Donald Ray Harris and on April 16, again amended it to add the name of Thomas E. Melton. On June 13, 1973, the Regional Director, on behalf of the Board's General Counsel, issued a complaint alleging various violations of Section 8(a)(1) by Respondent which Respondent duly answered. On July 5, the Union filed a second charge (Case 10-CA-10260) alleging acts in violation of Section 8(a)(1) of the Act by Respondent, and on July 23, another charge (Case 10-CA-10287) alleging a violation of Section 8(a)(3) and (1) by discrimination against Billy Wilbourn. On March 30, 1973, the Union filed a petition (Case 10-RC-9564) on which an election was conducted on May 25, 1973, pursuant to a stipulation for certification upon consent election. The Union failed to get a majority of the votes cast in the election and filed timely objections which the Regional Director found were in part coextensive with the allegations of violations of Section 8(a)(1) contained in the first complaint (Case 10-CA-10062) theretofore issued. Accordingly, the Regional Director directed a hearing on the objections and consolidated Cases 10-RC-9564 and 10-CA-10062. On July 6, Respondent moved the Board to strike the objections on various grounds and on July 20 Respon- dent's motion was denied. The Board adopted the Regional Director's recommendations that a heanng be held and ordered the issues to be processed pursuant to the order of consolidation On September 4, 1973, the Regional Director then issued a consolidated complaint on all three charges together with the already consolidated hearing on the objections. The consolidated complaint alleges that Respondent violated Section 8(a)(3) by the discharge of employee Billy Ray Wilbourn and by that act and by 24 other acts independently violated Section 8(a)(1) of the Act. Respondent duly filed its answer denying the commission of any unfair labor practices. On the issues thus joined the matter came on for hearing before me at Huntsville, Alabama, on September 25 and 26, 1973. Because of the illness of a key witness for Respondent, the hearing was then continued until December 18, 1973, on which date it was closed. At the hearing on all 3 days all parties were represented by counsel and had an opportuni- ty to call, examine, and cross-examine witnesses, to adduce relevant and material evidence, to argue orally at the close 211 NLRB No. 8 HUNTSVILLE MANUFACTURING CO. of the hearing, which argument was waived by all parties, and to file briefs. Briefs have been received from counsel for the General Counsel, the Respondent, and the Union. On the entire record in this case, and in consideration of the briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a corporation engaged in the manufacture and sale of unfinished textile materials at a plant in Huntsville, Alabama. Respondent annually ships goods from its Huntsville plant valued in excess of $50,000, directly to customers located outside the State of Alabama. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent's Huntsville plant makes thread, using over 1,000 employees who have not heretofore been represented by any union. Early in the year 1973, Billy Ray Wilbourn contacted organizer Roshto of the Union urging him to organize the employees of Respondent .' With Wilbourn's help, Roshto commenced an organizing campaign in which Wilbourn took a large part, making housecalls on employees, handbilling at the plant, and ultimately acting as an observer at an election conducted on May 25,2 pursuant to a petition filed by the Union on March 30. The Union did not receive votes from a majority of the employees who voted and objections were filed alleging substantially the same actions on the part of Respondent that are alleged as unfair labor practices in violation of Section 8(a)(1) in the instant case. On July 19, Billy Ray Wilbourn was discharged by the Respondent under circumstances which will be discussed below. During the organizing campaign, Respondent, through its managerial staff and supervisors, conducted an active campaign against the Union, during the course of which it is alleged many instances of interference with, restraint and coercion of, employees by supervisors and managerial persons took place. These and the discharge of Billy Ray Wilbourn comprise the issues to be resolved in the instant case. i Wilbourn was acquainted with Roshto through his wife's participation in a union organizing campaign in another plant nearby. 2 Hereinafter all dates are in the year 1973 unless otherwise specified 3 According to the testimony of Wilbourn, he had been employed in this capacity for about 2 years prior to his discharge . However, Phillips testified that he had been assigned to this job about a year before his discharge but had worked on it only the 2 months immediately preceding his discharge. While this is directly contradictory to the testimony of Wilbourn, it is not material to the issues herein . Were it so I would have no hesitation in crediting Wilbourn. Phillips' testimony was characterized by a haziness of recollection in a number of respects and much of the material portion of his B. The Discharge of Billy Ray Wilbourn 55 Billy Ray Wilbourn had been employed by Respondent for about 12 years. At the time of the union campaign he was assigned to the job of bobbin stripper under the supervision of John A. Phillips. He was classified as a utility man and his duties, according to his testimony, included stripping bobbins, which is to say, taking tangled or defective thread from bobbins, cleaning up bad work, and sweeping lint out of some windows where lint accumulated during the day on the windowsills.3 On July 19, about 2 p.m., an hour before quitting time, Wilbourn was caught up with his work and was assisting some other employee who was learning a new job when, according to Wilbourn's testimony, Phillips walked up to him and said, "I want three creels of drawing put in these frames."4 Wilbourn stepped back thinking that Phillips was addressing the learner, Cooper, who had been hauling the drawing that day, but Phillips turned to Wilbourn and said that he was addressing him. Wilbourn asked when that was put on his job and Phillips told him it had been in his job all the time but he had not been doing it. Wilbourn told Phillips that he did not have time to do that work at that time because he had other duties on his job. Phillips then said, "You're refusing to do it so come down to the office and get your time," and turned and walked off. Wilbourn followed Phillips to the office where Phillips read a paper which he stated were the duties of the bobbin strippers job. He read that the bobbin stripper was to strip bobbins, clean up the bad work, sweep out the windows, haul drawing, and transfer roping from mill to mill. At that point his voice fell and Wilbourn could no longer hear him. When Phillips completed reading from the document he asked Wilbourn if he wanted to reconsider and haul the drawing. Wilbourn answered "it's up to you" whereupon Phillips commenced writing up his termination. After Phillips completed the paperwork terminating Wilbourn, Wilbourn went to the office of George Wright, the superintendent of the cardroom, and the only person who could appeal employees who had been terminated by the supervisors. Before Wright talked to Wilbourn he called Owen Hamett, the personnel man, and told him to bring a notebook to take notes on the conversation. Wilbourn then told Wright that Phillips wanted him to haul some drawing, that he had told Phillips that he did not have time because he had other work that he had to do on his job, and that Phillips had fired him. Wright answered that he would have to get Phillips' side of the story and Wilbourn left the plant. Phillips testified that Wilbourn had been loafing for testimony left me with the impression that he had little or no recollection of the events concerning which he testified but was basing his testimony on his assumption of what had probably happened. The record reveals that Mr Phillips suffered a heart attack shortly after the events litigated herein and was incapacitated for a period of several months, having returned to work only a few weeks before the date on which the hearing was resumed to take his testimony 4 Drawing is a "rope" of fine threads that are fashioned into thread through a machine called a frame. A creel consists of 12 cans, into each of which roughly 80 lbs. of drawing is coiled. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about an hour and that he asked him to haul two loads of drawing.5 According to Phillips' testimony, he originally said, "Billy how about going out number three and get me a couple of loads of drawing and put it behind number four frame, we've run out up there" to which Wilbourn asked "When did you put that on my job ." Later in cross- examination Phillips testified that, when he first addressed Wilbourn, Wilbourn thought he was talking to Cooper and stepped back; so obviously he did not address Wilbourn by name as he testified. Phillips went on that he answered, "Billy, it's been on there all the time ; you just haven't been doing it. It's been on the job all the time" to which Wilbourn answered, "I'll be dogged if that's so." At this point Phillips said that he had the job description in the office and would go up and read it to Wilbourn. Wilbourn answered, "I don't care what the job description says, I'm not going to do it. I've never done it, it's not on my job and I'm not going to do it, I don't care what the job description says." Phillips said that he was not going to argue with Wilbourn about it, he either did it or refused to do it to which Wilbourn answered that he refused . Then Phillips said, "Well Billy, if you refuse then come up to the office and I'll have to terminate you" and Wilbourn answered, "Oh boy, that's just what I've been waiting for." At the office, Phillips testified, he read the job description and asked Wilbourn to reconsider and get the drawing, to which Wilbourn answered that he was not going to do it, that he had worked too much already that day. Wright testified that Phillips reported to him that he discharged Wilbourn because Wilbourn refused to haul the drawing as he had been ordered. The General Counsel contends that the discharge was obviously discriminatory because other employees who had failed to do assigned work had been given reprimands but not terminated . Respondent contends however that it makes a distinction between a failure to do assigned work, which results in a reprimand, and a refusal to do assigned work, which invariably results in a discharge. General Counsel adduced no evidence that any employee had ever refused to do an assigned job without discharge and there is no evidence in contradiction of Respondent's position. Accordingly, the issue is whether Wilbourn refused to do the work assigned him by Phillips or merely pointed out to Phillips that he could not do that work and complete his regularly assigned tasks. I conclude that the complaint must fail with regard to the allegation that Wilbourn was discharged for discriminatory reasons. I do not credit Wright, Harnett, or Phillips. The testimony of each of them is inconsistent with the others in certain particulars and each of them testified to areas in which their recollection failed . The record reveals that, in the termination interview with Wright, Harnett took notes, in fact he was there for that specified purpose , and that notes were taken to aid Respondent when and if the matter came on for hearing as Respondent believed an unfair labor practice charge would result from the discharge. Nevertheless these notes were not produced at the hearing S Drawing is hauled on wheeled vehicles. According to the testimony of Wilbourn. Wright, and others, each vehicle holds four cans of drawing. However, according to the testimony of Phillips, the drawing is normally hauled on a vehicle that holds five cans. Another immaterial issue exists whether Phillips asked Wilbourn to haul two loads of five cans each as he nor were they used to refresh the recollection of either Hamett or Wright. Similarly,) ' immediately after the discharge, Phillips prepared notes which , apparently the same day, he showed to Wright . These notes, according to Phillips, were prepared in order to refresh his recollection when and if this matter came on for hearing , as he too believed that an unfair labor practice charge would result. Wright testified that Phillips prepared a report but Phillips had no recollection of so doing. At any rate neither notes nor report by Phillips was produced by Respondent. I conclude that the notes taken by Harnett and those written by Phillips would not have supported their testimony. Nevertheless, based on Wilbourn's testimony alone, I conclude that he was discharged for cause. According to Wilbourn's testimony after he was taken to the office by Phillips, who then read him the job description, Phillips asked him if he wanted to reconsider and haul the drawing. Wilbourn answered "it's up to you." I believe that this suggestion by Phillips that Wilbourn reconsider and haul the drawing is completely inconsistent with the General Counsel's theory that Respondent seized on an opportunity to discharge Wilbourn, the leading union organizer, for arguing with his supervisor about doing the work assigned to him. I conclude that on the contrary Phillips attempted to smooth over the argument by asking Wilbourn to reconsider and that Wilbourn's ambiguous answer angered Phillips so that he went through with the discharge . While I give no credence to Phillips' purported quoting of Wilbourn as having directly and repeatedly refused to do the assigned work and having stated that he was glad to be discharged and had been waiting for the discharge, I believe that Wilbourn's reaction to the assignment of the job that he had never heretofore been required to do was so vehement that Phillips believed that Wilbourn was refusing to do the work. No one questions the right of Respondent's supervisors to assign work , and, as I found above, Respondent's assertion that its rule is to summarily discharge any employees who directly refuses to work is uncontroverted. In the absence of direct evidence that Wilbourn's union activities contributed to his discharge, I conclude that the inference raised by Phillips' suggestion that Wilbourn reconsider and do the assigned task counteracts any inferences raised by the unreliability of Respondent's witnesses and its failure to support their testimony. Accordingly, I find that the General Counsel has failed to support the allegation with substantial evidence on the record as a whole and I recommend that the complaint be dismissed insofar as it alleged that Wilbourn was discharged for violative reasons. C. The 8(a)(1) Allegations Employee Crilla Mahathey testified that about the middle of April her supervisor, Artis Byrd, came to her and asked what she thought about the Union. She answered in essence that she felt that the employees needed the Union whereupon Byrd talked with her about personal difficulties testified, two loads of four cans each as Wright testified at one point in his testimony, two creels of 12 cans each as he testified at another point in his testimony, or three creels of 12 cans each as Wilbourn testified. I do not deem it necessary to resolve the issue raised. HUNTSVILLE MANUFACTURING CO. he had had with her and as he was leaving said he hoped that she would not see where the employees needed a union. Byrd admitted that he- had asked her what she thought about the Union. I credit her testimony. Miss Mahathey also testified that about 3 weeks before the election George Wright , the assistant plant manager, asked her what she thought about the Union. She answered that she had too many other things to worry about and Wright told her that he was worried about it. She answered that if she held his position she would be worried too. A couple of weeks later Wright came back and asked Miss Mahathey if she had any questions . She told him she could not think of a thing that she wanted to ask him and asked whether he had anything to ask her. He answered that he could not ask her what he wanted to. Wright testified that he in fact had two conversations with Miss Mahathey but denied that he asked her what she thought about the Union. On cross-examination he testified that he did not recall much about the conversations he had with Miss Mahathey. He testified that Respondent's supervisors had been given instructions on what they could say to the employees, that they could not ask whether they had signed a card or if they were going to vote for the Union, but they could talk about the economic strike that the Company was involved in in 1951 and how people lost their jobs, that the Union would cause trouble, that they had a stable work record for 20 years without strikes or loss of pay, and that they would work for the Company without having to pay to come to work, but if they belonged to the Union it required union dues. He also testified that all the other supervisors were told that they could say these things to employees . He testified also that they were told that they could not make threats or promises but that they were to go out and actively campaign against the Union. He recalled that he told Miss Mahathey that he was worried about the Union but did not recall her commenting that she was not worrying about the Union, although he did not deny that she said so. I conclude that her testimony is substantially correct and that Wright failed to recall the full extent of the conversation he had with her. Jacoby Rice testified that Supervisor Griffen Yancey asked him what he thought about the Union. He answered that he thought it 'would be a good thing because employees needed one, and if it got in and did not help, at least it would not hurt the employees. Yancey asked what Rice meant by that remark and told him that the employees did not need a union, recounting the incident of the closure of the Lincoln Mills in the same plant some 20 years earlier when it was organized by the Union. Yancey testified that he had been instructed to keep his supervisor, Cunningham, advised on how employees felt about the Union and that he reported a conversation to Cunningham that he had with Jacoby Rice in which Rice asked him if he knew how much the union dues would be and that he had answered that he did not know. Yancey appeared to believe that he was not permitted to speak to an employee about the Union unless the employee first asked a question. I credit Rice's testimony, I think that Yancey was answering evasively on cross-examination about what he had been told by management and that in a conversation with Rice he made the pitch that, according to Wright the 57 supervisors were expected to talk to employees and in addition he started the conversation by asking Rice what he thought about the Union. Rice testified that, a few days after his conversation with Yancey, Kermit Cunningham came to him and said that he had heard about the remark that Rice had made to Yancey and asked him to repeat it. Rice repeated the remark whereupon Cunningham asked him whether the Union gave him a job, pointing out that he had done so in January. Rice did not answer. Cunningham went on to tell Rice that he needed to talk to some of the older hands that had been around 20 years ago when they had the Union and when the Union closed the plant down and people lost their cars and their homes. He asked whether Rice had a wife and two kids and asked how he would like for it to happen today as it happened 20 years before. Later, about the first of April, according to Rice, Cunningham asked him whether his brother John had a twin. He said that he did not and Cunningham went on to say that John had been on the handbill line handing out handbills. Rice answered that he did not believe it and Cunningham told him to ask John. Then Cunningham told Rice he wanted him to get John off the handbill line and Rice said he would try. He also quoted Cunningham as saying that in January he had done Rice a favor to give him his job back and now he wanted Rice to do him a favor and get John off the handbill line. A few days later, according to Rice, Cunningham came to him on the job and asked whether he had been trying to get John off the handbill line. Rice said he had and Cunningham said that he had not, and said he would not leave until Rice admitted that he was lying, whereupon Rice admitted that he was lying. Cunningham admitted that he had talked to Jacoby Rice a number of times and asked whether he knew that his brother was at the gate handing out pamphlets on one occasion. Rice said he did not think his brother was out there and that he would talk to his brother to which Cunningham answered, "Okay, you do that." He observed that shortly after that Jacoby was out passing out handbills too. He denied that he had ever said anything to Jacoby Rice about lying about his brother. With regard to the earlier conversation resulting from the conversation be- tween Jacoby Rice and Yancy, Cunningham testified that he could not recall it, but would not deny it. He also failed to recall whether he had mentioned anything about having done Jacoby Rice a favor in hiring him in January. I credit Cunningham to the extent that his recollection prevailed, however, I believe that he talked to Rice about getting his brother off the line. As far as the rest of the conversation with Rice is concerned, there seems to have been no interrogation but rather argument protected under Section 8(c) of the Act. Rice also testified that John Phillips, who was known in the plant as Big John, came to him and asked what his brother John was doing on the handbill line. Phillips testified that he had a conversation with Rice in which Rice mentioned his brother being on the picket line and he asked Rice whether he could not talk to his brother John and what was wrong with his brother John. He testified that he believed that Jacoby Rice was against the Union at the time. Charles Wilbourn, the brother of Billy Wilbourn, 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that Assistant Plant Manager Wright came to him about a month before the election at his workplace and asked him how he felt about the Union. Wilbourn answered that he was not going to say anything either way, whereupon Wright asked him whether he thought the Union would keep their big promises. Wilbourn told him he did not know and walked away. That is all there was to the conversation. Wright admitted talking to Charles Wilbourn but testified that he did not ask him what he thought about the Union. I believe, however, that he did. On cross-examination Wright testified that his conversa- tion with Charles Wilbourn was substantially the same as that of Crilla Mahathey. He had no present recollection of this conversation with Charles Wilbourn and I find Wilbourn the more credible of the two. Accordingly, I credit Wilbourn's testimony. Roy Wiggins testified that about 2 weeks before the election Supervisor Ralph Boyd came to him while he was sitting in the smoker booth alone, to ask him what he thought of the Union. He answered that he did not think anything of it and Boyd went on to say that he did not think that the Union would get in but that it would be like it was when the old Lincoln Mills was trying to get a union in there and they closed the place down. Boyd denied having asked Wiggins what he thought about the Union. He testified that he had a conversation with Wiggins in which Wiggins told him that he was connected with the Union and said, "You know how I am going to vote don't you" to which Boyd answered, "No, I haven't asked and you haven't told me." He also testified that ordinarily he was not to say anything about the Union unless an employee came up and asked him about it. He also testified that Wiggins told him that he was going to vote against the Union because he had been in the Union before and had been off work as much as he had stayed on. Boyd also testified that he had reported to higher management that only 1 employee out of the 23 that worked for him had ever said anything about the Union. However, later he testified that another employee asked if the Union had run the Lincoln Mills plant out and he told him that he had heard that but did not know it to be a fact. He testified that that was the only employee with whom he discussed the Lincoln Mills situation. I do not believe Mr. Boyd and I credit Mr. Wiggins' account of the conversa- tion. Employee Joe Bogue testified credibly that Supervisor Boyd came to him on the job and said, "Joe let's have a man to man talk about this Union. I've never heard you say anything either way." Bogue answered that if he did not have anything to say he would not say anything and Bogue responded that he did not have to talk about it if he did not want to but he had figured that Bogue had been involved in the Union. After some mention of the Lincoln Mills situation, Bogue broke up the conversation stating that his machine was tearing up. Boyd denied having any conversation with Bogue. I credit Bogue. Terry Loona testified that Supervisor Norvill Pedigo in the first part of April came to him on the job and asked why people would sign union cards. Loona answered "that it was certain colored people on the third shift" and named some of the people who were for the Union. The following week Pedigo came back and told Loona that it was unfair to ask him but how did he feel about the Union. Loona indicated that he would make no comment and Pedigo went on and told him the Union would give him nothing that the Company did not want to give him and asked him if he would do something to hurt his father who was also employed at Respondent's plant. Pedigo then asked Loona how his father felt about the Union and Loona declined to answer. Pedigo testified that he talked frequently with Loona about the Union and that he never asked Pedigo how he was going to vote, but that Pedigo came to him and said, "I'm going to tell you how I am going to vote, I'm going to vote union." Pedigo asked whether Loona "would go over his father" and Loona said he wanted to leave his father out of it. Pedigo said he did not remember whether he had ever asked Loona why other people wanted to sign union cards. He did not recall Loona mentioning anything about colored people but admitted that at that point Loona was replying something to the effect that he had no comment as to his own union activities. I conclude that Loona's testimony is substantially correct and that Pedigo had many conversations in which he attempted to ascertain not only Loona's feeling about the Union but the feelings of other employees and the extent of the organization. I believe that Pedigo placed his questions in a slightly offhand way in an attempt to avoid directly contravening his instructions not to openly ask employees how they felt about the Union, but he was no more successful in concealing his purpose with the employees than he was on the witness stand. Billy Wilbourn testified that Supervisor Phillips talked to him a number of times about the Union and on one occasion, when he asked Phillips about training for a higher paying job, Phillips told him that the Company would not train anyone for a higher paying job who is for a union. This is denied by Phillips but I think his memory was at fault. Apparently, in the same conversation, according to Wilbourn, Phillips said that the Union that they had 20 years before was not any good but that he was not saying that CWA was not any good and Phillips asked Wilbourn whether if he were given a higher paying job if he would continue to, get union cards signed .Wilbourn made no reply to this. Phillips admitted talking to Wilbourn about the Union on various occasions and also talking to him about his wife's participation in union activities at another company, but denied that he had ever made any statements regarding any possible effect of Wilbourn's union activities on the possibility of his getting a higher paying job. He also testified that a conversation took place in which Wilbourn asked for a higher paying job but it took place before any union organization had commenced. I credit Wilbourn largely because I find Phillips' testimony incredible as I have set forth above. Wilbourn testified that, on or about February 1, his regular supervisor was out for a few days and a relief supervisor, Jones, was taking his place . He testified that he had not gotten a safco card, an entry card for a company- sponsored lottery designed to encourage employees to be in attendance at work everyday, and he had asked Jones why he did not receive it. Jones answered maybe it was because he was a union supporter . Jones admitted the HUNTSVILLE MANUFACTURING CO. 59 conversation. I find no coercive impact in this conversa- tion. In the first place, Jones operated as a supervisor only sporadically in the absence of the regular supervisor, he voted in the election without challenge, and was a long- time acquaintance of Wilbourn's. Furthermore, it seems clear that the response was made in a joking fashion and taken as such . I find no possibility of a coercive result and I will recommend that the complaint be dismissed insofar as it is alleged to be violative. Wilbourn also testified that Charles Wright asked him how he felt about the Union and why. Wright denied asking him the question . Whether or not Wright asked Wilbourn how he felt about the Union, and he might very well have done so, I find no coercion implicit in the situation. Wilbourn was well known to be the leading union adherent . Wright had a right on behalf of Respon- dent to argue Respondent's case with him and no one could have believed that he was actually seeking any information by his "interrogation." I find no coercive impact in the conversation and recommend that the allegation regarding it be dismissed. Delores Watkins testified that Artis Byrd came to her and asked what she thought about the Union. She said she did not know because she had never belonged to a union before and he asked her whether she had filled out a card. She told him she had not, whereupon he advised her not to fill one out and went on to say that the Union would get dues off 1,300 people working in that mill and they would just be making money off the Company. On the day before the election, Byrd came to Watkins and told her where to go to vote the following day. He then went on to say that she could go ahead and vote for the Company and keep her job, or she could vote for the Union. Byrd admitted talking to her on several occasions but testified, "I usually answered her on questions that she asked" He testified that she had a union card in the smoker one day and said something about "Y'all have to pay me, I'm going to sign one of them," to which he answered "you don't know what you're talking about." He denied asking anybody to vote for the Company and denied her account of the conversa- tion the day before the election. However, from his testimony it was not possible to determine what the conversation was as he recalled it. I credit Mrs. Watkins. Milton Bomar testified that Boyd, Cunningham, and Wright all talked to him about the Union. Boyd asked him what he thought about the Union and he said that he had not talked too much but that it would be close and Boyd said that he did not think so because they had intelligent people there. Bomar also testified that Wright and Cunningham asked him the same question. Wright admitted talking to him but denied asking him what he thought about the Union and Cunningham admitted going out to his job and asking him what he thought about the things that were going on. He also asked him if he wanted to talk about "it" but did not use the word "Union," although that was the general topic at that time and clearly the matter concerning which he was prepared to talk. I credit Bomar with regard to all three incidents. Martha Browning testified that when she first started working for the Company they were handing out handbills at the gate. She stopped and talked to Charles Wilbourn and took some handbills from him. That afternoon Artis Byrd asked her what she had talked about with the union man at the gate and told her there was going to be an election on May 25, that she knew how the Company wanted her to vote and she had better vote no, but they could not tell her how to vote and that if the Union went on strike she would lose her job. Two days before the election, after a meeting at which management presented its last pitch against the Union, she was talking to Charles Wilbourn and Artis Byrd called her to go to work, which she did. A little later he came over and asked her what she was talking about with Wilbourn. She assured him that it was not about the Union and that he should not worry about it. He told her that she had better vote no because if she did not she would lose her job and she had a child to support. He also said that if the Union came in they would not have a job on the following Monday. Immediately after the election, after the votes were counted, Byrd came to her and said, "We won; you have a job come Monday." After the election Miss Browning was working under Jim Hall, a relief supervisor, and he told her that he had heard that she voted for the Union. She told him he was not supposed to ask those questions and he asked her whether it was true. She told him it was none of his business and he said that her friends were going to get her fired because they were for the Union. Byrd testified that he knew Miss Browning but that he never talked to her about the Union. He also testified he did not know Charles Wilbourn, he never went out to the gate, and he never paid any attention to the handbilling, and that he never made the statement "Vote for the Company and you'll have a job." He also testified he never asked an employee to vote for the Company and that he had never been instructed to ask employees to vote for the Company. I credit Miss Browning. Hall admitted asking Miss Browning whether she voted for the Union and she told him that she had not. He denied making any threat that she was keeping the wrong company or anything of that sort. She testified that after she quit she complained that she quit because he had threatened to fire her and he was called into the office. He asked her why she was quitting and that is what she said. He then asked her if what he had asked her was had she voted for the Union or that he had heard a rumor that she had and she said it was noisy up there and she might not have heard exactly what he said to her. He denied telling her that she might be fired, would be fired, or could be fired because of any union. He testified that he did not care how she had voted in the election he was "just letting her know" there was a rumor that she had voted fcr the Union and that he had heard it. He believed he was acting in her best interest in letting her know that there was a rumor that she had voted for the Union but could not explain why he thought it would be in her best interest to know that. He also testified that he "put the word out" after he had questioned her that she had denied that she had voted for the Union. He had no idea what he might have said that caused her to misunderstand him to have threatened to fire her. I believe that Mr. Hall was being evasive on the witness stand and that he made the statements attributed to him. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Discussion and Conclusions Respondent argues that in the first place with the exception of the few admitted interrogations no coercive activity took place. As a second line of defense, Respon- dent argues that, even if 10 incidents of interrogation took place, they were not coercive because of the absence of any threats or promises and in the third place, even assuming all the employees were credited, the number of instances of coercion were so small they would have no real impact on the employees and specifically on the election process. I have found above that Respondent ran an active campaign to defeat the Union, that its supervisors were instructed to actively present Respondent's case to the employees, and that they did so. Thus, when I found that Byrd interrogated several people and, in the course of his interrogation, suggested to some that the way to keep theirjobs was to vote against the Union, I found it hard to believe that he did not interrogate others under his supervision probably with similar threats. I cannot infer, from the evidence before me, that he did not. It is clear that Respondent made every effort to find out how the employees were reacting to the union campaign and that some of its supervisors consid- ered that they had a duty to talk with each employee, more or less deviously attempting to find out their feelings about the Union. All of this interrogation took place against the background of Respondent's constant reminder to the employees of the Lincoln Mills situation and of the fact that the advent of the Union at Lincoln Mills meant that the plant closed down. There is no indication that Respondent pointed out that it would not necessarily close down if the Union came in or that Lincoln Mills closed down only because of the Union's intransigence and strike, if indeed that was their understanding. No attempt was made to reassure the employees that the interrogation would not result in discriminatory actions on the part of Respondent against those employees whom it ascertained to be union adherents. None of the "safeguards" which the Board has spelled out in Johnnie's Poultry, 146 NLRB 770, and other cases were recited to the employees. I find that by its campaign of interrogation of employees, by the threats of Byrd to Walker and Browning, and by the advice of Cunningham and Phillips to Rice that he should get his brother off of the handbill line, Respondent interfered with, coerced, and restrained employees in the exercise of their rights in -violation of Section 8(a)(1) of the Act. IV. THE OBJECTIONS Respondent points out that not all of the alleged coercive activity took place during the period between the filing of the petition and the election and, accordingly, not all of it need be considered with regard to objections. I have already recommended the dismissal of the 8(a)(3) allega- tion which took place after the election and does not form a part of the objections. However, I have found that Respondent engaged in a widespread campaign of interro- gation against the background that at least suggested to employees that the advent of the Union meant the closing of the plant. I find that this campaign of interrogation, accompanied on at least two occasions by threats that a vote for the Union could cause an employee to lose his job, interfered with the free choice of employees at the election and warrants setting aside the election. I am not convinced by Respondent's argument that, inasmuch as only 1 percent of the employees was shown to have been directly threatened or interrogated and they won the election by over 280 employee votes, no showing was made that the election should be set aside. Further, Respondent makes no showing that the interrogations were not more wide- spread than the General Counsel has proven and there is every reason to believe that they were. A danger implicit in having every supervisor engage in Respondent's antiunion campaign is that some supervisors may not have been adequately informed as to the limitations on their antiunion activity, as appears to have been in the case here, and that in their enthusiasm for Respondent's cause they stepped over the line, as I have found that they did here. Under all the circumstances present in this case, I believe that the objections are sustained and warrant setting aside the election and I so recommend. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in the connection with the operations of Respondent described in section I, 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 thereof. 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. Huntsville Manufacturing Company, a subsidiary of M. Lowenstein & Son, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their union activities and threatening their employees with loss of jobs if the Union won, and by advising employees to get related employees to cease engaging in union activities, 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. 5. The discharge of Billy Ray Wilbourn is not an unfair labor practice within the meaning of the Act. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices it is recommended that it cease and desist therefrom and that it take certain HUNTSVILLE MANUFACTURING CO. 61 affirmative action which is necessary to effectuate the policies 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: ORDER6 The Respondent, Huntsville Manufacturing Company, a subsidiary of M. Lowenstein & Son, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities and threatening employees with the loss of their jobs if the union wins the election. (b) Advising its employees to get their fellow employees to cease engaging in union activities. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any other 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 or all such actions. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places at its Huntsville, Alabama, plant, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 7 Copies of said notices on forms provided by the Regional Director for Region 10 shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. It is ordered that the complaint herein be dismissed insofar as it alleges violations of the Act not specifically found. It is further recommended that the objections be sustained and that the representation election held on May 25, 1973, be set aside. 6 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. 7 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 Ale National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice, and we intend to carry out the order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT coercively interrogate our employees concerning their or other employees' activities on behalf of Communications Workers of America, AFL-CIO, or any other labor organization. WE WILL NOT threaten our employees that they will lose their jobs if they vote for the above-named union or any other labor organization. WE WILL NOT advise our employees to cause their fellow employees to cease engaging in activities on behalf of the above-named union or any other labor organization. HUNTSVILLE MANUFACTURING CO., A SUBSIDIARY OF M. LOWENSTEIN & SON, INC. (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, NE, Atlanta, Georgia 30308, Telephone 404-526-5760.