# Appendix — Textile Workers Union v. Schwarzenbach-Huber Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1969
- **Citation:** 396 U.S. 960

## Text

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IRREME COURT. Us &
‘IN THE

Supreme Court of the United States

October Term, 1968-1969

‘

7 | . | ioe
TEXTILE WORKERS UNION OF AMERICA, AFL-CIO,
Petitioner,

v.
THE SCHWARTZENBACH-HUBER COMPANY,
and |

: | NATIONAL LABOB RELATIONS BOARD,
_ Respondents.

APPENDIX

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Opinion of the Second Circuit

maintenance enfployees was not a claim made in good faith.
We sustain the Board's finding of two of the’alleged unfair
labor practices. As tothe other findings of allege? unfair
labor practices, we set them aside and refuse enforceme nt
on the ground that such findings of unfair labor practices .
are not supperted by substantial evidence on the-record as
a whole. We set aside and refuse to enforce the bargain-
ing order as the Union did not have a majority, as the
Company’s doubt that the Union had a majority, was made
in good faith and as the making of a bargaining order
under the-cireumstances of this case would clearly not

effectuate the purposes of the Act. 3

Part I
The Bargaining. Order.

The propricty of enforcing an order to bargain after
a union has lost a representation election depends on the
resolution of three questions: (1) whether the Union in
fact iad a majority; (2) whether the employer refised to
bargin because of a good faith doubt of suely majority,
if thé Union had a majority; (3) Whether on all the facts’
of the election situation a bargaining order is an appro-
priate rewedy for enforcing the policy of -the National
Labor Relations Act.

A
—_ . :
Did the Union Have a Majority?
The initial inquiry must, of course, relate to the number
of employees in fhe unit. The Trial Examiner, all of whose

findings were adopted by the Board, finds the unit was
composed of 197 employees. This included Joan laia and

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Opinion of the Second Circuit

Ruby Evans, to the inclusion of whom, says the Trial Ix-
aminer, the General Counsel “takes no serious exceptions.”
Indeed, there was no basis for any objection whatever, as
these two women were classified as weavers, they spent
most of their time on the floor operating the looms and

only a part of their time teaching the others how to operate |

the looms: The name of Marjorie’ Krise is apparently

omitted, as her name “does not appear on the eligibility -
list as prepared by: the Company for the March 16 elec-

tion.” Mrs. Krise should have been included in the unit.
The uncontradicted evidence is that she dnd her husband
had worked in the plant for a long time. In November,

1966 she told the Company “I’d like a layoff for medical _

and personal reasons.” While she considered her personal
health a private matter, there is other evidence in the ree-
ord to indicate thatthe layoff Wes due to an allergy she

had for silk and silk. was then being worked in the plant. —

In February of 1967 her husband noticed that certain jobs
were indicated on the Bulletin Board and she told him that
she was interested in going back to work and would he see
Mr. Kozak, the Personnel Manager. He saw Mr. Kozak
who said he would be glad to see her. This was reported
to Mrs. Krise. She saw Mr. Kozak and went back to the
plant on February 20th. She had previously worked as a
erecler but came back in a different department as an ex-
aminer, clearly within the eategory of a production or
maintenance worker. If the fact that her name was not on
the eligibility list has any significance, it is sufficient to
say that the eligibility list was prepared as of the period
“ending February 11, 1967,” prior to the time when Mrs.

‘Krise came back to work, As the name of Joyce Jewell,

who quit work after the preparation of the eligibility list,

was eliminated, it is clear that the name of Marjorie Krise

should have been included.

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Opinion of the Second Circuit. i,
ghey

Thus the unit becomes 198. The name of Vivian Beeker,
who was a regular worker but who was laid off temporarily
in the early part of February because she had to find a new
babysitter to take care of her children while she worked,
should also have been-included. This brings tlie total in
the unit to: 199.

The next consideration is the cut-off date. The Board
concedes in footnote 20 on page 23 of its brief that “it does
not rely on cards signed after February 14.’ ”. The Trial
- Examiner does not clearly state the fact that on F ebruary
9th,-when the initial demand for recognition was made,
the Union did not have a majority. But he finds that be-
tween February 9th and February 14th “4 additional. em-
ployees signed representation cards, Aw he says the Union
thus “obtained a majority of 103 cards ont of a total of
199 unit employees, even assuming that bcd and IXrise
are to be included in the unit.” This is on the theory that
the Union’s demand was of a continuing nattres

We hold that under the circumstances of this particular
“ease the cut-off date is February 9, 1967, when the letter
claiming a majority was sent by the Union. Since we find,
as is disclosed in the « sping discussion, that the Union had
no majority on February 9, 1967, 4 compelling reason for

1 This “concession” seems to imply that ecards “signed” on or before
February 14 should be counted. Of course, the date of the signing of
the cards has no significance. Many of the employees signed cards and

‘ retained them at home or in”their pockets or elsewhere for periods of
several days, as appears in the Appendix to this opinion. They did
this, we have no doubt, because they had not. yet-made up their minds
to make the cards effective ‘by delivering them to the Union. The
significant date is the date on iar the signed card is delivered to-
the Union. f--" ¢@

Moreover, in no event could covis delivered to the. Union on Feb-
ruary 14 be counted, as the Board itself has ruled that the cut-off
date cannot be later than the day before the date of the refusal to
bargain. Gotham Shoe Manufacturing Co., 149 NO L:-R. B. No. 80,
enforced, 359 F. 2d 684 (2d Cir. 1966).

Ta
Opinion of the Second Circuit

this ruling is afforded by the fact that Frazier directed a
wholesale distribution of copies of this letter at the plant
gates on February 10. The intended effect of this wide-
spread diffusion of the Union’s false claim that it had a
majority was undowbtedly to bring the reluctant sheep into

the fold by telling them the fight was over, the Union had
won and they might as well get on the’ bandwagon. No

cards handed to the Union after the making of such a mis-
representation ‘could, possibly be deemed: valid.’

We turn to the cards: During the oral argument of this
case we made a request that the cards be sent to us. When
they arrived they had been thoroughly shuffled . and
scrambled. It did not seem possible to arrange them in a

meaningful way. But continued study of what appeared |

on the face, and what appeared also on the reverse side of

“each eard, finally led to a solution which perhaps we should - .

have noted in the beginning. The key to the ecards is to be

found in the symbol appearing on the’reverse side of a

ecard on the right near the top. When these cards aré ar-
ranged in sequence from 1 to 122, in accordance with the
symbols appearing on the reverse side of the ecards, we can

* get a completely dependable factual pattern of the order in

whith the ecards w ere counted. So that this may be checked
by any ‘interested person, we have added as an Appendix
to. this opinion a complete list of the 122 cards, arranged
in the order just abgve described, together with the data

appearing both on tlie face and on the reverse side of each. —

ecard, including the da and time of filing with the Board.
The Examiner finds that the 4 additional employees
above referred to are represented by cards numbered 101,

2 See N. L. R. B. v. Philamon Seietitivies Ine., 298 F. 24 176, 179. 180
(2d Cir. 1962); -N. L. R. B. v. H. Rohtstcin § Co., 266 F. 2a 407 (1st
Cir.1959). J _

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Opinion of the Second Circuit

96, 100and. 102 and he thus reaches the erroneous conelu-
sion thit the Union had 103 cards on February 14,,1967.
Card No. 96 is.particularly interesting. It is the card of
Helen AcKendree. The date is ‘2 1967.” It was
received at the plant ¢ gate on February 10, 1967 at the very
time tit copies of .the Union's letter claiming a ‘inajority
were bing distributed. But it is erroneously given the
number96. It could not properly be eounted as constitut-
ing oncof the majority referred-to in the letter of Febru-
ary 9tl as the card \ Was not received by the Union until

Kebrury 10th. By seine strange method of eMuputation '

the Hewing Examiner counted this card as one of the °99
ards” he savs were held by the Union at the time of the
deman. And he-counted this card again as one of the “4
additioal employees.” The cerrect number of cards in the
possession of the Union on February 9, 1967 was US.
The other 5-supposedly “additional” cards are also in¢
teresting. Card No, 100 was signed by Maury LL. Delozier

on February 13 but.it was not delivered to the?Union until,

oF

February ‘This is after the cut-off date, sogwe still have
only 9S, eed Ne. 101 was signed by John cone on
February 14 and (live ‘red to the Union on the same day.
This was too late: we still have 98. Card No, 102 wag signed
by Calsie D. Gearhart on February 11 but was not‘ received
by the Union-until February 13, after the cut-off date of
February 9, 1967. °

Accordingly, we-are’ compelled to conelude that on the
eut-off date of I ebruary 9th the Union did not have a ma-
jority. -And this remains true even if Krise and Becker
are not included in the «unit.

®

: 94 |
Opinion of the Second Circuit

B

Are Many. of the Cards Vitiated by Deceitful and
Fraudulent Misrepresentations by the Union?

The chief professional union organizer was Carl Frazier,
an International Representative of the Textile Workers
Union. Working as his lieutenant and next in command
was James Meyers. 35 cards were signed at the meeting of
January 29, 1967. A few were signed at later meetings
sponsored by the Union. Most of the cards were obtained
by personal solicitation, which varied from visits to the
homes of the workers to the passing out of the cards with
or without an explanation of.their purpose. :

A very considerable number of. those ‘who signed the - ©

ecards testified at the hearing, The result, however, was
that the Trial Examiner counted all 122 ecards which he
characterized as “an overwhelming majority.” The way .
this was done can be described as nothing short of extra-
ordinary. Relying on Cumberland Shoe Corp., 144 N. L.
R: B. 1268 (1963), enforced, 351 F. 2d 917 (6th Cir. 1965)
_ and Joy Silk Mills,Jnc. v. N. L. R. Be 485 F. 2d 732 (D. ¢.
-Cir. 1950), the Trial Examiner held that unless a ecard
signer had been told that the “sole” or “only” purpose of
the card was to-obtain, an election, the signing of the card
was a sufficient demonstration of an intention to appoint
the Union as bargaining agent and~-that there was thus
established an irrebuttable presumption which eould not be
neutralized by any testimony by the employee. as to what
he or she understood by the various representations made
by Frazier or the other Union solicitors. In‘one or two in-
stanees where the testimony indicated that the representa-
tion was that the “sole” or “only” purpose of the cards:

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+ 10a
Opinion of the Second Circuit -

was to get an election, the Trial Examiner.accepted these
‘éards also 0, as he found the testimony not eredible.

We turn first to the 35 cards signed at the meeting ‘of:

© January 29th. Frazier himself testified that he read the

entire printed matter on the ¢ ard, word for w ord, and that
he. mide the following representations at the- meeting of
January 29, 1967: (1) if the Union lost the election the
cards would be returned; (2) that the U nion must have 30.

per cent “of the people” before the Union ‘can petition for

an election; (3) “there has. to ber51 per cent of the people -
vote for a Union.” There was considerable testimony by
employees to the effect that they aw ere told that by signing
the ecards they would save $5. This seems to have been on
the theory that, as no payment. whatever was necessary to
validate the card, they’ would save the payment of the
initiation fée or dunes generally .required. What Frazier
omitted ‘to tell those present at the meeting is similarly -
established by Frazier’s testimony that he did not. tell
those:. present that, even. if the* Union lost the elee-
tion, it could still demand recognition/and the right to bar-
gain upon the basis of the cards, That he knew this to be
so is clear from his testimony that; while he made no such
statement at this particular meeting, he did make such a
statement at other meetings. We think these flagrant-mis-
representations and this wilful omission were deceitful and
that the effect of making them-was ‘to perpetrate a fraud
on those-present at the meeting who signed the cards. saci
While none of the employees was permitted to testify to
“ what these misrepresentations meant to him, w e think the
"inference is pe rfectly plain. Hach man present at the meet-
ing must have concluded: “we employees are not accepting
Union membership unconditionally. If there are enough
cards to get an election, and an election takes place, I can

Pe

Opinion of the Second Circuit

vote for the Union or against the Union as I choose. And,
if the Union wins, I save $5. If the Union loses, that-is-.
the end.”
_ Frazier was especially emphatic in insisting that he had
nevér-said to anyone, at the meeting or anywhere else, that
the “sole” or “only” purpose of the cards was to obtain an
election. :
Thus becafise of these flagrant dishemeeeiieions —
‘this wilful concealment, we have no alternative other than
- to invalidate the entire 35 cards signed at the meeting of
January 29th. ; :
Against this background it is, we think, of no significance
that none of the signers of any of the cards demanded the
“return of his card by the Union. The ex parte action of
the Union in sending union membership cards and union
literature to each person who signed a ecard is likewise of
no significance in the. light of the representations made by °
Frazier. De
To cover the matter of the cards more thoroughly we
specifically invalidate the ecards of six employees. Three
of these, Jonas Corbin, Jr., William Slone (whose card was
erroneously recorded by Frazier as Stone) and Walter
Delozier, attended the meeting on January 29, 1967. The
Other three, William Nolan, Ronald Taddy and Patrick
O’Hara, so far as appears, did not. attend the meeting of
January 29, 1967. .
- Jonas Corbin, Jr. was an active supporter of the Union .
who, after signing his ecard’ at the meeting, distributed ~
_ cards to other employees and urged them to sign for the
_ Union. He was asked what Mr. Frazier said at the sian

A. Mr. F razier said that the cards were—that we were
signing the eard$ so that we could ge¢ an election down

at the plant. i ‘

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Opinion of the Second Circuit

Q. Did you ask any questions? A. Yes, sir.

—-Q. What was the° question you asked? tt “A ‘
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| ‘Opinion. of the Second Circuit

also heard of meetings on Sunday afternoons in November

and December but heard there never were more than 17

present and the earlier effort. seemed to have. died down.

-He heard about the meeting in late January and thought_
; there were about 35 to 40 persons there, most of whom -
‘signed cards. As he calculated, adding this number to‘ ‘the
17 who had attended meetings in November or December,
»,,_ would bring it up to about 45. This was an inconsiderable

$number in view of the size_of the unit. He also testified

that the Company ‘had many older employees who had been
with the Company at the time this very Union had gone

through prior elections, which ‘the Union had always lost.

He also testified that he heard that cards were being signed

‘by employees just “to get people off their backs” and he

did not feel that they were signing “without this pressure
on’ them.”
7
Tay lor's doubt was not soles because the Trial Exam-

- Iner did not believe him. Indeed, his testimony was direct,

as

responsive and frank, so far as we can tell from the record.
The rejection by the Trial Examiner of the Company’s

alleged good faith doubt.seems to be based on some theory >

of punishment ‘for the alleged unfair labor practices which,

even though most of them happened after the period”

February 9—February 14, are supposed to eviderice a de-

termination “to gain time in which to dissipate that major- »
ity.” Hixaminer adds as a further eason that : %
the employee witnesses produced at the aes ng had been’

first interviewed by counsel for the Company only a few
days before the hearing. The Trial Examiner evidently

* thought that counsel should have interviewed the employees |

some time. in ‘February or March. Had he done so, it is
easy to imagine that this would have been alleged as an-.
other unfair labor practice. This i is-just another instance’
of the “damned if’you Ren if you don’t” approach

Transportation Company. Inc., decided January 9, 1969,
Slip Sheet p. 863 at p. 878: ‘Moreover, when the interview-
ing was done, scrupulous care: was taken to advise the. per-
sons interviewed that they were not required to answer
the questions if they did not wish to and that whatever
they said would have no effect whatever on their continued

employment.

~ A further argument on the good: faith issue is that the
ei nion in it» letter. of F ebruary 9, 1967 offered to prove

_ it had a majority and the Company did not accept this
2. offers A similar. argument isfound ir. Board rulings and

court Opinions in many cases: of the:same type ‘as the one
before us. We hope: this opinion will help. to expose the
unreality and complete futility of such alleged offers to
prove possession of a card majority. Of course the Union

does not mean that it proposed to let the employer see

the original cards and do its own counting. If the Union--
had meant: to pre a cross-check by the employer, it -
would have said so. "If what is meant:is to submit the cards
to some impartial person for a count, where could. such a ~

eized“in.V. L. R. B. v. Dorn’s ..

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Opinion of the Second Circuit

person be found with the requisite knowledge and exyieri-

ence to make a proper count, in view of the fact that the
count as made by the Board itself was full of errors, mis-
calculations and ambiguities, as we have already demon-
strated? How would the im artial person, perhaps a priest,
. a minister’ or a rabbi, knéw whether to go by the dates

on the face of the cards’ or the dates on the back? . How
would he know the correct, number of persons in the unit?

If he counted as of February 9, 1967, which is the most
natural date to select, he would /éome out with the answer
that the Union did npt have py gemsony Above alll, low
would he know what je presen ations had been made, and
what ‘relevant factors Had been concealed by the union
organizers? The whole thing is absurd. The plain truth
of the matter is that the offer of proof is of no. conse-
yiuence whatever in this ease: The emplover had no alterna-
tive other than to disregard it.

“While the Trial Examiner concludes that the asserted
reasons for withholding recognition “have no basis in fact,”
we are of ae ontrary V lew. ;

© fs the Bargaining Order in This Case an: Appropriate
Remedy for Enforcing the Poliéy of the National Labor
Relations Act? |

-

What do all these miscalful:
law by thesBoard ad

tions and errors of fact and

A Surely they do not support
the widely *held suppositiog that the Board and the Trial
Examiners: have a special! expertise to handle this type af
case. ‘This “representation”: card business is an abomina-
tion. As presently administered it is a- -pro-Union, device
that serves no other purpose than to afford a method by

which elections can be by-passed and the Unions ushered
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Opinion of the Sgeond Circuit

‘ : oe Pee
in without giving the employees individually or. collectively
any voice‘in the matter. ‘And - is-accomplished by the .
invention of new per se’ rules of/evidence and new stand-
ards by which-the proofs are to be evaluated, that fly in- -
the face of common sense and elementary concepts of jus-
tice\and: fair play.

Th e very keystone of the Act is Section =

. | Rights of Employees

See. iz ‘Employees shall have the right to self-
organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives
of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also
haye the right to refrain from any or all of such ac-
tivities except to the extent that sucli right may be
affected by an agreement requiring: membership.in a
labor organization as a condition of e mploy ment as
norms j in section ’8(a) (3).

The invention and implementation of a scheme by: which:
employees can be befuddled into thinking they are asking
for a free election at which each can cast a secret ballot
either for or against the Union, whereas they are in fact. |
held to be signing away this very right without knowing
they are doing so, seem to us to be a clear Violation of
Section 7. By the same token the bargaining order in this
case nullifies the beneficent purposes of the Act and ini.no -
possible way can be said to effectuate the purposes of the
Act. Tlie forgotten man seems to have been the employee
who was oné of those who comprised the unit of produe-
tion and maintenance workers in. the- Company’ S Juniata
Plant.

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Opinion of the Second Circuit

Paste II

The Unfair Labor Practices.

-We sustain and. will enforce the Board’s finidlirige of a

'. Section 8(a) (1) violation for havi ing reprimanded employee -

Brown for Union’ activities during working hours, and we
also sustain and will enforce the Board’s finding of a See-
tion 8(a)(2 ) and: (1) Violation for establishing, and then
dominating and supporting the Employee Committee after
the election. We set aside and refuse to enforce all the
other findings of unfair labor practices by the Company as

not supported by substantial evidence on the record as a

while. Each of these findings will now be discussed in some

wee

The Meetings With Small Groups oe Employces.

*. detail.

ie Ww sii before the hii, and w ith the election in

mind, the management of the Company decided to hold a -

_ Series of meetings with small groups of the employees,
sometimes with 5 to 7 employees, sometimes with as many

as 8 to 10 employees in attendance. The issue js whethe®

or ‘not the discussions at these jnectings interfered with,

restrained, or coerced. the employees in the exercise of their
’ Seetion 7 rights.

In this Cireuit the controlling authority “is Bourne y.

N. L. R. B., 332 F. 2d 47 (2d Cir. 1964), where we held,

at page 48: “Under our decisions interrogation, not itself

threatening, is not held to be an unfair labor practice. un-

. less it meets certain fairly severe standards. ” Five factors —

. are frequently relevant: (1) whether there is a record of
employer hostility; (2) is.the information such as to have

a potential use against an individual employee; (3) the »

ET ONT AO I NN I IT SS

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— of the Second Circuit

identity of the peer (4) is s there unnatural formality
in the place and manner of interrogation; and (5) the
truthfulness of the replies.

Before applying these standards it is well. to bear in

_ mind that the nieetings with small groups of employees
were dialogues rather than interrogations. What manage-

ment was trying to accomplish had a double aspect: (1) to
ascertain from the employees what. their gripes and com-

/ plaints were; and (2) in the éontext of a discussion of what
~ the employees thought the Union could do for them in the
light of these complaints, to counter the arguments put
forth by the Union in its books and pamphlets and by word

of mouth. The employees had no reluctance to voice their
complaints. Indeed, in many instances these were stated
with some enthusiasm. Randy Thompson, one of the ™em-
bers of the Union Committee and a strong Union supporter,
testified that the method pursued by Taylor was to read

__ fropm_a book that had been passed out at the gate by the

Union “something about the booms are dropping,” and then
comment on what he had read in order to give the Com-
pany’ s point of view on the particular subject covered by _
_ the quotation. Naturally and properly the Company took
the position that the employees should cast their secret
ballots for the Company and against the Union... Under —
these circumstances, assurances against reprisals would |
have been wholly inappropriate.. Moreover, the fact that
the discussions were held with small groups rather than
with individuals is a further support for the Company’ Ss
position. ie
We proceed to apply. the Bourne standards :

(1) In this ¢ ease there is no record whatever of hostility
tothe Union. - . . gett Se

29a

Opinion of the seas Circuit

of (2) There were no threats, direct or indirect, to dis.”

charge amy. employee nor was any employee discharged.
Indeed, we can find notiting in this record to support the
view that any. of these dialogues was designed to probe
for information that could be used against any.of the em-~
ployees. There was no grant of benefits. to the employ ees,

7?

(8) Those who siniilloeaia these discussions varied, gen-

erally Taylor, the Plant Manager or Vice President Elden.

or -both were present. Lewis and Rabenstein were also
present at some of the meetings. Lewis-was the training
,manager and foreman of the third shift. Rabenstein was
' Standards engineer and responsible for the “method.time
measurement” system. Both. were properly found by the
Board to be supervisors, Taylor, Lewis and Rabenstein
Were in constant day-to-day contact with the employees,

Elden also but to a lesser degree. There is no indication. .

that any one of these three appeared as a formidable per-_

____ sonality who was held in awe by. any, of the employees.
The discussions appearing in the record seem to have pro- °
ceeded on the part of the employees in a natufal and quite
candid: and uninhibited way.

(4) As above’ indicated the dialogues proceeded in the
most informal manner. But the place where they were
held’ was the subject of extended testimony and discussion
at the hearing. This was becaus¢ the Union was trying to
make it appear that the room had the stamp of high-level
management and discipline upon it in such fashion as to
overawe the employees.- While in one sense this room could

be called the conference room, ‘this. is only. because there |

was in it’a conference table surrounded by 8 chairs. ° In

fact the employees were constantly in and out of this room, 3

as it contained the desks of Grossman and Kozak, a Sick

\
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30a
eo: Opinion of the Second Cixeuit

room or + dispengary, the Xerox machine ‘and certain files.

It seems to us¢that the only reason this room was chosen

- for the meetings is that it-was the most convenient room

- in which to hold such discussions. This was a fanitliar and

reasonably~ quiet area and it was certainly nota clearly
_ demarked, seldom-entered management iehaicon 7

(5) The Sata: of the replies to questions is sup-
‘ posed to indicate the fear or lack of fear or inclination
to evasion: experienced by the employee. Here the readi-
ness of the employees to discuss their gripes dispels any
notion of fear. “The whole atmosphere is epitomized in
employee Melvin Kintz, Jr.’s testimony that,-at one of
these meetings he was asked why he needed a union to
speak for him since he* spoke so well for himself, and he ©
‘replied that it didn’t matter how well he spoke for himself
if nobody. in authority would. listen.. °

The finding of interference, restraint or coercion of
employees by these group meetings is wholly unsupported
by substantial’ evidence on the record as a whole. Indeed,
unless an employer can in some such fashion as in these
group meetings put its side of the case before its employees
‘just prior to an election, the Union with its- professional
- organizers such as Frazier and Meyers, and its books,
leaflets and pamphlets, would have the field to itself.

a

B.
The Alleged Threat to Glose the Plant.

This is the most serious and the closest i issue before us.
Schwarzenbach, the President of the Company, had not,
at least for some years, addressed his employees. In what:
he had every reason to suppose was a critical hour he. ad-

8

3la~
Opinio of the Second Circuit

dressed them in s eral shifts a few days before the elec-
tion. Here are s me excerpts from his speech: .

To say J am concerned about the future ‘of. the mill

is putting it mildly.
_ That/he had invested a lot of mo y in the plant,

that te could easily sell it or lease it to a company =a

like Sylvania.

That it was an old company, which had been in the

area for a long time, that the plant had gotten along
without a union, and that if the Union got in or failed

\ to get in ety were going ‘to a to make a | 0 of it

either way.”

A few employees testified that Sighinrwedtbeth said
he would try to keep the plant going if the Union won,
but .he didn’t see how he could do it.

: Seliw yrarzenbach also shade referencé tq the permanent clos-

ing in 1953 of the Altoona- Rayon plant.

On March 2, 1967 the Company issued to its employees |
a single-sheet cartoon showing a sketch of its Juniata plant ——

with the following in large print:

We have, here | in ae one of. the finieat _textile
mills in the world . . South Carolina not excluded.

— (Don't let’s wreck it now !)
)

Below .this heading i is a sketch of a plant in ruins, with

the subliead: “Remember ‘Altoona Rayon?”

The gist of what remains to support this charge of
threatening to move the plant is contained ‘in the following
quotation from Schwarzenbach’s letter of March 9, 1967
to the employees:

No matter what the TWUA may promise you, tee

Juniata record, i is a darn good one. Compare your

Brrr rrcseteeney a eee

Opinion “of the, Saged Circuit a

wages, your holidays, your bendats ‘to industries,
to those in our own Front Royal mill for that matter!
_ Look at Juniata’s 20-year record of around-the-clock
employntent. And ‘the TWUA!? Why isn’t there a
single major textile operation left in the northeastern
states? Is that the kind of te security the union soepe
talking about?
' Why is if that today virtually .all our ‘posmpetition is
located in the South? Simple enough! The ‘mills down
* there feel safe from the bickering, dissension and un-.
reasonable demands that come with _. TWUA. Re-
member Altoona Rayon?
Virtually all- of Stehli’s fabric requirements now \

- are being woven down south. These are fabrics which *

for many a year were mounted on Juniata looms. _
Those same southern mills are just waiting to supply ~
Mr. Hommel with every yard. of computer fabric he
requires.. For Juniata there is no alternative but to
again become competitive. (Emphasis in original.)

It was stipulated that Altoona Rayon had closed its: plant |
permanently in 1953 while under contract with the Textile
Workers Union of\ Want the Union involved in this.
case. ¥

There are. occasional references in some of the group
meetings to “the possibility that the mill might, be closed.
The Trial Examiner reports an instance in which Taylor
referred to. the “New England” plant closing down because
’ it could not compete, and Randy Thompson asked him point
blank “if he was saying the Union caused them to close’
down,” to which Taylor replied, “You said that, not us.”
In.a similar incident employee - Kintz testified that Elden —
replied, “I’m not allowed to say that.” In another incident,
employee Wilson testified that Rabenstein was — be-

% ‘33a

Opinion of the Second Circuit

cause, if the Union got in, it could possibly mean his job’

and many others. We give these peripheral facts solely
for the sake of completeness. The real. thrust is in the
speeches, the cartoon and the letter of March 9, 1967, sup-
plemented by Schwarzenbach’s letter of March: 20, 1967,
after the election, in which he stated, “what actually was
at stake was the future of the ‘mill and the long-term se-
curity of your,job.” os ane

We thus approach the sensitive area of First Amendment

rights of free speech where in a variety of contexts the

Supreme Court has urged that these preferential rights

be preserved. In particular we are to decide whether what

was said and. written on behalf of the Company exceeded —

the bounds of lawful expression within the meaning of

Section 8(c)° of the Act, which was a new provision and -
became part of the Taft-Hartley Act in 1947. We follow |

and reaffirm the rationale of N. L. R. B. v. Golub Corpora-
- tion, 388 F. 2d 921 (2d Cir. 1967), in which our’ Brother
‘of the historical background of Section 8(c). as

Thus, the test is whether the fears expressed by
Schwarzenbach were “shown to have so far transcended
the bounds of reason as to justify the Board in finding them

Friendly illuminated the text with q most helpful sketch

to be disguised threats of reprisal.” 388 F. 2d at page 929, .
Doubtless a good faith doubt or prediction “could: so far

outrun any possible basis for it” as to justify the Board
in concluding that a threat was intended. 388 F. 2d at page
re eae , :

9 See. 8(c) The expressing of any views, argument, or,opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of:an unfair labor practice

under any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.

~

Cd

34a ae

Opinion of the Second Circuit

What was the crisis that impelled Schwarzenbach to ,

write in his letter of March 9, 1967: “To say tliat I am
concerned about the futiire of the mill i is putting it mildly”?
- The answer is to be found in the letter, which according to
the teaching of Golub, and of common sense as. well, must
be taken in its entirety. Thus viewed, and we have -repro-

duced the letter in the margin,”° the crisis was an economig

.

ss 10. . (etterhead of The Schwarzenbach Huber Co.,
res 0 Park Avenue South, New York, N. Y. 10016)

March 9,-1967
Dear Employee: __,.

The Juniata mill has been through : a number of crises in its 54-year
history. None, however, do I consider as Serious as the one it faces right
now. To say that I am concerned about the future of the mill is
putting it-mildly.

About three years ago, after more than a, Jackie of progress and

steady employment, performance at Juniata: began. to slip. To make
matters worse, at about the same time our main product, off-loom acetate
fabrics, began losing favor with the consumer. “Our largest customer,
Stehli, under. severe competitive pressure, began checking around for
another source of these fabrics. A year ago they discovered that a
better quality-piece of goods could be purchased, at a lower price, from
that southern giant, J. P. Stevens. Since that day — orders _
been few and far between. .

Juniata, to survive, now required not only lower costs ak Nis
seconds, but a new product! Fortunately, our typewriter and computer

ribbon sales had been ‘growing slowly but stgadily. Here ‘possibly was °

the product! Last, spring it was decided to Strip Front Royal of these
constructions, and concentrate all nylon weaving at “Juniata. We. be-

lieved a solution had been found, but alas our troubles had only begun!»

Most of you will remember last ‘summer’s chaos at Juniata. Low
‘efficiency, terrible quality, poor earnings, all of which led to astronom-
‘jeal financial losses to the company. Worst of all, we ‘were no longer
delivering goods to our customers. ’

In desperation, our Industrtal Fabrics Division repeatedly. requested y

permission to have their goods woven on the outside. My answer this
time was no for I knew that once these fabrics were handed over to a

southern mill they would mever again be woven - Juniata, Without

_

this work the mill was dead! ©
_ Just when things look blackest, efficiency and quali? started to pick
up. By the end.of the year the mill was back under MMisonable contrbl
and all of us in New York heaved a sigh of relief. Though costs were
still a long way from what they: will have to be, and seconds still a
burden, we were back in business and -once’ again shipping goods to

aa

% 2
> Sp eI RE ME Eee Tes ne ENS
STRIATE IO ER RE fy ~

. »
7
TP pT ee Opt

SO RS ES

.Y

ss ate oe

PEON ELLY LTE ELIOT EE RD a Ll MO ee
+

.

40a 4
Opinion g)rthe Second Cireuit

told Lewis that he had no intention of being President of
the Union. i ‘y+ oe

How this’ disposition of an ‘idle rumour running around
_ the plant can be inflated into an Unfair Labor Practice is,
beyond our comprehension. We set aside this finding of
violation of Section 8(a)(1) and refuse to enforce it: This
is included in the general catch-all of Conclusion 7 of the
Trial Examiner’s decision, adopted by the Board. The vari-
ous findings of Unfair Labor Practices in violation of Sec-
tion 8(a)(1) are so scrambled and fragmented in the deci-
sion of the Trial Examiner that we may have missed one
or two minor items, but we think not.

es
5B ;

The Reprimand Administered to Clyde Brown.

While the incident is not one of great consequence, we
think the Company did discipline Brown for soliciting for
the Union in the plant during working ‘hours, whereas it
had previously followed a very liberal policy of permitting,
at least on one occasion, solicitation for other than union
purposes during working hours. We sustain this finding
of violation of Section 8{a) (1) and will enforce it, as modi-
fied by the Board. This is the only one of the alleged viola-
tions of Section 8(a) (1) summarized in Conclusion 7 of
the Trial Examiner and adopted and modified by the Board
that we sustain and will enforce.

The Employee Committee. |

After the election the Company thought it was a eoed |
idea to form an Employ ee Committee’ with rotating groups —

\

IN

4la

Opinion of the Second Cireuit

of employees to bring complaints of the employees to the

attention of management and assist in a proper, just and

_ equitable processing of these complaints. The Company

chose the employees who were to serve on the ‘Committee,

| paid them for the time. they spent on the business of the

Committee and controled the wliole affair. This was a clear
violation of Section 8(a)(2). There is no doubt that ‘the
Committee was a Labor Organization as defined in the Act.
We Sustain this finding of the Board and will enforce it,
despite the fact that the Company voluntarily disbanded
this Committee on July 27,\1967. This is Conclusion 6 of
the Trial Examiner, adopted by the Board. : ?

We permit the order setting aside the election to stand,
not for the reasons given by~ the Board, but because we
think it is better for all concernéd to have a new election,

if either the-Union or the Company so desires,

.
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— 48a Ae
Opinion of the Second Circuit
APPEND IX ;

The “Répresentation” Cards , Ss
~ Reproduction of the‘Front and Back of Card No. 1
> at? (F ;
am: LAVGEVECKER "ron as
_TEXTILE WORKERS. UNION OF AMERICA
Affliste of the AFL-CIO and CLC ee
| (DATE): 7" City__ ; :
(RECEIVED BY) - OME PHONE we. 7% ae 2

(Back)

fi
Summary of Data Contained on Front and Back of
ae Cards Nos. 1-122 Inclusive .

a -«

‘
OPEC AAC LOST hy
LP TILL LE TOME

PEO ATR

x SRO SEAT
LEE TA TOEE DS TAD LONER ENE I IS, OS ~
- e

TLS ate PE STEIN

et

an a te

en eng Dawe el « --e
we — erie
° ,

oe i 44a
Opinion of the Second Circuit.

Card No. 1: . ; a ee
! front

David Lengenbacker _ 1-29 1967
received by CEP, a

- back . ;
GCX # 20-1 received Jan 29 1967 . signed @ meeting CEF .
Board Stamp 10:15 Peb1l3 1967 es, oy

Card No. 23
front

Anthony R. Salome | 1/29/67
received by CEP: i
° * GCx # 20-2. received Jan 29 1967 signei 6 aetting CEP.
: / Board Stamp 10:15 Feb 13. 1967

-

Card No. 3:
« Ye , front

. Joyce Jeweil : 1/29 1967
received by CEP, :
wo si = ; 4 ;

GCX # 20-3 ° feceived Jan 29 1967 signed @ meeting CEP.

Board Stamp 10:15 eb. 13 1967

Card No. 4, F ; he
front "

Melvin L. Wyland Jan 29 (1967
received by --- |
back
—GCX # 20-4 = received Jan 29 1967 , signed @ meeting CEP,
Board Stamp 10:15 -Peb 13, 1967 :

@

ve

(2)
4

e

. “ °
.
4 } 45a eet
tap :
7 ESN > :

‘Leg ;

- ; wa - 5 ¥ y oho , :
_" Opinion of the Second Circiut |
or Ot a cape aie
, f - oN 4

\~

Card No. 5: 0) © a “ BE
ow Bhan ' front aay °
Richard Wiley | Jan 29 1967~* - es
received by --- — xs
back.
GCX # 20-5 received Jan 29 1967 signees meeting CEF.
Board Stamp 10:15 Feb 13 1967
Card, No. 6:
Naomi Wasmeier l/ 29-1967 ;
received by CEF, __ ;
back us fee
GCX # 20-6 received Jan front /
Walter Segplasior Jr 1-29 1967
received by CEF;
>
back
GOX # 20-19 received Jan 29 1967 signed @ meeting C2P.
Board Stamp 10:15 Peb13 1967 5
> ;
* Card No. 20: :
front
James Edelblute ~~ Jan 29 1967
_ Feceived by CEP. S/S ¥
back *.
GCX # 20-20 received Jan 29 1967 ‘ gigned @ meeting CEP,

Board Stamp 10:15 Pebi13 1967 — “s

~~

\ 49a .
‘Opinion of the Second Circuit

o

Card No. 21;
, front
Betty Elders 1/29/ 1967
received by CaP,
back
i GCX # 20-21 received Jan 29 1967 Signed @ meeting CEP,

Board Stamp 10:15 Feb. 1} 1967

Card No.. 1] and (

Board Stamp 10:15 Feb 13 1967 _

Card No. 34: ’
, front

; Donald P. Bradley 1-29 1967
‘received by CEF, .
GCX # 20-34 received Jan 29 1967 signed @ meeting CEF.

poard Stamp 10:15 Feb13 1967

?

front

Card No. 35:

Ronald E Brackbi11 Jan 29 1967
received by CEP.
back | ,
GCX # 20-35. received Jan 24 1967 signed @ meeting CE?.
Board Stamp 19:15 Feb 13 1907
Card No. 36: :
front
Prancie Taddy January 30 1967
received by --- “
back .
ocx #'20-36 received Peb1 1967 |. Left @ Hotel Desk CEP.

Board Stamp 10:15 Feb 13 1967

vd . 5p

53a :

~

Opinion of the Second Circuit

Card No. 37: .
front

Kenneth Delozier January 31 1967 Q
received by Committee
; back
GCOX # 20-37 received Feb 1 1967 Left at Hotel desk CEP,
ar
Board Stamp 10:15 Feb 13 1967
. Me ?
Card No. 36: i.
, front
Donald Dambeck, 1-29 1967

ffi
_ received by, Committee

‘back

SCX # 20-38 received Jan 30 at Plant From R.

Thompson CEF,
Board Stamp 10:15 :- Feb.13 196

g . ’ . ‘
Card No. 39: , - : y

Arthur Jock 31 Jan. 1967
- received by Left 2 Hotel Desk -
back ; ;
GOX # 20-39 received Feb 1 1967 Left @ Hotel Desk CEP,

Board Stamp 10:15 Feb 13 1967

~
Card No. 40; ; :
front
iouis”Delozier 1-29-67 ales . on
received by Committee . ;
back .
GCX' 20-40. received Jan 30 1967 "At plant gate Prom

ee R. Thompson CEP,
Board Stamp 10:15°* Feb 13 ©1967
a

d4a
Opinion of the Secbid Circuit

Card No. 41: ’

John H. Hamel 1/39 1967

received by Committee i

back :
>

GCX 20-41 received Jan 30° 1967 At Plant Gate From
Se : R. Thompson CzF.
Board Stamp 10:15 Feb 13 1967

Card No. 42:
. Pran®

~elvin 5. Kintz, Jr. January 3) 1967

‘received by --- : & :
- back “py

_ :

_3CX 20-42 received Jan 39 1967 _ Prom R. Thompson CEF.

“Board Stamp 10:15 .Feb 13 1967 ?

K3
Card No. 43: :
front.
nxichard Killinger Feb. 1 1967

received by R.?T. CEF.

back y op

3CX 20-42 received Feb l 1967 @ Plant gate CzF.
soard Stamp .10:15' Feb 135 1967 |
ct ° °
Card No. 44:
front
Clinton =. Lane 1-31 1967

received by Committee

back
SCX 20-44- received Jan 30 1967 / At plant ‘gate Fro
: ig . Re Thompson CEFF.

f Board Stamp 19:15 Feb 13. 1967

ad AN

re

‘55a

Opinion of the Second Circuit °
-- Card Wo. 45: 3

front Pi Te ocreates f
Stephen J Lockard - Jan 30 1967
received by Committee
? GCX 20-45 received Jan 30 1967 ' At plant gate Pros

ae R. Thompson CEP.
Board Stamp 10:15 Feb 13 1967 . e

\
Card No. 46;

3 front
Mary no De Bartolome 2-3 1967
received by January 30 1967
received by Committee .o ~ ;
GCX 20-51 received Jan 30 1967 At plant gate from

- pete i R. Thompson CEF.
‘Board Stamp 10:45 Feb 13 1967 -

Card No. 52: . , ; ors. ,

April Fahr — January 29 1967 :
“received by Committee >
> back
{ “GOX 20-52 _rpegived Jan 30 1967 - At plant gate From
j ' Re Thompson CEF.

'f Board Stamp 10:15 .Feb13 1967

—T

57a
Opinion of the Second Circuit - |

S

Card No. 53: | :

front A; #
: Hilee Ruth Pisher ° | Jo ‘1967 ;
received by --- ‘. ’ : tion
j back | Ape. “Sy Se
“ GOX 20-53 received Feb 1 1967 ss Left at Hotel Desk
Board “Stamp ‘10915 Feb 13 1967 ea
Card No. 54: mom
| ry front
Ray. T. Ecker Ray T. Ecker 1-29- 1967
received by Committee °
a back ve
eae - QOK. 20054 = ‘received Feb 2 1967 Prom 4. Salone at
ay Board Stamp 10115 Feb 13 1967 eer
‘
Card No. 55: i
» Eront | : |
Fred Fornwalt ! 2-2 19675 *.
received by Committee.
. aie ;
. GCX 20-55 received Feb 2 1967 ~ “Rec“a from A.: Salome

at Hotel CEF. .
Board Stamp 10:15 Feb 13. 1967

ae
' Card No. 56: ; : .
et front ‘
' Mary C. McCartney 2/t/ 1967
: received -by Committee
me back : .
GOX 20-56 received Feb 2 1967 - Rec/d from A. Salome

: at Hotel CEF,
“ Board Stamp 19:15 Feb 13 1967 :

: _ ‘ : tr.
» , ‘ ‘
° y

ati 9 wr , R .
Opinion of the Second Circuit
Card No. 57: : ;
Y . front ; é
“Richard ‘E. Brooks _ Ped l, 196% 1967 pi we
. Pa °c .
received by Committee
i | back
gees /
: ; GCX 20-57 received Feb 2; 1967 Rec ’d from A. Salome
ma ; i: at Hotel CEF.
TC te ee Board Stamp. 10:15. Feb 13% , 1967 :
Card No. 58:: =
F ; front
Janét R., Gibbons : 1/30 1967
received by JJM .
3 ‘back ,
GCX: 20-58 received Jan 31 1967 From Myers
? ° my ays CEF.
‘ Board Stamp 10:15 Feb 13 1967
~ : we ’
Card No. 59:
\ front >
Walter iLindemer 2/3. 1967
received by Edleblute
' - 5 ; back

Card No. 60:

58a

Gox' 29-59 . received Feb 5° 1967
Board Stamp 10:15 Peb13 1967

a
a

- front

: Peb.
‘Mary Lou Davinsizer Jan. 6

‘received by C. Brown CEP.

back -

GCX 20-60 oo

Board Stamp -10:15 Peb 13 1967

Prom J. Edleblute
CEP. :

?

1967°

‘Rec “4 from C. Brow
at Plamt gate Feb. 6,
1967 CEP.

od

carg No. 613

—

59a o

ion of the Second Circuit ;

Wa

~ back
GCX .20-61 received. Feb 1 1967

Board Stamp 10:15 Peb 13 1967

@

Card No. 62: - roens en ace
5 front
Rody Ecker . Feb. 1° 1967

Card! No. 63:

received by --=
back
Gex 20-62 received Feb 1 1967

Soard Stamp 40:15 Feb 13, 1967

Card No. 64;

front
Lilia Diehl Jan 30 1967
received by Diehl CEP,
GCX 20-63 received Feb 1 1967
Board Stamp 10:15 Feb 13 1967
« {font Z
William L corl 30 Jan 1967

received by CEF. @ Plant Gate 2/1/67
back
“GCX 20-64 received. Feb 1 1967

G%ara stamp 10:15 Feb 13 1967

Jan 31 1967
> a

an

By mail CEP..

¢

@ Plant Gate CEF.

‘ @ Plant Gate CEF.

2 Plant Gate CEP.

;

60a

> | Opinion of the Second Circuit
Card No. 05:
frost tit; |
James BE. Lear ; 2/1 1967
received -o-
| GCX 20-65 received Feb 1 1967 At Plant Gate OEF.

Board Stamp 10:15 FPebi13 1967
° ‘
Card No. 66: :
we front
George A Kauffman —1/3o/ «1967

George R. Kauffman (typed)
received by --- . .

back
GCOX 20-66 received Peb 1 1967 Plant Gate CEP.

Board Stamp 10:15 _Peb13 1967
b

Card No. 67: m:

fret
Wilbur K. Heary Jan 30 1967
received by -=- | :
back
GCX 20-67 received Ped 1 1967 @ Plant Gate CEP.

Board Stamp 10:15 Peb13 1967

ame

R. Gardner ‘Ir.

Card Wo. 68:

1-30-67 1967
received by Wilson CBF. °
Deck
GCX 20-68 ‘received Ped l 1967 @ Plant Gate CEP.

Board Stamp 10:15 Peb 15 1967

6la -

Opinidn of the Second Circuit

Card No. 69: ‘A eA
front

Jerome Green 2-1 1967
. received by Committee

beck
GCX 20-69 received Feb l 1967
Board Stamp 10:15 Peb13 1967

@ Plant Gate CEP.

Card No. 70:

front
Robert D- Zeak 1/30 1967 ro
received by Committee . ¢

back . t
GCX 20-70 received Jan 30 1967 At Plant Gate Prom

R. Thompson. CEP, é
Board Stamp 10:15 pPeb 13 1967

Card No. 71: . ; Pm
front
ante Daniel H. wilt January 30 1967

received by -««

back
3X 20-71 received Jan 31 1967 heed from &.
Thompsoao CEP.
Board Stamp 10:15 Peb 13 1967
Card No. 72;
Robert H. Weaver Jan 350 1967
received by Committee
back

GCX 20-72 received Jan 30 1967 At Plant Gate Prom R,
- Thompson C2P,
Board Stamp 19:15 Ped 13 1967

—

. 62a

ee

Opinion of the Second Circuit

Card Ho. 73:
. front
Carl Wasmeier 1/29/67 1967
re received by Committee
back —
‘ GOX 20-73 received Jan 30 1967
" Board Stamp 10:15 Peb13 1967
Card No. 74: ;
' froot - ahi
Mildred Sith” Jan 29 1967

received by Coan} ttee

_ back |
GOX 20-74 received Jan 30 \1967
Board Stamp 10:15 Feb 13 1967
Card to. 75: y \
q {root
Gerald K. Settle “Jan. 30, 1967
received by ihe
back
\ GCK 20-75 received Jan 51 1967
Fed 13 1967

Board Stamp 10:15

Card No. 76:
front

James C. Russ
received by Committee

back ‘
received Jan’ 30 1967

»

.

GOX 20-76

Board Stamp 10:15 Peb13 1967

At plant gate From
R. Thogpson CEP.

7

At plant gate From
R. Thompson CEP.

Ree ‘a4 from R. Thoapeapn
CEP.

Jan. 30 th 1967

At Plant gate Fron
R. Thompson CEP.

° 63a

.

Opinion of the Second Circuit

Card No. 77:

front

Archie Prosperi ot, | 1/30 1967
received by Committee
NC as
GOX 20-77 received Jan 31 1967 nec a from R. Thonpson
- Board Stamp 10:15 eb 13 1967 i

Card No. 78; - ’ gat

front
William Nolan ~ «Jan 29° 1967 ~ : }
, received by Comuittee | VS
GCX 20-78 received Jan 301967 At Plant gate From

. R. Thompson CEP,
Board Stamp 10:15 © Reb 13 1967

Card No. 79:

front

Thelma Nolan Jan 29 1967
received by Committee

back
SCX 20-79 received Jan 30. 1967 e At plant gate fron

R. Thompson CEP,
Board -Stamp 10:15 Feb 13 1967 .

”

Card No. 30: ,
; front
Joseph Mueller 1/29 1967
received by a? 4
back
GCX 20-80" received Feb 3 1967 From Randy Thompson
CEP

Soard Stamp 10:15 Feb 13 1967

© unger

)

; Opinion of the Second Circuit

y

64a «

/

/

Card No. 31: cy Pe ;

fragt
Rudolph J. Mueller . 1-31 1967 ° =I
‘received by Committee 6
back

GOX 20-31 received Jan 31 “1967 ’ Prom R. Thompson COEF” ;
Board Stamp 10:15 Feb 13.1967 —

Card No. 82: ee
3 -\front ine s

Judy Massini 1/32 1967

received by --- -

back
CX 20-82 received Jan 31 1967 rec’d from R. Thompson
; CEF.
Board Stamp 19:15 Peb 13 1967
o—~
Card No. 03:
~ a front
Joan Mcintire 1/29’ 1967
received by Committee
back
: _* BOX 20-33 received Jan 30 1967 At plant gate Prok
, R.o Thompson CEF.
Board Stamp 10:15 Feb 13 1967
Card No. 84: :
. . , > front >
Raynor G. McGinnis * 1/30 1967
received by 2aT 9
- ~~. 4
pack ‘
GOX 20-34 received Fed 3 1967 - Proz xandy Thompson
. ' CEF. 2
Board Stamp 19:15 (Feb 13. 1367
- = : \ : ~ P

A

wT —

‘ & ad
‘ 65a E

mole t

. Opinion of the Second Circuit -

Card No. 65: : 4
Nancy 1 Wise 2/6 1967 --. F

received by James Zdleblute

back
f GCX” 20-35 ~ received Feb 6 1967 . 11:05 p From James
oor Edleblute @ Plant
Board Stamp 10:15. Feb13 1967 Gate CEF.
Card No. 86: . .
: front :
Robert W. Singer 2-6 1967

received by J. Edleblute CEF.

° : a
~,

Pennsylvania

2/26/67 CEP.
; i Board Stamp 1967 Mar 2 am 9:40
. og .
s . a
° a bt c a

'
° 73a
y “"” Opinion of the Second Circuit
; Caré. No. 117; . ;
r ea! _ Stent
\, Clarence M. Aikens Mar. 6 1967
received by mail CEP.
4 back
ion GCX 20-117 received Mar 6 1967 By wail CEP.
Soard Stamp 1967 Mar 13 am 9:07
Card No. 114;
front
Charles L. Brown 3/6 1967
received by mail CEF.
back '
rs SCX 20-118 received Mar 6 1967 By mail CEP.

Seara Stamp 1967 Mar 13 am 9:07

Card No. 119:
front

Howard p. Mentzer Feb. 25 1967
ee received by C.B. CEP,

back

Rec’4 from Clyde
Brown at Beeting
Board Stamp 1967 mar 13 am 9:06 3/3/67 CEP.

Card No. 120;
| front
Céomeré Wilson Peb 24 1967

| received by R.t.

back

GCX 20-120 on--- Rec “4 from gan

vas

dy
Thompson 3/1/67
Board Stamp 1967 Mar 13 os 9:06

CEP.

T4a
Opinion of the Second Circuit

Card Mo. 121: .

7 {reat
. “Serald Ss. sodnie ~—— 3-2 «1967
. received by JJ Sanello
‘ back
GCK 23-121 ------ Rec d 3/2/67
J Cline myer CEP.
Board Statp 1967 Mer 135 at 9:07 ‘
; oa—
.Cafd do. 122: +
front
Donalrd 8. Pigliola “ ° fet. 27 1967
eal oa JIM."
back :
3CX 20-122 woee-- Rec’d from Janes

ee, of Meyers 2/23/67 CEP.
Board Stamp 1967 Mar 13 am 9:06

-
CEP.

75a

National Labor Relations Board Decision and Order

On December 29, 1967, Trial Examiner Phil Saunders
‘issued his Decision in the above-entitled proceeding, finding
that Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Respondent filed
exceptions to the Decision and supporting~briefs.

Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National La-
bor Relations Board has delegated its powers in connection
with this case*to a three-member panel,

The Board has reviewed the rulings of the Trial Exam-
iner*made at the hearing and finds that no - prejudicial
error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner’s Decision, the
exceptions and briefs, and the entire record in this case,
and hereby adopts’ the findings," conclusions, and recom-

mendations’ of the Trial Exaniner, as modified herein.
- |

Respondent asserts in its brief that the Trial Examiner relied
on the fact that Nhe Respondent consulted its attorney before re-
‘plying to the Union's request for bargaining in finding that Respon-
dent had no good-faith doubt of the Union's majority status.- We
do not believe that the Trial Examiner relied on the fact that Re-
spondent consulted its'attorney, nor do we.

: * Although the Trial Examiner found that the Respondent en-

xaged in violations of Section S(a)(1) during the preelection period
and recommended dismissing the petition in Case No. 6-RC-4363,
he did not specifically find on the basis of the objections filed that
the Respondent had eugaged in activity warranting setting. the
election’ aside: we deo so fing and hereby set the election aside.

note that the Trial ixaminer found that the Warning
addresXd to employee Clyde Brown for envaging in Union-organiz-
ing activities violated Section 8(a)(1). but did not require the

Respondent to remove any reterence to such-warning from Brown's’

»

|

at a il

a. a

,

National Labor Relations Board Decision and. Order

; ORDER

Pursuant to Seetion 10(c¢) of the National Labor Rela-
tions Act, as amended, the National Labor Relations Board
aitopts as its Order the Recommended Order of the Trial
Examiner, as modified below, and hereby orders that the
Respondent, the Schwarzenbach-Iluber Company, Altoona,
Pennsylvania, its officers, agents, suecessors, and assigns,
shall. take the action set forth in the Trial Examiner’s
Recemmended Order, as herein modified:

Ll. Insert the followi ing ¢ as paragraph 2¢c) and reletter the

present paragraph 2(c) and subsequent paragraphs ac- -

cordingly :
a ‘

“(¢) Remove from the personnel records of Clyde Brown —

any and all reference to the warning given him for en-
gaging in union-organizing: activities.”

2 Insert the following as the tenth indented paragraph
in the Notice attached to the Trial /xaminer’s Decision:

We WILL remove from the personnels records of Clyde
Brown any and all.reference to the warning given him
for engaging in union-organiz:ng activities. |

Dated, Washington, D.C. ApR 17 1968°

F .
~ John H. Fannin Member
. ; Howard Jenkins, J1 Member
| Sam Zagoria, Member
(SEAL) “s NationaL Lavor Reiatrions Boarp |

personnel records. We shall amend the T rial Examiner’s Recom-
mended Order accordingly.

ae

77a

Trial Examiner’s Decision
Statement of the Case

PH SAUNDERS, Trial Examiner: Upona charge and four
amended charges filed by Textile Workers Union of Amer-

ica, AFL-CIO, herein‘called the Union, a Complaint issued _

on July 10, 1967, and an Amended Complaint issued on
July 26, 1967—*gainst ‘The Schwaréenbach-Huber ‘Com-
pany, herein called the Company or the Respondent. The
Amended Complaint, as further amended at the hearing,
_ alleges that the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (2) and (5)
of the National Labor Relations Act. A trial was held be-
fore ine in Altoona, Pennsylvania, and all parties were
represented by counsel and participated fully at the hear-

ing. Oral arguments wére waived, hut briefs were filed and -

the sdme have, been given due considerations.

Upon the entire revord in this case and my observation

of the witnesses, I make the following:

_°Findings of Fact ®t
I. The Business of the Respondent

The Respondent ‘is a New Jersey corporation with its
principal office, in New York, New York, and is engaged in
the mdnufacture of textile fabrics. During the 12 months
preceding July 1,-1967, Respondent received direetly from
outside Pennsylvania for use at its Altoona, Pennsylvania,
plant goods and materials valued in excess of ‘$50,000 and,

a. -

' To correct a few inadvertent errors appearing in this transcript,

Ll have’made ‘corrections in accordance with the General Counsel's
motion on‘same. xa

of
av

J

|

ee ee eee eee ee

Gg 78a
Trial~Examiner’s Decision
©

.

during the same period of time; Responde nt shipped di-—
rectly to points outside Pennsylvania from its. Altoona,’

Pennsylvania, plant goods valued in excess of $50,000.

The complaint alleges, the answer admits, and T find that
the Company is an employer engaged in commerce within

the mé@hing of Section 2(6) and (7) of the Act.

II. The Labor pia mcousetea Involved

4 e +

at-all tinrestuaterial herein, has been a labor organization
within the me: aning of Section 2(5)~of the Act. The Com-
pany denies that the Miaployee Committee, herein ealled
the Committee, is a labor organization within the meaning

of the Act.

«

Hil. The Unfair Labor Practices

The complaint, as amended, alleges that’ the Conpany
disciplined, ‘threatened, and interrogated employees .be-

cause of their union activities; that the Company spon-

sored, promoted, assisted, dominated, adininistered, sand
contributed support to, the Cominittee : that. since on or

about: February 9, 1967, a Majority of Respondent’s em- -
plovees in.a produetion and maintenance unit designated

and selected the Union as their bargaining agent, and
that since on or about February :14, 1967, the Company

has refused to recognize and hargain with the Union. The _
main and overriding issue in this case is whether or not

the Union, sincé on or about Februpry 9, 1967, has been

the representative of a majority of the production and main-
tenance emplovees at the Company forthe purpose. of

é 7a ’

=f

Textile Workers Union of America, AFL-CIO, is, and’

A

$ . 3
Fis tee 79a
Trial Examiner's Decision

collective bargaining. The General Counsel and the Union
_ maintain that tinder the Bernel Foam decision, 146 NLRB
1277, the Company was obligated to recognize and bargain
with the Union notwithstanding the fact that the Union
lost the election. Other issués concern the” 8(a)(1) allega- .
tions and the Committee and the impact of these factors, .
if any, on the main and central 8(a) (5) allegation. ye
In late January, 1967,’ the Union began an organizing —
campaign among the Respondent's production and mainte-
nanve employees. On January 29, these employees began
signing authorization cards. On ‘February 9, the Union ©
sent @ letter to Respondent requesting recog nition. On Feb- .
ruary 14, the Respondent, by letter, réfused to jextend
recognition to the Union. On February 13, the Union filed
a petition for an election among the Respondent’s produc-
tion and maintenance employees ‘and. on F ebruary, 21, filed
an amended petition embracing the- saine unit. Pursuant
toa Stipulation for Certification Upon Consent. Election, .
an-election was conducted on March, 16, in which 82 votes.
"were. cast for the Union, 106 against the Union, and. 43"
ballots were challenged. aay \ oie cia
On March 2 23, the Union filed timely one to conduct”
affecting the results.of the election.’ Following an investi-

“y. gation by the Board's Regional Director on the objections, es ee

~’a number were withdrawn and the remaining were consol-
idated ‘in this proceeding with the unfair labor’: practice
complaint. The : APpropr late . consists: of the following:

~/
w

—_—_——

“MIP dates are 1967 tnless: Specifically stated otherwise.

‘

ae ; ;

‘

oh

°. 80a

Trial Examiner's Decision.

e

All production and maintenance employees-at the Re-
spondent’s Altoona, Pennsylvania, plant, .excluding
office clerical, employees and guards, professional em-
ployees and supey visors as defined in the Act.
we ay °
The Respondent’s answer admits the supervisory and
agent status.of Robert M. Sc hwarzenbach; Brooks T aylor,
Gerald Elden and: Merle Grossman, but denies such status
ax to W illiam, Lewis and Glew Rabenstein. a,

-

Plant “Manager, Brooks Taylor, testified that W illidm

~ Lewis is the training manager at the plant and as,a result

‘was foreman on the third shift, that Lewis’is responsible

for the development and administration of the Company’s
training and retraining proBram, that he directly. super-
vises the work of Joan laia and Ruby Evans when they act
as weaving. instructors, that Lewis has authority. to reeom-
mend the transfer of an emplovee to another type of work
and that his voice in such transfers would be an “important
recommendation.” This record-also shows that prior to the
March 16 clection, Taylor directed Lewis to talk to the
employees regarding the Union and to learn what their
grievances were, in order to ascertam what led to their

interest in the Union. @

Taylor testified that Rabenstein's title is standards engi-
neer, and in this capac ity he is Rep pOnes for the direction
of ‘this!meticd time measurement” system. The standards
ehetks (Terry, “Wray ) and the frequency checker (Chables
— Blair) work directly under Rahe nstein’s: supervision, and
he is also responsible for the work of Wray and Blair: At
cértain times, the weavinginstructors (Joan Laia and Ruby.

Evans) are also subject te lis supervision, Several days -

“,

R oot : e

-talk to the employees about the Union and the election, and

es 8la ne
Trial Examiner's Decision

before the March 16 election, Taylor directed Rabenstein to

e

to ascertain their grievances, :

The above admissions and testimony by Taylor reflects
that the work of Lewis and Rabenstein Was considerably
more than routine. “Lewis is responsible for training in cer:
tain operations of the plant, he specifically directs the work
of two weaving instructors, and ‘he ean effectively recom-
mend the transfer of employees who do not measure up as
potential weavers, Lewis, therefore, exercises considerable
discretion in making job assignments. Rabenstein-direets

the “M.T.M.” system, and at various times has under his

authority and. control five oy six employees, and, thereby, .

ry oie R ’
directs the work of these people. In view of the fact that
the authority exercised by Lewis and Rabenstein is not of
mere clerical nature, but requires the use of independent

. - Judgnyent coupled’ with -the right to direct: employees in
their work assignments—al] of which was amply demon-

Lewis'and Ra enstein,are supervisors within the meaning’
of the Act, and the Company is respousible for their con-
duct and statéments, Further indicative of the above, is the
admission by Taylor that prior to the.tlection he directed

«strated by me a of the plant manager—I find that

or asked both of them to talk to employees about the Union
and their grievances. In -theip respective capacities_the.
Company obviously felt that these {wo men were in stta-
fegic¢ positions to do so, and the Company would not have
bestowed such’ delicate: missions without thy knowledge or
understanding that they were a ‘part of the management

family. : go:

.
2
i
|

am : te !
Employee “Donald Bradley testified that. on or about .--

March I4. he was called into the office eceupied by Super-
% :

»

.

.

‘
moving of the.plant. and resultant loss of employment, if
the employees chose the Union as theit collective-bargain-

87a

Trial Examiner's Decision
ing representative. The leaflet of MarSy-1 shows a sketth
of the Respondent’s plant with the following heading in
large printing:

We have, here in Altoona, one of the inost finest textile

mills in the world . . . South Carolina. not excluded.

Don’t let?s wreck it now! ron ts

ts ) ~
Hicbaw: this heading is a sketch of a plant in ruins, with the
subhead, “Remember Altoona Rayon?” As pointed out. ear-
lier herein Altoona Rayon closed its Altoona plant perma-
nently in-or about*the year 1953, and at that time it had
been under contract with the Textile Workers Union of

America, AFL-CIO, the Charging Party in this ease. The

Marchletter sent to employees was signed by Respond-
ent’s president Robert Schwarzenbach. The first paragraph
states in part as-follows: “To,say that I am concerned
about the future of the mill is putting it mildly.” The next
—several-paragraphs of the letter outlines recent economic
and operational difficulties and.conciuding paragraphs con-
tain these excerpts: .

No company can survive selling its products at a loss,
and this is exactly what we have been doing these last
8 months * * * Look at Juniata’s 20- -year record of

around-the-clock employment, And. the TWUA? Why

_ isn’t: there a single major-_textile operation left in the
* northeastern states? Is that the kind of job security
_ the union keeps talking about ?.

Why is it that today virtually all our. competition j is
located in the South? Simple enough! The mills down
there feel safe from the bickering, dissension and wn:

reasonable demands that come with the TWUA. Re-

AO

- 88a
Trial Examiner’s Decision

member Altoona Rayon? * * * I firmly Relieve you have
absolutely nothing to gain by voting in tlte union.

Under date of March 20—after the election—President
Sehwarzenhach sent another letter to the employees con-
gratulating them on the outcome of the election and in the
second paragraph stated:

As a group you voted wisely since what: actually was
at stake was the future of the mill and the long -ferm
security of your job. ,

Insofar as the 8(a)(1) allegations are concerned—the
Company points and argues that in the speech by Schwarz- |
enbach, he merely stressed a concern for the-needs of: the
_- Company to remain competitive in the face of union de-

mands, and that there were no implications in the speech
or leaflet that the Company would follow in the footsteps—

of conan because of the Union. The Company also
maintains that the letters of March 9 and March 20 contain
' no more than\ an explanation of the Respondent’s concern
with their competitive position in event of union organi-
zation. The Respondent argis that the remarks by Lewis.
to Bradley were his own opinions, and that the purposes of
the small group meetings were: simply to asc ertain whether —
the employees had any complaints about their working con-
ditions. The Respondent would also discredit any infer-
ences in the fact that such meetings were held in the Com-
pany’s general office.° te

an See General Counsel’s:- Exhibit Nos. 5, 6 and 10.

*Schwarzenhach, Elden, Lewis, and Rabenstein did not testify
: in this proceeding, and, therefore. conduct and | statements at-
_ tributed to them —' undenied.

‘ tie 89a
. } . a . . ‘
| Trial Examiner's Decision

By systematically assembling small groups of employees |
shortly before the election and’ interrogating them regard-
‘ing their grievances which led them ‘to seek union..repre-
sentation, and under thdse circumstances further asking
employees why they wanted the Union and what they
thought the Union could get for them was unlawful inter-

a“

ferences with the organizational activities of. its employees -

atid violative of the Act. American Furniture Company,~.

{nc., 118- NLRB 1139, 1147. President Schwarzenbach’s
speeches to employées, as aforestated, went beyond the Re-
spondent’s concern to remain competitive and definitely
conveyed a threat—directly or indirectly—that the plant
would close-o1 move if the employees voted favorably for
- the-Union in the upcoming election. By making the specific
remark to the N ew England plant closing, as aforestated,
is ample evidence. that Schwarzenbach sufficiently planted.
his threat in ‘the minds of the employees and this is espe-
cially so when his speeches to the three’ shifts are viewed
in the context of Respondent’s other ‘unfair labor practices,

The leaflet and letters, as set forth earlier herein, also go-
heyond the protection afforded under Section S(c) of the
Act. The threat contained in these documents hada con- .

*

stant-and ringing message—if the Union Wins, We Move or

close.” By the continual implementation of this resounding
theme and with the repeated reminder that Altoona Rayon

or the New England plant had closed, the desired commnu-

nication to the employees had -been achieved, This’ also
hecomes abundantly pronounced “when consideration — is
given to the same theme contained in the speeches by Pres-
ident Schwarzenbach, and the same subject matter was also
brought up and intermingled in” thive various conversations

a

. > .
3° ie eg ; f .

.

LEEDS SLR RINT

= . . = SES Mt DOS opens
8 AREER PT ERTL CLIN EIT TE ILS cet . lh is
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90a |

Trial Examiner's Decision

o®
*

and interrogations with employ ‘ees at the numerous small’
group meetings. By March 16 the Company had most cer-
tainly. implanted. and cultivated this rapidly growing’ em-
bryo, and the election harvested the erop as duly planned
and ealeulated. It.appears to me that this matter is finally
put to rest with the Respondent’s own letter to its em-.
ployees on March 2\—4 days after the election. In this ,

- document the Company admits that the future of the ill

was at stake and also the security and jobs of the em-
ployees. As pointed out, the Respondent had achieved its
_goal and the employees were’ now again reminded that they
had been saved from ‘economic devastation; if not outright
extinction. The oral ‘and written word had béen used in
quantities to ac hieve the desired end—defeat of the Union
in the election. The etter of March 20 recapitulates what
the Respondent had been telling the employees all along
—the plant w ould be closed if the Union won the election.
The supposedly: hidden message so skillfully defised, now
emerges with operand complete clarity.

Supervisor Lewis’ statement to Bradley that he was con-
cerned about the future of his own job if Schwarzenbach
should move or close the plant was at least .an “implied:
threat that the plant would be closed or moved if the em-
ployees choose the Union in the election, and which was
only 2 days away at the time. this stagement. was made.
Furthermore, Lewis’ questioning of Bradley as to whether
he would become the union president and what the Union
told employees with respect to bumping’ was unlawful inter-
rogation and violative of Section S(a) (1). It is well estab-
lished that the illegality of the remarks is not étired by the»
casual nature of. the conversation or the personal relation-

Ola

Trial Examiner's Decision

. *
ena eR Ne ae ee
i is ~

Mp of the parties thereto, nor by the rejection of Lewis’
remarks or statements. The remark, prior to the election,
by Supervisor Rabenstein to employee Wilson that he was .
concerned with his own job as wéll as “many others,” must +

‘also be deemed a threat in loss of jobs if the Union won the
election. Also the credited testimony by Judith Massini to
the effect that the Company would only ‘bargain with the

: Union on the basis that existing employee benefits would

first be eliminated, has been deemed vio ative as unlawful :

threats and interference,’ and I so find here. As previously
set forth herein, I have also found. that the Company dis-
ciplined' Clyde Brown for engaging in union organizational |
activities despite the fact that there was no nonsolicitation '
rule or known plant policy against such activity, and the

Respondent’s conduct in this respect is violative of Section °

8(a)(1) of the Act. per Gen ~

_. On April 18, the Respondent mailed a notice to employees.
_and such notice was signed by Taylor. Its purpose was to
announce the establishment of the Committe’. The notice,
‘in part, reads as follows: | -

Just prior to the recent union election, I spent about |
two weeks in meetings with virtually every employee.
During those meetings, 1 heard. coniplaints that 1 |
thought were legitimate ant justified. Also; I heard a
complaints that probably could have been avoided or:

_ eliminated if you had been fully informed with respect
to the reasoning behind the actions which caused the
hard feelings. see .

i Cawer Welding and Metal Fabricators, Ine. 154 NLRB 954,
J62. |

Sah ats meee he ok
S AMR Se

came sat emer ane
Sana TRAIN OO RRR « ag
PEL SEEM SONNE TT :
SREP PIR Ds v2 a

Ati re 92a

Trial Examiner's Decision
During that period, the decision was made that if the
Union was rejected, we would try to. crganize and (sic)
Employee Committee. Hy purpose of the committee
would be to act as a grievailce committee for you and
to act as a vehicle for improving communications be-
tween vou and the Company. Of course, you do. not
have to take your complaints’ or questions ‘to a com:
mittee member if you would rather not—you still have
the right of going to your supervisor or to me, or ‘to
Mr. Elden or Mrs. Schwarsenbpeh. But some of you
don’t like to do this, so the committee should be helpful
in this respect. :

The following employees have been interviewed and
i they also feel that such a committee might be beneficial -
and have agreed to:serve on the first committee. They

are * * * *

This group will Serve, for about three (3) or four (4)
months and then another group ic ill be axked to serve.
As soon as nee organized, a tentative schedule of
nie dead will he * posted on the bulletin board. :
In his own testimony Plant Manager Taylor admits the
following: The Committee met in his affic e, the Company
chose the membership of the*Committee, employee members

' were paid for time spent in attending meetings of the Com-
- mittee, Taylor attended c% Ach mecting, no election was held
to ascertain if. the erployees wanted the Committee, the
{‘ommittee submitted grievances With respect to condolence

or bereavement pay and the same was adjusted, thes Com-

* General Counsel's Exhibit ‘No. i. pe

¢

.

‘ y ae 93a

Trial Examiner's Decision
mittee also submitted grievances on vacation schedules, the |
Committee brought up the subjects of an employee bulletin |
board—new wages scales—and additional restrooms, the”
Company initially determined ‘the length of ‘time an-em-
ployee member would: serve: on the ‘Committee ‘and also .
.determined the basis for membership (two employees from
each shift), the Committee has no hylaws—constitution or
dues, the Committee has no officers of its own; and as a
whole the Committee has conducted or held’ no meetings
other than those called by the Company. Iemployees Rich-
ard Wiley and Gerald Luther also gave some testimony as
to the Committee; and they are in general agreement with:
Taylor’s versions and admissions. |
The Respondent mainly argues that the Committee was
“organized after the election at the suggestion of several
employees, and was subsequently dishanded: and. is no
longer recognized so that the issues with respect to it are
moot. The Company ‘also suggest: in their argument that
whatever the finding -in respect to the Committee—the is-
sues“ are’ totally unrelated to any other aspect of: this
proceeding. T am not in accord with the Respondent’s posi-.
tions. In the averriding considerations of this case and in
its totality, the formation and workings of the: Committee
has a significant impact: The Act defines a labor organi-—
zation as: * es wes, cdl
. any organization of any kind, or any agency or
employee -representation committee or pian, in which
employees participate and which exists for the pur-
pose, -in whole er in part, of dealing With employees
concerning grievances; labor disputes, wages, rates of :
@ > pay. hours of employment, or conditions of work.

- 94a *. a

Trial Examiner's Decision

. . Ce
The Committee presented numerous an? various griev-—
ances to the Company, as admitted. by Taylor—pay, vaca-
tions, bulletin boards, restrooms. It is obvious that the
Committee has dealt with matters which appropriately —
come within the scope of collective bargaining, i.c., wages,

ae hours and other terms or conditions of employment, and

therefore, thesyRespondent’s denial that the Committee is a
labor organization.is without merit. In fact, ‘Taylor agreed
that a function of the Commitice is “to present employee
grievances tu the Company. o

Taylor testified that two. unnamed aah. had sug.
gested the idea for the Committee. However, the April 18

‘ notice-to employees by Taylor, as atoacemationnd, states

that during the small group meetings with employees the
Company heard complaints that probably could have been
avoided, and that.during this period the decision Was made
to organize the Committee in event the Union lost the elee- |
tion. Tre ix no mention in the April 18 notice-of any idea
for the Committee coming from employees, and all reason- -
able interpretations of the wording in the written notice ©

* point to the conelusion that management ac ‘tually initiated

and promoted the Uomnmittee, The notice provided ‘that
“we” would try to organize the'Committee. In view of the
above and the fact that the two employees who supposedly
suggested the Committee remain anonymous—I must con-
elude that the Committee was formed exclusively by the
‘Company. Since the Respondent seléeted all employe

members of the. Committee, determinyd their initial sclee- *

tion, set the meeting” dates, paid all fiyAncial support: inelud-
ing time spent at the mecsings, anf] the yfact that Taylor
attended all the Committee meetings—duly established he-

St

95a

Trial Examiner's Decision
yond all doubt that by these acts the Respondent unlawfully
dominated, assisted and interfered with the administration
of the Employee Committee and thereby violated Section
S(a)(2) and (1) of the Act, and I so find. ;

On July 27 the Company sent a notice to employees tell-
ing them that the Committee was disbanded and will no
longer exist or function.” However, even if the Committee
is now in an inactive status, this does not necessarily mean
or assure that such a status is on a permanent basis. [ fur-
ther agree with the General Counsel that the danger of
continued assistance to and domination of the Committee
is most obvious unless the Respondent is restrained by an
} ropriate remedial order, and it is well established that -
ings of violations and remedies therefore serve a pre-
ive as well as remedial purpose, The July 27 notice is

insufficlent to adequately remedy ‘the effects of the Re-

* spondent’s unlawful assistance and domination.

Followmg the demand for recognition by the Union on
\s February 9, the Company notified _the Union on February:
’ 14 that it.was refusing recognition on the grounds that it
doubted the Union's majority. In the hearing before me
the parties stipulated to the inclusion of 195 employees in
the production and maintenance unit. At the outset of the
hearing, a.list of 191 names of unit employees was agreed
upon, but later. the following four individuals whose names
do not appear on the list marked General Counsel Exhibit |
| No, 2, were agreed to he excluded: Wilhehuina “Hoelzel:. -
Fr .. « Terry Wray, Pearl Tremmel, ee Blair; the fol-
} lowing four employees were agreed The included: Paul

- . wee,
" «+ * Respondent's xhibit No, 2.

‘ \
aw

96a
Trial Examiner's Decision

Ricard, Jr., Walter Krise, John Golding, and David Fino-
chio. This accounts for the total of 195 unit employees
agreed upon at the trial. However, the Respondent offered
testimony as to four additional employees and in this re-
spect argues as follows: “It is the Respondent’s contention
that employees laia and Evans (hourly rated weavers who
from:-time to time instruct emplovees), Becker. (who at the
time of the demand for recognition had heen granted a
temporary leave of absence because of a babysitter prob-
lem) and Marjorie Krise (who was not at work for a period ~
of time because of an allergic illness) all are properly con-
sidered within the unit and that the unit, therefore, consists
of 199 employees, On the day the Union demanded recog- -
nition by the Company, it possessed only 99 cards—not a
majority.” The General Counsel takes no serious excep-
’ tions to the inclusion of Iaia and Evans, and has agreed to
\ his brief that these two weaving instructors have sufficient
. community of interest with other production employees so
as to be included in the unit.—This brings the-toetal- number
of employees in the unit to 197. The name of Marjorie
Krise does not appear on the eligibility-list as prepared by
the Company for the March 16 election. '
The General Counsel introduced 122 ee authorization
‘ cards into the record. .The Respondent does’not contest the
authenticity of the signatures on any of the 122 cards in
evidence no¥ was any issue raised with respect to their
~ dates. On or by February 9, when the initial demand for
recognition wax made, the Union had signed authorization
vards from 99) unit employees. Between February 9 and
February 14—the date when the Company began its refusal
to grant yecognition—four additional employees signed au-

a

_

?

4

¥

97a
Trial Examiner's Decision

thorization cards.” | agree that on’the basis of the con-
tinuing nature of the Union’s demand, these cards can be
included in computing the Union’s majority.” Thus, by the
time the Company replied to the Union's: request for recog-
nition, the Union had obtained a majority of 103 cards out
of a total of 199 unit employees, even assuming that Becker
and Krise are to be included in-the unit. This record fur-
ther reveals that inthe following few weeks the Union
obtained 19 additional designations, bring its total of 122
cards, an overwhelming majority out of a maximum unit
of 199 employees. In view of the above and in summary
thereof, | am convinced, and find, that the February 9 de-
mand by the Union was in fact a continuing demand, and-
was still in effect. when the Union attained its majority
status. ‘,
"One of the primary contentions of; the Respondent is that
some 30 or more of the authorization cards were signed at

_--— —

General Counsel Exhibit Nos.-20-101-96-100-102.

The pertinent portion of paragraph 11 of the amended com-
plaint states as follows: “Since on or about February 9, 1967, and
at all times thereafter, the Union has requested, and is requesting,
the Respondent.to bargain collectively... 2° Also on February 13.
the Union filed.a petition for representation. (6-RC-4363)' and the
filing of a petition is viewed hy the Board as a request for recogni-
tion. In Scobell Chemical Company v. N.L.R.B., 267 F’. 2d 922,_-
§29 (CLA. 2). where the Court, assuming that the Union lacked a
mafority at the time of its bargaining request, found ‘that it had
such a majority the next day. and held that in the light of the strike
and picketing which there ensued, the Enion’s request for bargain-

‘ing must be deemed a continuing request. The instant case is some-

what like Scobell except that here, instead of striking and picketing,
the Union pursued its bargaining request through a representation
petition. See Burton-Dirir Corporation, 210 F. 2d 199, ?00, 201
(CLA. 10), where the Union lacked a majority at the time it re-
quested recognition but where the’ request was understood to be
of a continuing character.

(
\

98a
Trial Examiner's Decision

a meeting of the Union on ‘January 29, oe it is argued that
at this meetirig the 'Union’s international representative,
C axl Frazier, made it clear in his remarks that the purpose
of the cards was “just’> to get a Board election, In these
respects the Respondent further contends as follows:

Although in answer to a rebuttal question by General
Counsel, Frazier denied that he used the word “just” -
in commenting on the necessity of cards for an election, |
it is, nevertheless, abundantly clear that he intended to
and did, in fact, “create the impression in the minds
of the employees that such was their only purpose.
Whether he used the words “only” or “just” or some
other words at that meeting may never be accurately
~ determined, but the effect of his words on the em-
ployees in. attendance and their understanding leave
no room for doubt.
The language on. the cards in the instant case is clear and
reads as follows: ®

I hereby accept meghership in the T extile Workers.
Union of America of my own free. will andl do’ hereby
designate said (xtile Workers Union of America as”
may representative for the purposes of collective bar-
gaining jn respect to rates of pay, wages, hours of
employment | or other conditions of employment.

The cards make no lee ‘nee of any kind to a union elee-
tion, but the Respondent, ne svertheless, sought at the hear-
ing to prove that numerous unit employees, Were ‘so. in-

formed ‘or so believed.

99a ‘ é
a

Trial Examiner's Decision

>

Harry Walters testified that when he signed his card it.

was given. to him by either, Jim Edelblute or Harry Me-
Graw, and that at the time he inquired whether he would

bea charter meinber and whether or not he would not have -
‘to pay an initiation fee. Walters stated he was then told .

“that they had the biggest majority of the cards signed and
that they were ready to have a vote.” Walters also passed
out cards to his wife and two other employees, and in so
doing he stated, “if you area charter member, ,you donot
have to pay an initiation ‘fee, so I suggest that you sign the
card even though whatever vou are going to vote. You vote
_ the way you please.” |

Mary Lou White testified that she was given the card
by an employee named Judy. Judy supposedly told White
that the card “just meant that an election would come and
it didn’t mean anything else.”"® This record shows that
every: euployee wlio signe an authorization card was then

a ? Shortly after signing: her card, White received a union charter
menibe ‘rship card with her naine and the Respondent’s name_on the
Appropriate lines, This card reads as follows:

Textile Workers Union of America
TWUA, AFL-CIO

Charter Membership Card
This is to « ertify that the bearer of this card

is a “td larter mapnley of ‘the oval | uniow * that. will py chartered by
the Textile Workers Union of America, TWUA. AF L-CIO
for the employees of

\

Sou Stetin
Regional Director
Quin- State Region

MORE NE TO ERE AACR DE ROTI

100a
Trial Examiner's Decision
Ue NY,

mailed the above charter membership card, and algo a letter
from the Union and certain other materials explaining the
Union and its objectives. General Counsel Exhibit No. 21-a
through 21-d. White further, admitted that she never at-
tempted to revoke her card.

Patrick O’Hara testified that he signed a card at the re-
quest of employee Raymond Guella, who allegedly told him
that the card would save him “the first year’s fee” ($5.00)

and “that they would use the card to. get the majority of |.’

the cards signed, you know, but it was to get a vote going
in/an election.” O’Hara admitted that-he read the card be-
fore he signed it, and that he ever asked for his card back.
Jonas Corbin, Jr., testified that he signed his union card
at the meeting where they were first distributed on Jan-
uary 29. Corbin stated that at this meeting he asker Union
Representative Frazier if by signing the ecards the Union
would coliect dues from employees even if. the Union lost
the election, and that Frazier. replied in that event the
signed cards would be returned and no dues would be col-
~ lected. According to Corbin, Repre ‘sentative Frazier added
that. “all he wanted was 50 percent of the people to sign
blue cardy so we could get an election. * Corbin also testi-.
fied that subsequently he distributed “about ten” cards to —
other individuals, and told them they: ‘should read it and
sign, and that “we had to sign 30 percent of the people in .
- the plant before we could even get-an election,” and “they
would definitely be charter members in the Union.” Corbin-
admitted that Frazier read . the gant at this January 29
me eting. f
Maury Delosier testifie wd that he attended the January 29.
union meeting, where cards were distributed and that Fra-

10la .-—
Trial Examiner's” Decision

zier “when he first showed the card, he said this is*for the
start to get an election, to get the ball rolling.”

Paul Kcker testified that he got his card from’ either
Clyde Brown or Ronnie: Braekbill, and admitted that who- .
ever gave him the card said nothing, except to ask him to
“ sign. Keker, in response to the Respondent's question “did

anybody call you any names?” testified: :

_ Oh, there is talk like, “Don’t sign the card,” and stuff
‘like that. They call you brown nose and stuff like that;
You are all for the office and stuff like that.

Nancy Wise testified she signed a card after Union Agent ,
James Myers came to her home. ‘She also stated that Myers
told ‘her that there was going to be an election, and that
after keeping the card for some time, while an employee by
the name of Joyce kept asking her why ‘she die aot sign it,
she signed it “just to get her [Jovee| off my shoulders.”
Wise never attempted to revoke her authorization ecard.

Annette Steinbugl stated that she Was given a card. by
employee Paul Gardner, and was informed that the Union
had to have “so many cards” before they could have a vote
and that if the Union did ‘not get in the cards would be
disregarded, but if the Union won, she would be a member.

Louis Delosier testified that employee Randy Thompson
gave hima card to sign and that Thompson told him “it
was for an election.” On cross-examination, Delosier stated
that he signed Mis card at home, and then admitted that
a union meeting he attended—F razier explained to em:
ployees the Uhiion needed 30 percent of the employees to
Sign cards in order to havea vote and he also admitted that
Mrazier read the card. :

on REE EATON
a NEWS ay

102a
Trial Examiner's Decision

William Sloane attended the union. rane where cards .
were distributed, and testified he was informed, that 30 per-
cent was needed for an election, and that by signing the
card an employee became a charter member of the ‘Union -
and was exempt fromthe initiation fee requirement. On
-cross- examination, Sloane stated that Frazier read the card
“aloud to the assembled employees, told them that by signing
the card they would become charter members of the Union,
> and if the Union lost the election the cards would be re-
‘turned to the ‘signers. |

Jerome Green testified that an employee named Melvin .
. gave him a union eard, but Melvin said nothing to Green
-about the card. Green stated the union agent, Myers, vis-
ited him.at his home and tokl him that: “they. needed so
-many for an election.” Green admitted that Myers may
~ have visited him after he had signed the eard.

George Kaufman was also given a card by Melvin (last
name unknown). Kaufman statect he was told by Melvin
that he would hecome a member if, he ‘signed, that all the
Union needed was about 30 percent to have an election, and
that if the Union was successfu] Kaufman would save the
first initiation fee.

‘Ronald Taddy received his « ca ard from James Myers, and
testified he was informed by Myo rs that the Union had to
have 50 percént to have an eélection. Taddy stated that
“Myers “could have told” him that by signing the card he °
would become a charter member.

William Nolan received his card from Harry McGraw.
Xolan stated that McGraw informed him that “they had to
have a certain percentage to join the Union, to get a union
’ + started,” and that “there would be an election.”

_ Clinton ‘Lane testified that: Clyde’ Brown gave him the
which he signed, that Brown said nothing to him ab

‘reply, Frazier allegedly said, “This is jus
on the road, so we can get a vote in you pl nt.” On ecross- .

~ 103a - : ‘
Trial Examiner’ s Decision :

_ Raymond Wakefield testified that Clyde: Brown vn gaye hi Sie

: the card which he signed, and told him that if he sigried and

the Union came in, he would not have to pay shy es ,
_ ‘fee, that he would “automatically” ‘belong to Hae Union.
‘Benedict Hebler testified that he got his card from a.

man whose name he does not know. Acc ‘ording to: Hebler,

~ this unidentified person told him, “if the Union got in, if
.they get in, I have 30 days to get one or either, Td be laid

off .. hd

: Nick Colella testified that Jonas (orbin gave him the/

ecard which he signed and that Corbin said “not a thing”

card, as “‘I’was with unions before. I knowed abo
Walter Delosier, Jr., testified that he signed.a gard at the
meeting where the unde were distributed, and At this meet-

ing employee Jonas Corbin asked Frazier about the word.

hembership. In
\to get the show

ing on the cards with reference to union

examination, Delosier denied that Fraziéy read the eontents
of the card aloud to the assemblage! before distributing

them. Yet, Jonas Corbin testified as aforestated, that Fra-.

zier “read everything that was written on the tard” at this

meeting. Delosier admitted that he read his card before— what ,
he thought that ecard ineant, cannot negative the overt
action of having signed a card designating a union
as bargaining agent. [citing cases | Similarly, it has
been consistently held that the question is not whether
an employee actually felt intimidated but reasonably
be said to tené?to interfere with the free exercise of
employee rights under the Act.

And see dero Corp., 149 NLRB 1289, 1291 where, in
holding that the Trial Examiner did not improperly limit
cross-examination of employee witnesses who had signed
cards, the Board said: - a

The questions propounded ... . were intended to go
into the question of ‘why... [the witness] signed the
ecard. We agree with the TX that Respondent's coun-

sel was inquiring into the subjective state of mind
of the employee at the time the card was signed, a
matter which is not material to a determination of the

validity of the cards.

! ‘

The views expressed by the court and the Board in the
above cases has been the controlling law.’* The evidence

15 See, for example, Gorbca, et al., 300 F. 2d 886, 887 (C.A. 1.
1962)2 Baucr We Iding & Metal Fabricators, Ine., 358 F. 2d 766,
775 (CLA. 8 1967); Dayco Corp., —— F. 2d ——, 65 LRRM 3092
(CLA. 71967) : Cumberland Shoe Corp., 391 F. 2d 917, 920 (CLA. ~
6 1965); Dan River Mills, Inc., 121 NLRB 645, 648; Gary Steel
Products Corp., 144 NLRB 1160; Economy Food Center, Inc., 142
NLRB 901, 911. | ie

~113a

Trial Examiner's Decision

in 1 this record clearly ghows that the union representatives
‘and the individual employees soliciting card signatures,
made no mater lal misr cpresentations in carrying out their
organizational efforts. The Union was careful to ade-
quately inform the employees in the purposes of their eard,
and such is amply demonstrated ‘by Frazier’s complete
reading of the card at the meeting on J anuary 29, Further-
more, as has been pointed out, shortly after an employee
signed a membership/authorization card, he or she was
mailed a union charter membership card, together with
a letter beginning: “Dear Member: We’re mighty proud
to have you join as a new member of the Textile Workers
Union of America, AFL-CIO.” This is directly incon-
sistent with telling anyone that the card was only for an
election. The union organizers frankly admitted and con-
ceded that there was talk of the possibility of an elttion,
however, it is likewise abundantly clear that many other
statements and representations were also made to the
employees. A
It is further noted that many of the employees who testi-
fied about their card signing are still working at the mill
and obviously all such witnesses had a definite interest.
in supporting the Respondent’s position at the hearing be- é
fore me, and’ upon my observation it was evidént from
their demeanor that they were continuing with a pattern
_ of disavowing union activity ever since the Union lost the
-March 16 election. - 7
In this instant case the employees signed their names
to authorization cards that were clear and explicit. We
© are not faced with the situation where the ecards are am-
biguous on their face. Coupled.with such facts it is not

14a
Trial Examiner's Decision

trickery or misrepresentation to tell empleyees to ‘sign
cards so that there could be a petition for an electiG@; nor
was it violative to tell them that there -had to be 51 per-
‘cent of the employees to vote for thg Union. :There is
no convincing evidence in this record that the employees’
signatures were obtained upon the promise that the cards
would be used only for ¢he purpose of filing a petition for
a representation election. The fact that the employees
may have believ ed-that an election would: be forthcoming
“does not offset a ‘concurrent intention to. authorize the
Union as their exclusive bargaining representative. As
the .Court* of Appeals for the Ninth Cireuit stated > in
N.L.R.B. v. Geigy Company, Inc., 211 F. 2d 5538, 556,

_ rejecting a contention similar to that made by Ena

here, .thé fact that employees may. have contemplated that

the authorization cards would be used in aid of a petition

for a, Board election does not preélude a finding that the:

union was given authority. by the signed cards to repre-
sent the employees immediately for purposes of collective
bargaining. Contrary to Respondent's assertion that the
employees were unaware of the purpose of signing cards,
and notwithstanding its claim that the Union’s’ majority
was ‘the product of misrepresentations to the employees

- in which some may not have actually read the authorization.

ecards, the record establishes that the employees were fully
apprised of the import of the /eards, and that the Union
provided them with more. thah ample opportunity . to be
advised, as to their significance. Even after subsequent
reflections as—te—what -tthey had done none of the: Respon-_
dent’s witnesses attempted to rev oke their ecards. :

Based on credibility and other circumstances and factors -
set forth above, I find that the Union had valid authorization

°

P)

115a
| Trial Examiner’s Decision

cards = a.majority of. the © employees in an appropriate
unit.

Union’s majority because in N ovember and December 1966,
he heard there were organizing meetings being held and
had heard there were never more than 17 employees present
.at such meetings. Taylor stated he also heard about the
union meeting in late’ January with only 35 to 40 employees
in attendante—and most of them had already signed cards
—so he felt that this was the extent of the Union’s support.
‘Another reason given by. Taylor as to why he doubted the
3 Union’s majority—was the-presence of older _erAployees in
- the’mill who had been there during other previous elections,
and in such. past periods union efforts had alway been de-
'feated.. Taylor further testified ha had heard that cards
_ were being signed in the instant campaign so that employees

w ould be left alone. On cross- estbien Taylor admitted
that no union.elections had been held in the plant here in-
volved since he arrived on the scene in December 196 4. Fur-
ther testimony by Taylor on cross-examination shows the
following:

* hibit No. 8 [the Union’s initial demand letter] on
\ February 10, Friday?

A. I believe SO, yes.

a

Q. What was the first thing you did when you see that

letter? Didn’t you 1 contact’ your attorney in New
York? ae
__A. Probably, yes.

‘Plant Managor Pigkor testified. he hai doubts as. to the

Q. Isn’t it true that you received. u use neq Ex- -

? : . :
-° ‘ ?
: I hescites ’ : ;
* ‘

16a aut

os Trial Examiner's" Decision eee a

— «QT sible you General Counsel's ishibit No. 9, which
pares is a letter signed by you written to the Union dated
|. February 14, 1967, and ask you that isn’t it true that

your attorneys either gave-yeu the wording or the
contents of that letter before you wrote it? |

A. Yes... ** ae

/ 2 a ; ave hee .

AT

Normally, an employer may insist on a. Board-conducted
election, Such an election conducted in a “laboratory -at-

mosyhere” is the most accurate ‘and secret method for de-~
termining. the employees’ true desires, although it is not

the only method. Where an employer .has destroyed. the
“laboratory atmosphere” by ‘unfair labor practices, edfcu-

lated to affect the Union’s majority and the outcome of the
election, as here, the Board.has held that this eonduet, by

its nature and timing, colors an. employee’s expression

of good-faith doubt, and has recognized an alternative

— method of determining a. Union’s majority status—by..a

ie: count of signed authorizations. In order-to determine the
validity of a claim of good faith, the Board looks to the

employer’s entire. course of ‘conduct. An_ employer who.

fails with ‘good: reason to respond to bargaining requests
of a union which represents a majority of its employees,
and embarks, instead, on a course of improper conduct

? which is either calculated to or. tends to destroy that ma-
jority; does not demonstrate the good faith required to
justify its failure to hargain. The Respondent here, avhen
faced with thé Union’s request for recognition embarked on
an extensive course of illegal conduct which was designed
to destroy the’ Union’s majority, ‘and the numerous and
‘ repetitious nature of the 8(a)(1) violations have been fully

‘i ,

. q s
. ; : [x

d

eth BS ee

117a oy ge

| Driat Examiner’ s Decision

described iia This conduct. begay/ at the very outse

_ of the crucial préelection period,-and ¢ ntinued throughout
this time, and in this respect ‘sufficiewt to bring these vio--

lations within the Board’s Jor y Sik Mills doctrine. As fur-
ther pointed out the Company did not confine its unlawful
conduct to the preelection period, but continued j ip its illegal
actiyities even after the election. W fie the. Union’s objec-
tions to the Respondent’s preelection conduct were pending;
the Respondent committed violations of S(a)(2), as afore-
stated. I agree that this continuing cqurse of illegal anti-
union conduct makes a free election th SS in the fore-
seeable future, and requiring the Union to go to another
election would enable the Respondent to profit from. its own

wrongdoing. Moreover, the 8(a) (2) violation must be at-

tributed and tiewed in light of the employ er’s entire course
of conduct, and is therefore another element in the chain

of events w hich refutes the Respondent’s contention of a

good-faith doubt. Likewise, there is no real substance. in

Tay lor’ s claims that his doubts: were based: “On past elections.
and pressure put on employees. Taylor’s memoranda to,

himself on February 2 and 7,’ purporting to record ¢om-
plaints with respéct to’ pressure on card signers is largely

self-serving. and it is further noted there’ is lacking any
- corroboration from the employees. who supposedly were

so pressured. Each employee witnéss produced by the Com-

pany also admitted wditihal she was first interviewed’

about signing their individual card just a few days before
the trial in this case. If the C ipany had any real basis
for ‘their February belief that nployees were being pres-

va

ee,

Ss,

118a
Trial Desnitines’s Decision

sured, into signing, it is not“ adequately Yeflected in this
record. Nor can I see any substance in the testimony that
the Respondent’s doubt wag based on past election failures.
Certainly, as the General } unsel points out, such experi-
ences are in no way indidative of présent-employee senti-

ents toward a union. It is readily apparent from this *

cord, that the Respondent’s asserted reason for withhold-
- ing recognition have no basis in fact.

As proven by. the Respondent’s ‘sustained and open
gauged campaign of the unfair labor practices engaged in,
the Company’s rejection of the Union’s claim to representa- *
tive status was made not because of the good-faith doubt
as to the Union’s majority, but in order to gain time in
which to dissipate that majority. ‘Having found ‘that the
Union represented a majority of Respondent’s employees
im att appropriate unit and made a proper request for ree-
ognition and bargaining, which Respondent declined, and
having found that Respondent’s questioning of the Union’s
majority is-for the reasons stated herein, not advanced in -
good faith, I find that Respondent has refused to bargain
collectively in good faith in violation of Section 8(a)(5) of
the Act.

qu

~_

IV. The Effect of the Unfair Labor

Practices Upon Commerce °
: ‘
The activities.of the Respondent set forth in section Iil,

above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor.
disputes obstructing commerce and the free flow they >f.

® -

119a a

Trial Examiner’s , re i
o

Conclusions of Law

1. The Respondent is an employer engaged in commerce |
within the meaning of Section 2(6) and (7) of the Act.

2. The Union and the Committee are labor organiza-
tions within the meaning of Section 2(5) of the Act.

3. All production and maintenance employees at the
’ Respondent’s Altoona, Pennsylvania, plant, excluding Office
clerical employees and guards, professional employees and
supervisors as defined by the Act, constitute a unit appro-
priate for the purpose of collective bargaining.

4. The Union has been at all times material herein, and
is now, the exclusive representative of all employees she
aforesaid appropriate wunit for the ‘purpose of collective
Bargaining within the meaning of Section 9(a) of the Act.

5. Commencing on February 14, 1967, and continuously
thereafter Respondent has refused to recognize and to bar-
gain collectively with the Union, thereby violating See-
tion 8(a)(5) of the Act.

6. By dominating and interfering with the formation
and av.uwinistration of the Committee, and contributing
support thereto, the Respondent has engaged in unfair
laher practices within the meaning of Section 8(a)(2) of
the «ct. ; .

7. Tv sdent and its agent has interfered with, re-
strained and coerced its employees in the exercise of rights

120a

Trial Examiner's Decision

guaranteed by Section 7 of the Act, thereby violating Sec-
tion 8(a)(1) of the Act. | ;

‘

8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.

Ve The Remedy

oc

‘Having found that the Respondent haS engaged in cer-
tain unfair labor practices, I shall recommend that it cease |
and desist therefrom and that it take certain affirmative |
action designed to effectuate the policies of the Act.

_ Since the Respondent has dominated and interfered with
the formation and administration of the Committee and
has contributed support_thereto, | shall recommend that
the Respondent’ cease and desist from such conduct and
that it withdraw recognition from and permanently dis-
establish the Committee as the representative of any of
the, Respondent’s empléxees for the purpose of dealing
with the Respondent concetning grievances, labor disputes,
s, rates of pay, hours of employment, or conditions
OF work. : |
I shall further recommend that the Company bargain
collectively with the Union, upon request, and that it post
appropriate notice to employees as provided in the Ree-
. ommended Order set forth below, which is found necessary _
to remedy the unfair labor practices and to effectuate the~
policies of the Act. ae
I shall also recommend, in order to make effective the
interdependent guarantees of Section 7 of the Act, that the .

”

Fd

- 12la
Trial Examiner's Decision

Respondent cease and desist from in any manner infring-
ing upon the rights guaranteed in said section. N.L.RB.
v. Express Publishing Company, 312 U.S. 426; N.L.R.B.
v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).

RecomMenpep Orper
4

Upon the basis of the foregoing findings and conclusions,
and upon the entire record in this case, it is recommended’
that -The Schwarzenbacli-Huber Company, its officers,
agents, successors, and assigns, shall:

1. Cease and desist froth:

' (a) Threatening to close or to move its plant as a con-
Sequence of union activity or affiliation.

(b) Threatening employees with loss of work because
of union activity.

(c) Interrogating employees as to their union activi-
ties, sentiments, and attitudes either individually or in-
meetings.

--A

(d)- Threatening to bargain with the Union én the basis
that all existing employee benefits be eliminated. oe

(e) Unlawfully enforcing a nonexisting no-solicitation
rule and disciplining employees for the purpose of defeat-
ing union organization. ee

(f) Dominating or interfering with the administration
of the Committee or with the formation or administration
of any other lafior organization of its employees, and con-

122a
Trial Examincr’s Decision. _

tributing support to the Committee or to any other labor
organization of its employees.

(g) Recognizing or in any manner dealing with the Com-
mittee, or any reorganization or successor thereof, as a
representative of any of its employees for the purpose of
dealing with the Respondent concerning eievance, ion
disputes, wages, rates of pay, hours of employment, or
. other conditions of work.

(h) Refusing to bargain collectively with the Union as
the exclusive representative of all production employees
in the unit set forth above.

(i) In any other manner interfering with, restraining,
or coercing ‘its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.

°

2. Take the following affirmative action which I find
will effectuate the policies of the Act:

(a) Withdraw all recognition from the Committee as a
representative of any of its employees for the purpose of
dealing with the Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
other conditions of work, and completely disestablish the
Committee as such representative.

(b) Upon request, bargain collectiv ely with the above-
named union as exclusive representative of all employees
in the above-described bargaining unit, and, if an under-
standing is reached, embody such understanding in a signed
agreement. )

123a

Trial Examiner’s Decision

(c) Post at its plant copies of the notice attached hereto
and marked “Appendix.” " Copies of such notice, on.forms
to be provided by the Regional Director for the Sixth
Region shah, after being signed by a managing representa-
tive of the Respondent, be posted immediately upon re-
ceipt thereof, and be maintained by it for a period of 60
consecutive days thereafter in conspicuous places includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent

to insure that such notices are not altered, defaced, or

covered by any other material.

(d) Notify the said Regional Director in writing within
20 days of the date of the receipt of this Decision, what
steps it has taken to comply herewith." 3

(e) Iv 1s FURTHER RECOMMENDED that in view of my find-
ings herein the representation ‘petition in Case No, 6-RC-
4363, be dismissed. ie ae "

Dated at Washington,-D. C.

: ? /s/ Paw SQwvers
Phil Saunders
ay | Trial Examiner.

*

‘In the event |that.this Recommended Order be adopted by the
Board, the word¢ “a Decision and Order” shall be substituted for

the words, “the /RecomnMnded Order of a Trial Examiner” in the--

notice. If the Board’s Order is enforvéed by a decree of the United
States Court of Appeals the notice will be further amended by the
substitution of the. words, “a Decree of the United States Court of

Appeals Enforcing an Order” for the words “a Decision and Order.”

** In the event this Recommended Order by adopted by the Board,
this provision shall be modified to read: “Notify the Regional
Director for the Sixth Region in writing within 10edays from the
date of this Order what steps the Respondent. has taken to comply
“herewith.” ) :

~—
*

LSE PEI EON ADIT

> ©}

(,
124a
Trial Examiner’s Decision
APPENDIX
Form NLRB-4635A | | TXD-753-67
(11-65) | a ?
0 NOTICE TO ALL EMPLOYEES —

PURSUANT TO
THE Recom MENDED ORDER OF aA TriaL EXAMINER OF THE
NATIONAL LABOR RELATIONS BOARD
and in order to effectuate the policies of the

NATIONAL LABOR RELATIONS ACT

Ba AMENDED)
a
we hereby notify our employees that: , |
WE WILL NOT threaten to close or move our plant
as a consequence of union activity or affiliation.
WE WILL NOT threaten employees with Joss of jobs
or work because of their —_—.
, WE WILL NOT ask employees @™ to why they want
the Union, what the Union can do for them nor will we
inquire into their union activities, attitudes and senti-
ments either individually or in meetings.
WE WILL NOT threaten to bargain on the basis that
all existing employee benefits be eliminated. — i

WE. WILL NOT aes enforce a nonexisting
no-solicitation rule for e purpossef defeating the
Union. | |

1254:
Trial Examiner’s Decision

WE WILL NOT dominate or interfer with the admin-
istration of the Committee, or with the formation or.
administration of any other labor organization of our —
employees, nor will we contribute support tothe Com-
mittee or to any other labor organization of ‘our em-
ployees. i \

WE WILL NOT recognize or in any manner deal with
the Committee, or any reorganization or successor
thereof, as a representative of airy of our employees for
the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of work.

WE WILL withdraw all recognition from the Com-

“Inittee as a representative of any .of our employees’for i

the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employ-
ment, and other conditions of work, and completely
- disestablish the Committee as such representative.-

WE WILL bargain collectively, upon request, with
TEXTILE WORKERS UNION OF AMERICA,
AFL-CIO, as the collective-bargaining representative
of all our employees in the unit described as follows:

All preduction and maintenance employees at the
Respondent’s Altoona, Pennsylvania, plant, ex:
clud@g office clerical employees and guards, pro-
fessional employees and supervisors.

WE WILL NOT in any manner interfere with, re-
Strain, or coeree our employees in the exercise of the .
right to self-organization, to form, join, or assist labor

126a

d

Trial Examiner’s Decision

organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guar-
* anteed by Section 7 of the National Labor Relations .
~ Act, and to refrain from any and all such activities.
All of our employees are free to become or remain, or
refrain from becoming or remaining,’ members of —

Workers ree of. ve scus AFL- CIO.

THE §CHWARZENBACE- HUBER COMPANY
: ‘ is

(

n

—

This Notice. must remain posted for 60 consecutive days
from the date of posting, and must not be altered, Getaoed,
or covered by any other material. ;

If employees have any question concerning this Notice
or compliance with its: provisions, they may. communicate

_ directly with the - Board’s’ Regional Office, 1536 Federal. |

Building, 1000 Liberty Avenue, Pittsburgh, bab i enact

15222 es No. 644-2969).

‘ 1278, | : ° ’ : E-
National Labor Relations Act ze a ©

Sic. 7. Employees shall have the right to self-organ- .
‘ization, to form, join, or assist labor. organizations, ‘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, and shall also have the right to refrain from _
‘any or all,of such activities except to the extent that such.

= righ€ may be ¥ffected by.an agreement requiring. member-

ship in a labor organization as a condition of employment -
~ as authorized in section 8(a) (3).°

eo .

"Bee. 8. (a) It shall he- ~an, unfair labor practice for an
employer— ‘. rs A
(1) to interfere with, restrain, or coerce employees

in the exercise of the Tights. guaranteed in section 7;
* & * :

(2) to dominate or interfere with the formation or
ddministration of any labor organization or contribute
financial or other support to it: Provided, That subject
to the rules and regulations made and published by the
Board pursuant to Section.6, an employer shall not
, ~~~. be prohibited from permitting employees to confer with
him during belgie hours without loss of time or pay;

(5) to réfuse to-bargain collectively with. the repre-
sentatives of his employees,subject, to the provisions - .
of section 9(a).*** ~~ cs

we!

‘(e) The Board shall have pow er 6. petition . any 7
“court of appeals of the United States, .or if all ‘the ~ a
courts of appeals to which application may be, made, \ >
are in vacation,.any_ district court ‘of «the United - ke
States, .within any circuit or distriet, respectively, ’
-~ wherein the unfair .Jabor practice | im question oc-
curred or wherein such person resides or transacts _
business, for the enforcement of such_ order and for —

128a " « ea
- ‘National Labor Relations Act

' appropr ‘ite peer es ary relief or restraining order:
' and shall. file in the court the record in the proceed-
ings, as provided in section 2112 of title 28, United
States Code. Upon’ the filing of such petition, the
court shall cause notice thereof to be sérved upon

‘such person, and thereupon shall have jurisdiction °

of the proceeding and of the question determined
therein, and: shall have power to grant such tem-

porary relief’ or restraining order as it deems just
and proper, and to make and enter a decree enfore-_

-

ing, modifying, . and enforcing as so modified, or

setting aside in whole or in ‘part the, erder of the

Board. No objection that has not been urged before

the Board; its member, agent, or agéncy,’ shall be
considered by the court, unless the failure or neglect
to urge such objection shall be: exeused because of

extraordinary <ireumstances. The findings of the

Board with respect to questions of fact if supported
by substantial evidence on the record considered as

a whole shall be conclusive. If either party shall -

apply to the court for leave to adduce additional evi-
dence and shall show to the satisfaction of the court

that. such additional evidence is material and that |

there were reasonabie grounds for the failure to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1121%3A2. Public record. Not legal advice.