Appendix — McEwen Manufacturing Co. v. National Labor Relations Board

Supreme Court brief1970

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA ‘CIRCUIT

AMALGAMATED CLOTHING Workers OF ,

-America, AFL-CIO,

Petitioner,

Nattowan Lasor Rexations Boarp, No. 22,088

Respondent. :

Wasuincton Inpustrizs, Inc., and

McEwen Manvuracturine tiateeee.

Intérvenors. } .

McEwen Manvuracturina Company, .

Petitioner,

v. Nos. 22,568

22,569

NATIONAL Lapor ReE.ations Boarp,

Respondent.

PETITION TO REVIEW AND MODIFY, PETITIONS TO

REVIEW AND SET ASIDE AND CROSS-APPLICA-

TION FOR ENFORCEMENT OF AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD.

Decided November 13, 1969

Mr. Jacob Sheinkman for petitioner in No. 22 ,088.

| Mr. Edward Carmack Cochran for petitioner in Nos.

22,568 and 22,569 and intervenor McEwen Manufacturing

. Company ‘in No. 22,088.

Pra aeE

Sener sca eambnel bi

= ba nasi oe ME) Roy tari

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Mr. Seth D. Rosen, Attorney, National Labor Relations

Board, of the bar of the Supreme Court of Connecticut,

pro hac vice, by special leave of court, for respondent.

Messrs. Arnold Ordman, Gene

Relations Board, Dominick EZ. Manoli, Associate General

Counsel, Marcel Mallet-Prevost, Assistant General Counsel,

and Herman M., Levy, Attorney, National Labor Relations

Board, were on the brief for respondent. ete

Mr. Wilson Sims for intervenor Washington Industries,

Ine. ses .

Before W RIGHT, LEVENTHAL and Ross, Circuit Judges.

Per Curtam: This appeal consolidates various compet-

ing petitions to review, modify, set aside, and enforce an

order of the National Labor Relations Board holding that

the McEwen Manufacturing Company had violated Sec-

tions 8(a)(1) and 8(a)(5) of the National Labor Relations

Act! during the course of an organizational campaign and

representation election ‘involving the Amalgamated Cloth-

ing Workers of America, AFL-CIO. The company seeks to

set aside the finding of 8(a)(1) and 8(a)(3) violations and

the Board order to bargain with the union. The union peti-

tions for review of the Board’s finding that McEwen and ‘ts

parent, Washington Industries, Inc., were not joint em-

ployers under the Act; for review of the Board’s decision

that McEwen had lawfully established a non-solicitation

rule; and to require the Board to order certain additional

remedies. We reject these challenges to the Board’s deci-

sion and enforce its order.

: +

The Board found that a letter and speech by McEwen’s

president to all employees just before the election warning:

that the plant might be closed if the union won, and the

“extengive and widespread acts of interrogation and intimi-

129 U.S.C. §§ 158(a)(1) and (5) (1964).

Counsel, National Labor

dation” ef employees by company supervisors violated

Section 8(a)(1).? After a careful review of the record, we -

find that substantial evidence supports this finding. '

The compariy argues that in any event its Section 8a)

(1) violations may not serve as.a predicate for the Board’s

order to bargain. The Supreme Court last term made it

clear in NLRB v. Gissel Packing Co.* that “[i]f the Board

finds that the possibility of erasing the effects of past prac- .

tices and of ensuring a fair election (or a fair rerun) by the

use of traditional remedies, though present, is slight and

that employee sentiment. once expressed: through cards

would, on balance, be better protected by a bargaining

order, then such an.order should issue * i of tg We find

substantial evidence to support the Board’: ‘conclusion that

the interrogation by company supervisors) and thei speech

and letter from the company president nade t the holding of

a fair election impossible.®

The company, however, challenges the Board’s finding

that on May 28, 1966, the union had valid authorization

cards from a majority of the employees. The company’s

basic contention is that some of ‘the authorization cards

2The Board’s. decision and order are reported at 172 NLRB

No. 99 (1968).

8395 U.S. 575 (1969).

4395 U.S. at 614-615. “Nhe Court indicated that a bargaining

order could also be imposed ‘‘ without need of inquiry into majority

status’’ where the ‘‘employer’s threats of reprisal were so coercive

that, even in the ‘absence of a § 8(a)(5) violation, a bargaining .

order would have been necessary to repair the unlawful effect of

those threats.’’ Id. at 613, 615.

‘The Company points out in its brief that on August 15, 1969,

the Board amended its order of July 3, 1969, by issuing an errata

containing a further paragraph. This errata was added after

petitions for review had been filed by both the union and the com-

pany. We rejected a motion to strike the errata from the record

on October 3, 1968. We.see no reason to strike that errata now.

The additional paragraph in no way altered the remedial order; it

merely amplified the rationale behind the Board’s decision and

helped explain why the Board felt that an order to bargain would .

be necessary. The company was in no way prejudiced by the addi-

tion of this errata.

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were obtained by union misrepresentations, the signers

being told that the “signatures were being obtained for the

‘purpose of holding an election, [and] that.the signer would

have the opportunity to vote [for. or against the union]

at the election.” Cards like those in question here which

clearly and unambiguously designate the union. as the

signer’s bargaining agent can be used to show a union’s

_strength unless the union representatives in obtaining the

ecards “deliberately and clearly cancel{l] [the clear lan-

guage of the card] with words calculated to. direct the

signer to disregard and forget the language above his sig-

nature.” Since elections usually follow even when author-

ization cards are solicited, a representation that there will

be an election does not of itself invalidate the cards.®

The company also contends that the cards of 18 em-

ployees are invalid because those employees were never

- called before the trial examiner to identify their signatures.

However, the courts have not imposed any requirement of

authentication b¥ the signer personally; testimony by one

who witnessed the signature is adequate. Colsoy Corpora-.

tion v. N.L.R.B., 8 Cir., 347 F.. 2d 128, 134,’ cert. denied,

382 U. S. 904.(1965) Fifteen of these cards were authenti-

cated by people who witnessed their execution. The other

three cards were properly authenticated by testimony that

. —

°NLRB v. Gissel Packing Co., supra Note 3, 395 U.S. at 606.

In Gissel the Court explicitly approved the following reasoning of

a trial examiner:

““With respect to the 97 employees named in the attached

- Appendix B Respondent in its brief contends, in substance,

that their eards should be rejected because each of these em-

ployees was told one or more of the following: (1) that the

card would be used to get an election (2) that he had the

right to vote either way, even though he signed the card (3)

that the card would be kept secret and not shown to anybody

except to the Board in order to get an election. For reasons

heretofore explicated, I conclude that these statements, singly

or jointly, do not foreclose use of the cards: for the purpose

designated on their face.’’ Ee

395 U.S. at 584 n.5; id. at 608, (Emphasis in original.)

eat ea

5a > :

the signer had returned the card to the union agent, —

adopting as his own the signature thereon.” _

Since the Board properly concluded that the union did

represent a majority of the employees on May 28, 1966, and

that the company had made a free election tepostible,

under Gissel the Board was justified i in issuing an order to

bargain.

II.

With respect to the points raised by the union, we affirm

the Board’s conclusion that the no-solicitation: rule was law-

fully established by the company in this case. The rule was

admittedly valid on its face and on this record we cannot

fault the Board’s finding that it was not promulgated for a

discriminatory purpose. See United Steelworkers of Amer-

ica v. N.L.R.B., 129 U. S. App. D.C. 260, 262, 393 F 2d 661,

663 (1918) We reject also the union’s claim that addi-

‘ tional remedies are required. The Board’s wide discretion

to fashion appropriate remedies insulates its action in this

case from judicial intervention. ?

Finally, the union asserts that McEwen and its holding.

company parent, Washington Industries, were joint em-

ployers under the Act.and that the Board’s order should,

™N.L.R.B..v. Howell Chevrolet Co., 9 Cir., 204 F. 2d 79, 85-86,

enforcing 95 NLRB 410, affirmed on other grounds, 346. U. S. 482

(1953).

The company on appeal to this court argued that one card

should not have been counted because the signature on the card

was printed, although the withholding certificate in the company’s

possession for the same employee was signed in script. The trial

examiner concluded that the card should not be counted because,

in view of the diserepancy between the signatures, he felt that the

General Counsel had failed to prove the authenticity of the signa-

ture on the card despite the testimony of a witness to the execu-

tion. The Board reversed the trial examiner as to this card and

found that the signature was valid in view of the ‘‘uncontradicted

_ testimony’’ of the fellow employee who witnessed the signaturé.

Sinca the Board obviously credited fhe uncontradicted - testimony,

it was justified in predicating its ruling on it.:

8United Steelworkers of America; AFL-CIO, Local 5571 v.

NLEB., 130 U.S, App. D.C. 369, 373, 401 F. 2d 434, 438 sagt

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also run against Washington Industries. Again, on this

record we cannot fault the Board’s disposition of this con-

tention. See M. Lowenstein & Sons, Inc., 150 NLRB 737

(1964) ; compare Freda Redmond and Sir James, Inc., 147 ©

NLRB 1025 (1964). This court, of course, remains open to

deal with any interference with its enforcement order by

persons not now parties to this proceeding.®

Accordingly, the union’s petition to review and modify

is denied, the company’s petitions to review and set aside

are denied, and the Board’s cross- Ar for enforce-

ment is granted.

So ordered.

JUDGMENT—Filed December 29, 1969.

Before: Waricut, LeventHat and Ross, Circuit Judges.

The above consolidated causes came on to be heard upon

petitions to review, and a cross-application for enforce-

ment of, an order of the National Labor Relations Board

dated against July 3, 1968, against McEwen Manufacturing

Company, its officers, agents, successors and assigns. The

Court heard argument of respective counsel of October 21,

1969, and has considered the briefs and transcript of record

filed in these causes..*@n November 13, 1969, the Court

being fully advised in the premises handed down its opinion

denying the petitions for review and granting enforcement

of the Board’s Order.

On ConstmperaTION Wuereor, Jt Is OrpereD Anp Ap-

supcED by the United States Court of Appeals for the Dis-

trict of Columbia Circuit that the petitions for review filed

by Amalgamated Clothing Workers of America, AFL-CIO, .

93 W. Barron & A. Houtzorr, FepERAL Practice and Pro-

CEDURE § 1437 (Wright ed. 1968 Pocket Part). See Regal Knit-

ware Co. v. N.L.R.B., 324 U.S. 9, 14 (1945); Bullock v. United

States, 6 Cir., 265 F. "94 683, 691, cert. denied, 360 U.S. 909, 932

(1959) ; Kasper v. Brittain, 6 Cir., 245 F. 2d 92, 96, cert. denied,

355 U.S. 834 (1957). :

- be and hereby are denied; and that the said order of the

National Labor Relations. Board in said proceeding be

enforced, and that McEwen Manufacturing Company, its

officers, agents, successors and assigns abide by -and: per-

form the directions of the Board in said order contained. |

(s) J. Skelly Wright,

Circuit Judge, United States Court |

See ee of Appeals for the District of

; Columbia Circuit.

(s) Harold Leventhal,

, Circuit Judge, United States Court

of Appeals for the District of

Columbia Circuit. —

(s) Roger Robb,

Circuit Judge, United States Court

of Appeals: for the District of

. Columbia Circuit.

aA ee

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

McEwen Manuracturine CoMPany

AND WasHINGTON INpustRIEs, INc.

and - *&Case No. 26-CA-2598 -

\ -

AMALGAMATED CLOTHING WoRKERS

or America, AFL-CIO '

DECISION AND ORDER.

On May 23, 1967, Trial Examiner Lowell Goerlich issued

his Decision in the above-entitled proceeding, finding that

the Respondent McEwen Manufacturing Company (herein

called McEwen) 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. The

Trial Examiner also found that the Respondent McEwen ©

had not engaged in certain other unfair labor practices al-

leged in the complaint and recommended that these allega-

tions of the complaint be dismissed. The Trial Examiner

granted the motion to dismiss the complaint as to Respond-

ent? Washington Industries, Inc. (herein called Washing-

ton). Thereafter, Respondent McEwen, the General Coun-

sel, and the Charging Party each filed exceptions to’ the

Trial Examiner’s Decision and a,brief in support thereof.

In addition, the General Counsel and the Charging Party

filed briefs in answer to the Respondent’s exceptions; and,

finally, Respondent Washington filed an answering brief.

” —— PETE NR ETAL

——

Harman to the provisions of Section 3{») of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its powers in conpection

with this case to a three-member panel.

The Board has reviewed the rulings of the Trial Bxam-

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, briefs, answering briefs, and the entire record

in this case, and hereby: adopts the findings, conclusions,

and recommendations of the Trial Examiner with the modi-

fications discussed below:

1. In agreement with the Trial Examiner, we find that

the Respondent McEwen is the sole employer of the em- .

ployees here involved, and that the complaint against

Washington Industries, Inc. (herein called Washington) as

a joint employer was properly dismissed.”

1Respondent McEwen has excepted to many of the credibility

findings made by the trial] Examiner. It is the Board’s established

policy, however, not to overrule a Trial Examiner’s resolutions

with respect to credibility unless, as is not the case here, the pre-

ponderance of all the relevant evidence convinces us that the

resolutions were incorrect. Standard Dry Wall Products, Inc., 91

NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).

2M. Lowenstein & Sons, etc., 150 NLRB 737, footnote 2 at 738;

ef. See Bee Slurry Matic, Inc., 169 NLRB No. 30; and ef. Miami

Newspaper Printing Pressmen Local No. 46 etc. (Knight News-

papers, Inc.), 188 NLRB 1346, enfd. sub nom Miami Newspaper

Printing Pressmen’s Local 46 v. N.L.R.B., 322 F. 2d 405 (C.A.

D.C.). Member Brown, in agreement with the General Counsel’s

contention, would find that Washington and McEwen are joint

employers for purposes of this proceeding in view of their close

ownership and management relationships. As more fully described

by the Trial Examiner, Washington, a holding company, is the

sole owner of First National Company (FNC), of which McEwen

is a wholly owned subsidiary. In addition, Washington owns 8914

pereent of the voting stock of Washington Manufacturing Com-

pany (WMC), a jobbing and wholesale operation, which is Mc-

Ewen’s only customer. McEwen’s entire production output con-

sists of garments made to order, under a cost-plus contract, for

WMC from materials provided by the latter. Thus, McEwen, in

_ (Footnote continued on following page.) -

10a

2. The Trial Examiner found, and we agree, that ‘the

Respondent’s no-solicitation rule, being valid on its face,*

was lawfully posted on May 20, 1966,‘ in order to maintain

orderly and efficient production’ in the plant. Contrary to

the General Counsel’s contention, the record supports the

Trial Examiner’s finding that the rule was posted only af-

ter the Respondent noticed the quality and quantity of the

employees’ work had declined. In these circumstances, the

fact that the rule was posted soon after the Union’s orga-

nizing efforts began does not warrant an inference that its

purpose and intent was to discourage union activities

among the employees.®

3. We agree with the Trial Examiner’s conclusion

without, however, adopting his rationale, that the Respond-

ent violated Section 8(a) ( 1) of the Act by. plant president

effect, functions merely as the production arm of WMC. In this

posture, the latter is in a Strategic position to dictate and control

McEwen’s production policies including, of course, wages paid

McEwen's employees. Washington, presiding over WMC, FNC,

and McEwen, controls and manages its subsidiaries through inter-

locking and overlapping boards of directors and corporate officers.

Washington selects the directors of FNC. who, in turn, pick the

directors of McEwen. McEwen’s president, vice-president, and

Secretary-treasurer are also directors of WMC. In addition, Me-

Ewen's vice-president and Ssecretary-treasurer are officers and

directors of FNC and Washington.

‘The executive offices of Washington, FNC, and WMC are

located in the same building in Nashville, Tennessee, In Member™

Brown's opinion, these facts dre distinguishable from those in the

cases cited by his colleagues and amply support a finding that

Washington exercises such control over the internal labor policies

‘of McEwen as to render it 4 joint employer with McEwen and he

would sa find. Freda Redmond and Sir James, Inc., 147 NLRB

1025; ef., Phil Modes, Inc., ete., 159 NLRB 944, 947,

*No exception was taken to the Trial Examiner’s finding that

the rule was lawful on its face.

‘Unless otherwise indicated, all dates are in 1966. -

"Member Brown would find that the record establishes that

this rule was promulgated for the unlawful purpose of frustrat-

ing employee exercise of Section 7 rights, since he views the evi-

dence as indicating that Robertson looked for some work devia- :

tions when he learned of the union activities and “‘later’’ found

the work was not ‘‘quite as good.”’

lla

Pedigo’s letter of July 14 and speech of July 26 to all em-

ployees. Unlike the Trial Examiner,® however, we base our

conclusion solely upon the threatening temarks contained

in these communications.” Thus, in both the letter and

Speech Pedigo recalled what happened to a particular man-

ufacturing company in nearby Henderson, Tennessee, Which

closed soon after the employees there selected this Union te

represent them. Pedigo’s letter warned the employees that

“this [closing the plant] could happen here [at McEwen]

if a union is voted into this plant. . 2” And, in his

speech, Pedigo threatened that “. . . this Union, will do

the same thing for you . . . that the Union has done to-

the employees of [the closed plant in Henderson]

We do not want that to happen. It will not happen if we —

‘ have atiy control of the matter, but if the Union comes in

the Company cannot be responsible for what happens . . .”

In addition, Pedigo’s letter warned the employees that if

they select the Union to represent them, the Company might

decide not to renew its lease with the City of McEwen for

the land on which the plant is located, reminding them that

the present lease would expire within a.few months. We

®The Trial Examiner erred in considering himself bound by,’

and relying upon, the Board’s findings sustaining objections in

*the prior representatién proceeding, as his basis for concluding -

that Pedigo’s speech of July 26 and letter of July 14 were violative

of Section: 8(a)(1) of the Act. It is well settled that the Board’s

findings and conclusions with respect to conduct alleged as objec-

tionable in a representation proceeding are not binding upon the

- Trial Examiner in a subsequent hearing where such conduct is

alleged as an unfair labor practice, since the issues are different

. in the two types-.of proceedings. Cf., Dal-Tex Optical Company,

Inc., 137 NLRB 1782, 1786-1787.

*™Member Brown would not fragmentize the letter and the

speech but would find each unlawful in its entirety. In addition,

Member Brown agrees with the General Counsel’s contention that

the Respondent also violated Section 8(a)(1) by Pedigo’s speeches

of May 24 and June 15, both of which stressed the futility of

union representation and warhed that mnions bring nothing but

trouble.

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find that these remarks clearly threatened the employees

with plant closure if they selected a bargaining representa-

tive, and that the Respondent thereby interferred with, co-

erced, and restrained the employees in violation of Section

8(a)(1) of the Act.

'4. We also agree with the Trial Examiner that the Re-

spondent, through its supervisors Robertson, Hargis, and

Parchman violated Section 8(a)(1) of the Act by variously

interrogating the employees about their union sympathies,

threatening employees with economic reprisals if they se-

lected the Union to represent them, promising them benefits

if they refrained from supporting the Union, and making

other derogatory remarks about union affiliation, all of

which, we find, tended to interfere with, coerce, and restrain

the employees in the exercise of their Section 7 rights. Un-

like the Trial Examiner, however, we do not limit our find-

ings to the separate incidents of supervisory interference

detailed by him-as items (a) through (i) of his conclusion.

Rather, we view these incidents as merely illustrative of

the extensive and widespread acts of interrogation and in-

. timidation in which the Respondent’s supervisors engaged,

as more fully described in the Tria] Examiner’s recitation .

of facts, and base our conclusion upon the totality of the

Respondent’s conduct and the context in which the enumer-

ated incidents occurred.’

5. The Trial Examiner recommended dismissal of the

allegation that the Respondent violated Section 8(a)(5) of

the Act by- refusing to recognize and bargain with the

make such additional findings as they would, in any event, only

be cumulative and, therefore, would not affect our remedial order

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13a

Union on and after May 28,° because he concluded that the

union’s majority status on that date had not been estab-

lished. Contrary to the Trial Examiner, we find that the

Union was entitled to recognition-on that date and that the

Respondent’s refusal to grant recognition ag We bargain

with the Union violated Section 8(a)(5) of.the Act.

As more fully described in the Trial Examiner’s Deci-

sion, the Union began its campaign to organize the Re-

spondent’s production and maintenance employees early in

May and by May 28 it had obtained signed authorization

cards from 109 of the 172 employees then in the bargaining

unit. Of the 109 cards which were offered in evidence to

establish the Union’s claim of majority Status, the Trial cp

Examiner admitted 100. cards’ in evidence as “seemingly

valid.” And, of the 100 cards thus admitted, the Trial Ex-

‘aminer found that 14 were invalid for one reasén or an-

other, and that the Union’s claim of majority therefore had e

not been established. Thus, the Trial Exammer rejected § _ - &

nine cards as invalid because he found insufficient evidence

to establish that these eards were signed for the purpose *—

stated thereon, namely, to authorize the Union to act as

*We find no merit in Respondent’s ‘contention that June 23

rather than May 28 is the crucial date for determining the union’s

majority status because the Union repeated its bargaining demand

in a letter which Respondent received on June 23. Rea Construc-;

tion Company, 137 NLRB 1769, footnote 1 at 1770. - Accordingly,

we also find no merit in Respondent’s contention that the author-

ization cards of employees who’ were working on May 28 but whose

employment was permanently terminated thereafter should -not be

At footnote 18 of ‘his Decision, the Trial Examiner identi-

fied the nine cards which he refused: to admit in evidence but

does not state any reasons for his action. Ai the hearing the

parties stipulated, howeyer,. that six of the cards were signed by -.

employees whose employment was permanently terminated prior

to the demand date. These’ cards were properly excluded. The .

General Counsel has’ excepted, however, to the exclusion of the

cards signed by Fay Branch,* Lula Smith, and Bessie Lou Capps. SY

The record indigates, however, that General- Counsel withdrew his / Hf

offer of Capps’ card, and did not subsequently reoffer it in évi- |

dence. The card signed by Smith is considered in the text below.

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the employees’ bargaining agent, and five tards because-he

found that the employees’ signatures were insufficiently

authenticated since the General Counsel did not call any of

these employees as a witness and failed to account for his

failure to do so. The Respondent has excepted for numer-

ous reasons to the Trial Examiner’s failure to find 42 other

cards invalid for purposes of establishing the Union’s ma-

jority. All cards in jssue are discussed below and, to the

extent possible, are Selatan together with others alleged

to be invalid for the same or related reasons. The remaiz-

ing 44 cards are not alleged to be invalid.

Signatory did not testify and authenticating witness is

insufficient; printed signatures: The Trial Examiner re-

jected four cards as not having been properly authenti-

"cated," i.e., those signed by Lemuel L. Palk, Eldton Bishop,

Norma Jean Black, and William D. Shields, and excluded

that of Lula Smith, on these grounds and the Respondent

contends that 10 others’? should be held unacceptable for

the same reason. In addition, the Respondent has attacked

the card of Mary M. McCaslin solely on the ground that the

signature is printed. We find these 16 cards valid for the

following reasons: | :

Palk’s card was rejected because the authenticating wit-

_ hess, Ellen Betty Elliott, admittedly did not see Palk sign

-and he did not physically return the card to the solicitor.

We find these facts immaterial in the circumstances herein.

“As found by the Trial Examiner, based on Elliott’s uncon-

tradicted testimony, Elliott gave Palk afblank authorization

card which she asked him to sign; later, when she asked

The Trial Examiner correctly rejected two other cards—

that of Ruby Nell Christian because the evidence fails to establish

that this card was signed on‘ or before May 28 and that of Fay

Branch. because it is not established that she was considered to be

on temporary leave for maternity. )

12Annabelle Crowell, Joyce Dotson, Helen M. Larkin, Jackie

Cook, Joslyn M. Smith, Gladys Hinson, Betty Ann Turner, Violet

Bailey, Lola Craft, and Pear] Pate.

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Palk for this card, he told her to get it from the glove com-

partment of his car. Aecordingly, she took it from his car,

at which time it had already been signed and the blanks

thereon had been filled in, except that she inserted the

name of the company and the job Palk held. The Board

has long held that an authorization card may be properly

authenticated by a person other than the signer and that

the latter’ s absence as a witness need not’be accounted for.

Thus, a card may be authenticated by a witness who testi-

fies that he observed its execution,!* but the Board will also

accept as authentic any authorization cards which were

returned by the signatory to the person soliciting them

-even though the solicitor did not witness the actual act of

signing.’® In this case, Palk not only returned the card in

due course by telling Elliott where to pick up his card,’®

but he also thereby acknowledged any writing thereon as

his own.’? Nor is a ecard whith is otherwise properly au-

thenticated rendered invalid simply because the signer had

not filled in all of the blanks when he turned it in to the

Union.'® |

A ecard excluded from evidence by the Trial Examiner

for similar reasons was that of Lula Smith. We find merit

in the General Counsel’s position that this card should have

been admitted into evidence and counted asa valid desig-

nation of the Union. Bonnie Jane Brooks’ solicifed em-

ployee Smith’s signature and testified without contradic-

tion that she personally witnessed Lula Smith’s signing of

Thrift Drug Company of Pennsylvania, 167 NLRB No. 57;

Universal Metal Finishing a Division of C. A. Roberts Co., 156

NLRB 138, 146 (card of Sewards).

14Thrift Drug Company,. supra, and cases cited at footnote 7

of the TXD. ‘ ;

157d., and eases cited at footnote 8 of the TXD.

16N, L.R.B. v. Howell Chevrolet Co., 205 F. 2d 79, 85-86 (C. A.

9), enfg. 95 NLRB 410.

17Verlin L. Pulley, et al., d/b/a Capitol- Varsity Cleaning Co.,

163 NLRB No. 145 (card of Marjorie Maynor), enfd. in peft.

part __ F. 2d __ (C.A. 6, June 5, 1968). ;

18Jhid. (Marjorie Maynor’s card). |

SURAT Rant a th ES ta ALO AE ae a ERO EA YI Bh che ARLE EE.

‘16a

the card on the date indicated thereon.'? She further tes-

tified, and it is undenied, that Smith’s name and job title

had been written on the card before it was,yeturned, but = «

she was unable to state with certainty that t#e Respondent’s

name appeared on the card when it was tufned over to her. |

It was this uncertainty, coupled with thé fact that Smith |

was not called to testify, that led the Trial Examiner to re- |

fuse to accept the card. However, in view of the general

rules summarized above and cases cited in connection with

Palk’s card, it is patent that this holding was not warranted

by these factors, either together or standing alone. |

A similar question is raised with respect to the cards

signed by the 10 persons listed in footnote 13, above. The

Respondent contends these cards were insufficiently authen-

ticated and should be held invalid for purposes of determin-

ing majority status because the individuals who signed the

cards did not testify.2° However, in each instance another

employee who had solicited the signature testified without

contradiction that she had seen the card signed on the date

shown thereon, that the signatory then turned*over the card

to the solicitor, and that she (the solicitor) in turn gave the

card to Agnes Hooper. As stated above, it is well settled

that either the testimony of a witness to the signature, or

the testimony of the solicitor that the card was returned in

due course, is sufficient to authenticate the card for pur-

poses of establishing its validity.

The Trial Examiner rejected, as insufficiently authenti- ,

cated, the cards of Bishop and Black not only because they Ift

were not called to verify their signatures, but also because -.“/

their names were printed on the cards in the space provided. f

19All parties had full opportunity to examine and cross-ex- |

amine Brooks concerning the facts on which we rely.

20We note that the card of Annabelle Crowell, whichis one of

those with which we are concerned here, had the signer’s name

printed rather than written, but the Respondent has not attacked

it on that basis as it has others discussed hereinafter. Rather, it

relies solely on the failure of the signatory to testify in person:

* + OA Re a8: tees 5 TRAEERlA s RBAOGIS aaa TESS

17a

for signatuye. " Agnes Hooper testified that-she gave

Bishop a blank oS card, which Bishop executed -

in her presence on May 11 by printing his name in the space

provided for signature and thereupon returned it to her.

Hooper admittedly wrote Bishop’s name on the card above

the words “Print your full name here”? And, as to Black’s

card, employee Carolyn Betty testified that she gave a

blank ecard to Norma Jean Black and that, when Black sub-

sequently returned the card to her, Black’s name had been

printed in the signature space. Betty admittedly did not

witness the execution of Black’s card. In view of the fore-

going uncontradicted testimony, we find that these cards

are not rendered invalid by the fact that they bear printed

signatures rather than being signed in script,*' or by the

fact that Bishop and Black were not called: to testify, or

by the fact that Black’s signature was not witriessed.”

Another eard which bears a printed signature and which

the Respondent urges should be rejected for purposes of

determining majority, is that of Mary M. McCaslin: How-

ever, Mrs. McCaslin testified in person and identified her

-eard and signature as having been completed on the date

shown upon it. It is therefore clear that her card is not

rendered invalid-because she printed her name rather than

writing it in script. | ,

The final card in this group is that bearing the name

“William D. Shields.” The Trial Examiner rejected this

card because that name did not appear on the Respondent’s

payroll for: May 28 and because Shields’ absence as a wit-

ness was not accounted for. However, we find that Shields’

card was’ properly authenticated and may be counted in

computing the Union’s representative status. The record

shows that a “Billy Shields” whose Form W-4 is signed

“Billy D. Shields”, was on the Respondent’s payroll on the

21Verlin L. Pulley, et al., supra (cards of Marjorie Maynor

and Wilma Reidenbach). ;

227d.; Universal Metal Finishing, supra.

‘

18a

critical, date. Furthermore, Agnes Hooper testified, with-

out contradiction, that employee Bobbie Shields rave Wil- |

liam D. Shields a blank authorization card on May 10, and

that the latter then filled in and signed the card in Hooper’s

presence. In view of this testimony, it was not fatal to the

validity of Shields’ card that he was not called personally

to identify his signature. Nor does Respondent contend

that “Billy D. Shields” is not the same person as “William

D. Shields.” Rather, Respondent challenged the validity of

Shields’ card on the ground that his employment was per-

* manently terminated gy June 6, before the Union’s second

demand for recognition and before the election of July 27.

We have heretofore rejected the contention that cards

Signed by persons terminated after May 28 should not be

’ eounted.2%

Employees who quit after May 28: The Respondent

contends that 20 employees who signed cards?4 were no

longer its employees at the time of the hearing, having

voluntarily severed their employment relationship some-

time after May 28 and that their cards must be rejected.

Only one of these empl6yees, Mary Profitt, is alleged to

have quit prior to May 28. However, it is clear from the

record that in the middle of May she learned that she was

to have surgery performed and so informed the Respond-_

ent, but did not quit her job. The Respondent’s payroll

list of May 28 shows that she was carried as an employee,

and its records show that she was terminated August 29.

It is well settled that, the determination of a union’s rep-

‘resentative status must be based on whether it had been

28Footnote 9, supra. 5 :;

*4Mary Profitt, Diane Gray (Whitaker), Shirley Rickard, John

Andrew Mallady, Jessie Marie Elliott, Alneita Rye, Jo Ann

Parchman, Zella M. Tidwell, Fern Ann Turner, Bonnie 8S; Brown

(Weatherley), Gloria J. Tidwell, Bonnie Jane Brooks, Agnes.

Hooper, Pearl F. Jones, Ruth W. Curtis, Margaret »Geraldean

Ross, Bonnie Page, Ethel Barnes, Bonnie Hooper, and Juanita

Herbison.

19a

designated. as a representative by a majority of the em-

‘ployees on the payrolkjn the appropriate unit on the crucial

date, and we have found that ‘May 28, the date of the Union’s

initial demand, is‘the time as of which the finding must’ be

made. Accordingly, it is clear that there is no merit to the

Respondent’s contention, and that these 20 cards signed by

persons in the ‘Respondent’s employ on May 28 should be

counted. é . 7

Signatory’s intent to-designate the Union not estab-

lished; employees told or thought cards were for purpose

of having an eléction: Included in this group are the nine

cards rejected by the Trial Examiner and 10 attacked by

the Respondent?* on this basis. ' \

The Trial Examiner appears to have assessed the) va-

lidity of certain cards on the basis of whether the General

Counsel had established the subjective intent of the signer\?¢

In this respect, the Trial Examiner appears to have devi

ated from the principle that “an employee’s thoughts (or

afterthoughts) as to why he signed a union card and what >

he thought that card meant cannot negative the overt action

of having signed a card .°. . ,”27 Thus, in the case of

Pearlene Brooks’ card, the Trial Examiner concluded that

it could not be inferred that she signed it for the purpose

of authorizing the Union to represent her. Brooks, how-

ever, testifying on Respondent’s behalf, admittedly signed

the card after personally filling in the blanks thereon, and

She then returned it to the person who had solicited her

_ Signature. Under the circumstances, the fact that she may

_have been told that the purpose of the card was “to show

that we might be interested in the Union” (which is in fact

a fair representation of its purpose but in any event is far

2°Sara Siler, Jennie Ethridge, Ruby Poston, Sue. Lory, Patsy.

A. Hooper, Carletta Bernice Coram, Verlene Caballero, Vergie

Ethridge, Mary Petty, and Mildred Curtis.

26See footnote 20 of the Trial Examiner’s Decision, infra. -

*7Joy Sik Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 744 (C.A.

D.C.), cert. denied 341 U.S. 914, enfg. as modified 85 NLRB 1263.

ng as Sn ee ere Od Sate 4 ee Re MO Ee

20a

from a statement that the card would not be used for the

purposes stated on it), does not constitute probative evi-

dence to negative her oyert act of signing.?® Accordingly,

her card should be counted. we

Since the Trial Examiner obviously applied an incorrect

standard in determining the validity of the cards, it is

necessary to re-examine the remaining eight rejected on

this basis, as well as the 10 questioned by the Respondent.*°

Of these: 18 eards, there are five as to which there is no

assertion that any statement was made that the union card

.was for the purpose of an election, and one as to which the

~ statement assertedly made was clearly overcome by other

evidence showing nonreliance on that statement. Thus,

Sara Siler testified that she was told that they “needed so -

many to send to the union”; without any reference to An

election; Dorothy Parchman testified that she was told the

card was “for an election of the Union”; Vergie Ethridge

testified that she had no discussion with anyone concerning

its purpose before signing the card, but she signed to have

an election; Sue Lory: testified that she read the card be-

fore she filled in the last. three lines, including her signa-

ture, and “understood” that the card was to get an election;

and Patsy A. Hooper testified that she knew it was a‘union

card that she signed, but “thought it would be a union and

if the election came. you could vote the way you wanted to.”

_ Verlene Caballero testified that she was told that “if they

had a certain percentage they could get an election at the

plant.” But in addition, she testified that she wanted to

know what was going on and figured that if she joined she

would know what was going on, thus indicating unequiv-

28Delight akeey Inc., 145 NLRB 893, 904, enfd., 353 F. 2d

344 (C.A. 6).

2°The remaining 44 ‘cards, admitted into evidence are not

alleged by the Respondent to be invalid. As each was identified

and authenticated on the record, we find that they may be relied

on to determine the Union’s representative status. _

FONT MR ENTIRE OLDE SLND I ha EGS BAB hrs Hs INT at os PEAS CEN

Fp a ag Tava

~ Mla

‘ocally that she signed for the express purpose of joining ©

the Union. Caballero could not render her designation of

- the Union ineffective by a mental reservation, if she had

one. Since each of these witnesses was testifying to her

own subjective purposes or thoughts in signing, this testi-

mony in this respect did not serve to negative-the probative

force of their own act of signing, and we therefore find

these six are valid designations of the Union.

Of the remaining cards, five signatories (Carletta

Bernice Coram, Mary Petty, Hazel Curtis, Ruth Pittman,

and Margie Adams) each testified to the effect that when

she was asked to sign she was told that they needed to get

enough cards for an election, and seven (Margie James,

Margaret Nell Frazee, Blanche White, Irene Buchanan,

Jennie Ethridge, Ruby Poston, and Mildred Curtis) each .

testified to the general effect that she was told that they

needed “so many cards” to get an election and there was no

membership obligation as a result of signing, that they did

not have to vote for a union even if they signed the card.

Even under the most stringent tests, for the reasons set

forth below, we are unable to conclude that under the cir-

cumstances here, where an election was held®° in the con- .

text of widespread interrogation and threats by the Re-

30An election, pursuant to Stipulation for Certifieation upon

Consent Election was conducted on July 27 in the followi ing unit,

which we hereby find to be appropriate:

All production and maintenance employees of the Em-

ployer at its McEwen, Tennessee, plant, including the shipping

clerk, the mechanics, the ticket and recut girl and the marker, :

but excluding the foreladies, cutting department foreman, all

office clerical employees, and all guards, professional em-

ployees and supervisors as defined in the Act.

The Union lost that election by a vote of 96.to 60, and theveaiter.

filed timely objections to conduct affecting the election.- The

Region 1 Director, upon investigation, recommended that the ob-

jections be sustained. Exceptions to the Regional Director’s re-

port were duly filed and, on November 18, 1966, the Board issued

a Decision and Order setting the election aside and directing a

) second election. ;

22a

spondent, the cards of Coram, Petty, Hazel Curtis, Pittman,

and Adams must be rejected. ‘As to the latter seven, re-

ferred to above, we need not decide whether under our ra-

tionale, infra, these cards may properly be counted, inas-

much as the other cards found above to be valid.total 92

and hence constitute a majority of the 172 employees in

the unit on May 28. ee

The central inquiry in determining the effect to be given

_ authorization cards is whether the employees, by their act

of signing, manifested an intent to designate the union as

their bargaining agent.*! In assessing that intent, the

wording of the card is of paramount importance. Where

a card on its face clearly declares a purpose to designate

the union, the card itself effectively advises the employee

of that purpose, and particularly so where, as here, the

form of the card is such as to leave no room for possible

ambiguity.*? An employee who signs such a card may per-

haps not understand all the legal ramifications that may

follow his signing, but if he can read he should and must

be assumed to be aware at least that by his act of signing

he is effectuating the authorization the card declares.**

31Levi Strauss & Co., 172 NLRB No. 57. -

’2Because the card here involved is forthright and unambig-

uous in its heading and text, the instant case is distinguishable for

that reason alone from N.L.R.B. v. Peterson Bros., Inc., 342 F. 2d

221 (C.A. 5), in which the Court was concerned with and based its

decision on a card which it regarded as ambiguous on its face. And

in [.7.T. Semi-Conductors, Inc. v. N.L.R.B., F.2d (C.A. 5,

May 21, 1968), reversing in relevant part 165 NLRB No. 98, the

court found the card even more ambiguous than the one in the

Peterson case. .

’8For this reason, and in the absence of evidence that they

’ were prevented from doing so, we find it immaterial that a num-

ber of the employees herein testified that they did not read the

card before signing it. In any event, it seems inconceivable that

in a campaign as vigorous as that carried on in this situation by

both the Union and the Respondent the employees would be un-

‘ aware of the nature of cards that were being distributed and they

were being asked to sign. Cf. Levi Strauss & Co., supra.

\ a

‘ ’

cee a Ls ee

w’

23a

Without ascribing to the signing of such cards all the

solemnity and binding effect associated with such legal

documents as deeds or contracts, we believe there is no

valid’ basis in reason or law for denying face value to the

signed cards, as in the case of other signed instruments,

absent affirmative proof-that the signing was a product of

misrepresentation or coercion.** |

Declarations to employees that authorization cards are

desired to gain an election do not under ordinary circum-

stances constitute misrepresentations either of fact or of

purpose.** That purpose, moreover, is one that is entirely

consistent with the authorization purpose expressed in the

cards as well as with the use of the cards to establish ma~

jority support. A point sometimés overlooked ig that, in |

basic purpose, there is no essential difference between cards

that are needed for a showing of interest to gain an election

and cards that must be used to support a claim of majority

designation in a Section 8(a) (5). unfair labor practice pro-

ceeding. The requisite showing under Section 9(c)(1) (A)

that “a substantial number of employees . . . wish to

be represented for collective-bargaining purposes . . .”

84See, Cumberland Shoe Corp., 144 NLRB 1268, and Order

Amending Decision, January 13, 1964, enfd. 351 F. 2d 917 (C.A. .

6). For other recent Court cases upholding that principle, see,

e.g., International, Union, United Automobile Aerospace and Agrt-

‘ cultural Implement Workers of America v. N.L.R.B. (Preston

Products Company, Inc.), 373 F. 2d 671 (C.A. D.C., Nov. 14,

1967), enfg. 158 NLRB 322; Amalgamated Clothing Workers of

America v. N.L.R.B. (Sagamore Shirt Co.),'365 F. 2d 898, 906-

907 (C.A. D.C.) ; Happach v. N.L.R:B., 353 F. 2d 627 (C.A. 7).

Recent. court decisions which, have’ questioned the validity of

“the Board’s principles concerning authorization <cards include

' \ NLL.R.B. v. Dan Howard-Mahufacturing Co., 390 F. 24 304 (C.A.

7, January 12, 1968), 67 LRRM 2278; Crawford Manufacturing

Co. v. N.L.R.B., 386 F. 2d 367 (C.A. 4), cert. denied + US.

(4/22/68) ; N.L.R.B. v. Swan Super Cleaners, 384 F. 2d 609 (C.A.

6); N.L.R.B. v. Peterson Bros., Inc., 342 F, 2d 221 ¢C.A. 5);

Engineers & Fabricators, Inc. v. N.L.R.B., 376 F. 2d 482, 486-487

(C.A. 5).- .

35N .L.R.B. v.

| J. Glasgow Co., 356 F. 2d 476 (C.A. 7).

OEE REDE ARMM E DSIRE GERI LENT IE IIE TLE IE IRE OR Mew: 7%

ees

CE a a

PRET

24a

cannot be made by cards whick simply request an election, —

but must be by cards stating the wish to be represented: by

thg particular union. Such a requirement entails an ex-

pression of intent in all respects the same as that in a card

which authorizes representation for bargaining purposes.

The fact that employees may be told that an election is

contemplated or that the eard will make an election possible

does not in our view provide sufficient basis ‘in itself to

vitiate-unambiguously worded authorization cards on the

theory of misrepresentation. A differont situation is pre-

sented, of course, where union organizers solicit cards on:

the explicit or indirectly expressed representation that they

will use such ‘cards only for an election and subsequently

seek to use them for a different purpose, i.e., to establish

the unioh’s majority independe tly. In such a situation the

Board invalidates the cards for majority computation since

the nature ofthe representation is such as to induce a con-

ditional delivery for a restrictive purpose.* .

We believe that this standard comports not only with

sound legal principles but also with the realities of union

organizational practices.7 The Board’s experience shows

*°The. foregoing does not imply that a finding of misrepre-

sentation is confined to situations where employees are expressly

told in haec verba that the ‘‘sole’’ or ‘‘onl®’’ purpose of the cards

is to obtain an election. The Board does not suggest such a

mechanistic application of the foregoing principles, but looks to

substance rather than to form. It is not the use or nonuse of cer-

tain key or ‘‘magic’’ words that is controlling, but whether or not

the totality of circumstances surrounding the card solicitation

assures the card signer that his card will be used for no purpose

other than to help get ‘an election. : °

’TWith due deference to the view expressed by the U.S. Court

of Appeals for the Fifth Circuit in its opinion in Engineers &

Fabricators, Inc. v. N.L.R.B., 376 F. 2d 482, 486-487, until the

matter has been passed upon by the U.S. Supreme Court, we are

unable to concur that our approach applies too lax a standard or

that when cards are ‘‘challenged because of alleged misrepresenta:

tions in their procurement’’ the Board must probe ‘‘into the. sub-

jective intent of the challenged signers.’’ Such a standard is at

(Footnote continued on following page.)

° : a“

that in nearly all organizational situations unions expect

to, and do, proceed via the election rotte in their effort to

gain representation rights, and they obtain designation

cards with the thought of using them first in the prelimi-

nary step to obtaining recognition, i.e., to make the showing

of interest required for the processing of a representation °

petition. It is therefore only to be*expected that there will

be considerable discussion during an organization cam-

paign of a contemplated representation proceeding and of

the need for sufficient authorization’cards for that parpose.

Indeed, it would be surprising if no such mention were

made. It is in the exceptional and relatively infrequent

situations in which an employer by his unfair labor prac- -

tices has made a fair election impossible.** that unions with

a card majority resort to 8(a)(5) complaint proceedings in

an effort to establish their right to representation—in fact,

that avenue is normally closed to unions unless substantial

independent unfair labor practices have occurred.** We

odds with a long line of judicial authority holding that in the

absence of clear proof of fraud or coercion, full effect must be

given a clear authorization card regardless of the subjective state

of mind of the:signer. See, e.g., N.L.R.B. v. Fosdal, 367 F. 2d

784, 786-787 (C.A. 7) ; N.L.R.B. v. Gorbea, Perez & Morrell, 300 F.

2d 886, 887 (C.A. 1); Joy Sdk Millis v. N.L.R.B.,- supra; Furr’s

Inc. v. N.L.R.B., 381 F. 2d 562 (C.A. 10). To open up avenues of

proof of subjective intent would create strong temptations to

induce’ employees to assert a retroactive repentance or disavowal

which would not be subject to the normal evidentiary checks on

truth or falsity. In this connection, see, e.g., the discussion by the

Court in International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, UAW v. N.L.R.B:

(Preston Products Company, Inc.), 373 F. 2d 671 (C.A..D.C.; Nov.

14, 1967), enfg. 158 NLRB 322.

38Joy Sik Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732

(C.A. D.C.), cert. denied 341 U.S. 914.

8°This is borne out by the Board’s case statistics. In Fiscal

Year 1967, for instance, the Board conducted 8,116 elections.

Contested cases in which union majority was determined by cards, —

apart from elections, numbered 157—about 1.9 percent of the num-

ber of elections conducted. Of the aforesaid 157 cases, all but 16

> | (Footnote continued on following page.)

ea>

perceive no valid reason for- refusing in a complaint pro-

ceeding to accord the usual probative value to umambiguous

authorization cards simply because at the time the union

still thought it could participate in a fair election it may

have stressed the election use of the cards rather tham the

alternative use to. which they were later put. As noted

- § above, there is no conflict or contradiction im purpese be-

‘tween the use of cards to make a showing of imterest in

election cases and their use to establish majerity im the

limited situations arising under the Joy Sik -dectrime.

Absent some other disability, their use, or prepesed use, to

secure an election does not alter thejr essential character

as designations of the union to act as collective-hargaining

representative. To hold otherwise would oly result im

- allowing an employer to profit from his own unfair labor >

practices and thereby frustrate statutory poley. __

In this case, as noted above, we have found that there

was no direct or indirect representation to the card sigmers

only purpose of the cards was to get an election. We have

further found that other matters relied upom by the Re-

spondent do not invalidate the cards. Accordingly, we con-

elude that the Union represented a majority of the em-

ployees at the time it demanded recognition, and that the

Respondent violated Section 8(a) (5) in refusing te grant

such recognition.

whose cards of counted toward. the majority that the

The Remedy.

As we have found that ‘the Respondent has engaged in

additional violations of the Act, which go to the heart of

the Act, and that these violations have been extensive and

involved situations where a fair election was made impossible or

was invalidated by employer unfair labor practices. These 157

cases were not only those in which Board Decisions issued, but

included all such cases, whether closed by imformal er formal

settlement agreement in the Region, by Trial Examines mewn ~

mendation, ats Board-Order, or by court decree. -

27a

prolonged, we deem it appropriate to issue a broad cease

and desist order in place of the narrow one recommended

by the Trial Examiner.

ORDER.

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

hereby orders that the Respondent, McEwen Manufactur-

ing Company, its officers, agents, successors, and assigns,

shall: :

1. Cease and desist from:

(x) Interrogating employees concerning their ‘union =

membership, activities, or sympathies, to discourage their

membership in, or support of; Amalgamated Clothing

Workers of America, AFL-CIO, in a manner constituting

interference, restraint, or coercion within the ‘meaning of

Seetion 8(a)(1);

(b) Threatening to close down the plant or engage in

other reprisals if the employees engage in union activities

or if a majority of the employees select the above Union,

or any other labor organization, as their collective-bargain-

ing representative;

{c) Refusing to recognize and bargain collectively with:

Amalgamated Clothing Workers of America, AFL-CIO;

(d) In any other manner interfering with, restraining,

or coercing its employees in the exercise of the rights to

' self-organization, to form labor organizations, to join or

assist Amalgamated Clothing Workers of America, AFL-

CIO, or any other labor organization, to bargain collec-

tively through representatives of their own choosing, and

to engage in concerted activities for the purpose of collec-

tive bargaining or other mutual aid or protection, or to

refrain from any and all such activities.

2. Take the following affirmative action which is.neces-

sary to effectuate the policies of the Act:

phe at

‘Ba

(a) Upon request bargain collectively with the above-

named Union as the exclusive representatiye of the em-

ployees in the following unit with respect to rates of pay,

wages, hours of work, and other terms and conditions of

employment, and, if an understanding is reached, embody

the same in a signed agreement. The bargaining unit is:

All production and maintenance employees at the Me-

Ewen Manufacturing Company plant at McEwen, Ten-

nessee, including the shipping clerk, the méchanics, |

the ticket and recut girl and the marker, but excluding

the foreladies, cutting department foreman, and all

office clerical employees, and all guards, professional

employees and supervisors as defined in the Act.

(b) Post at its plant in McEwen, Tennessee copies ‘of.

the attached notice marked “Appendix.” Copies of said

notice, on forms provided by the Regional Director for |

Region 26, after being duly signed by Respondent’s repre-

sentative, shall be posted immediately upon receipt thereof,

and be maintdined by it for 60 conseeutive days thereafter,

in conspicuous places, including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by Respondent to insure that said notices are not

’ altered, defaced, or covered by any other material.

- ing, within 10 days from the date of this Decison, what

steps the Respondent has taken to comply herewith.

Dated, Washington, D. C., July 3, 1968.

Frank W. McCulloch, Chairman

cn John H. Fanning, Member

Gerald A. Brown, . Member

(Seal) ' National Labor Relations Board.

. Jn the event that this Order is enforced by a decree of a

United States Court of Appeals, the words “a Decree of the United |

States Court of Appeals Enforeing am Order”” shall be substituted

for the words ‘‘a Decision and Order.””

29a

APPENDIX. Fr:

NOTICE TO ALL EMPLOYEES

|. . PURSUANT-TO

3 A DECISION AND ORDER 2

of the National Labor Relations Board, and in order to

effectuate the policies of the National Labor Relations Act,

as amended, we hereby notify our, employees that:

Following a trial in which the Company, the Union, and

the General Counsel of the National Labor Relations Board

participated and offered their evidence, the National Labor

Relations Board has found that we violated the law and

has ordered us to post this notice and to abide by what we

say in this notice.

WE WILL NOT interrogate our employees concerning

their union membership, activities, or sympathies, to

discourage their membership in or support of Ama.-

GAMATED CLOTHING WoRKERS OF AMERICA, AFL-CIO, or

any other labor organization, in a manner constituting

interfetence, restraint, or coercion within the meaning

of Section 8(a) (1).

WE WILL NOT threaten that the plant will close

down, or that you will lose your jobs, or that other

reprisals will be taken if you engage in union activities

or if a majority of the employees select a union to

represent them.

WE WILL NOT refuse to recognize and bargain col-

lectively with A taALGAMATED CLOTHING WoRKERS OF

America, AFL-Civ. |

WE WILL, upon request, bargain collectively with

AmarcaMaTep CLOTHING Workers or America, AF'L-

CIO, as the exclusive representative of our employees

in the following unit with respect to rates of pay,

30a

“wages, hours of work, and other terms and conditions

of employment, and, if an understanding is reached,

we will put it in writing and sign it.

' The bargaining unit is: A

All production and maintenance employees at the

McEwen Manufacturing Company plant at McEwen,

Tennessee, including the shipping clerk, the me-

chanics, the ticket and recut git] and the marker, but

-excluding the foreladies, cutting department fore-

' men all office clerical employees, and all guards, pro-

fessional employees and supervisors as defined jn

the Act. o eo

All our employees are free to become or remain, or to

refrain from becoming or remaining, members of any labor

iS)

- organization. . ve if ta

< McHiwen Manvracrvurine Company, as

| 3 (Employer)

. Dated........ vaca Ds icy oie aye oe nee wae ha as

| " (Represenfative) == (Title)

This notice must remain posted for 69 consecutive days

from the date of posting, and must not be altered, defaced,

or covered by any other material.

Employees may communicate directly with the Board’s

Regional Office, 746 Federal Office Building, 167. North

Main “Street, Memphis, Tennessee, 38103 (Tel. No. 534-

3161), if they have any questions concerning this notice or

compliance with its provisions. by

ERRATA.

The Board inadvertently omitted certain language from

the first full paragraph on page 15 of its Decision and

Order,’ as issued on July 3, 1968. ‘Accordingly, we hereby

corréct the said Decision as follows:

. 1172 NLRB No. 99.

‘

: ; eee ton

(1) On page 15, ‘line 7, immediately "ab sen-

tence beginning with the phrase “Accordingly, we con- /

clude . . .” ifsert: °

As we have shown, supra, after the Union made its

demand for recognition, Respondent engaged in un-

fair labor practice conduct designed to induce employ-

_ees to abandon their support of the Union. Such*con- *

"duct demonstrates that, in fact, Respondent refused. to

bargain and filed a representation petition not because _

_ it had a good faith doubt as to the majority status of

‘the Union, but in order to gain time within which to.

dissipate the Union’s majority and, thereby, to evatle

Se reper S its statutory obligation to recognize and bargain with

i the Union.‘*® We find, moreover, that’ “the unlawful

conduct made impossible thé holding of a free election , |

> and that, consequently, “the Board has no alternative. ~

_ but to look to signed authorization cards as the only

available proof of the choice employees would have —

made gine the employer" s unfair labor practices.”

Sy eet eine 2

aE ae oes el i te ah

rane

EE et aerate bes ates -

cmt 2 POT IS NS

(2) On page 15, at the end of the first full paragraph

delete the period and insert the “rend hor unlawful

reasons.””

(3) vMdda the following new footnotes 40 and 41 on page

15, and renumber the existing footnote 40 on page 16 as~

footnote 42: A

a“ ’

' Dated, Washington, D. C., August 15, 1968

‘By direction of the Board: :

aaa a _- George A. Leet, —

oe ees | Associate Executive Secretary.

Tae C ;

40Joy Silk Mills, supra. ‘

41Bryant Chucking Grinder Co., 160 NLRB 1526, 1530,

‘enfd. 389 F. 2d 565 (C.A. 2), cert. denied US. , 88

S. Ct. 2055; New England Liquor. Sales Co., Inc., 157 NLRB

153, 164,"

32a

TRIAL EXAMINER'S DECISION. _>

Statement of the Case.

Gorruicn, Trial Examiner: On June 15, 1966, a petition

for an election was filed by McEwen Manufacturing Com-

pany sometimes referred to herein as McEwen. On July 8,

1966, a Stipulation for Certification Upon Consent Agree-

ment was executed by the Amalgamated Clothing Workers

of America, AFL-CIO, herein referred to as the Union, and

McEwen. On July 27, 1966, a Board-conducted election

was held among McEwen’s employees; 60 ballots were cast

for the’Union, 96 ballots were cast against the Union, and 1

ballot was challenged. On August 3, 1966, objections to

conduct affecting the results of the election were filed by

the Union and on September 2, 1966, a report on objections

was issued by the Regional Director for Region 26 recom-

mending that the election be set aside and that a new elec-

tion be directed. McEwen and the Union filed timely ex-

ceptions with the Board to the report on objections. On

November 18, 1966, the Board issued a Decision and Order

setting aside the election conducted on July 27, 1966, and.

directing a second election.

In its Decision, Order, and Direction of Second Elec-

- tion, the Board, for the reasons set forth in the Regional

Director’s report, adopted the Regional Director’s findings.

- and recommendations.'

On November 10, 1966, the Union filed an unfair labor

practice charge and on December 7, 1966, it filed--a_first

amended charge. Upon these charges the General Counsel

for the National Labor Relations Board (herein called the |

Board) on behalf of the Board by the Regional Director

1The Regional Director, agyaong other things, found ‘‘that by

its etter of July 14sor 15 and the speech of Pedigo on July 26, the

Eni@toyer created an atmosphere of fear in which the free ex-

pression of choice of the employees was rendered impossible.’’

TRO we

for Region 26 on December 30, 1966, issued a complaint and

notice of hearing naming McEwen Manufacturing Com-

pany and Washington Industries, Inc., as the Respondents.

In the complaint, it was alleged that the Respondents had

engaged in and were engaging in unfair labor practices

affecting commerce within the meaning of Section 8(a) (1)

and (5) of the National Labor Relations Act, as amended,

herein called the Act.2 The Respondents, by answers’

timely filed, denied that they had engaged in or were engag-

ing in the unfair labor practices alleged.

Hearing was held at Waverly, Tennessee, on February 7

through 10, and 13 through 17, 1967,,and at Nashville, -

Tennessee, on April 7, 1967. At the hearing each party was

afforded a full opportunity to be heard, to call, to examine

and cross-examine witnesses, to argue orally upon the

record, to submit proposed findings of fact and conclusions

of law, and to file briefs. All briefs have been reviewed

and considered by the Trial Examiner. ’

Issues submitted to the Trial Examiner were:

1. . Whether Respondents Washington Industries, Tne.,

and MeEwen Manufacturing Company are and have been a

single integrated enterprise with Respondent MeKwen

Manufacturing Company being an affiliate of Washington

Industries, Inc., with common ownership and management

and labor relations policy.

2. Whether Respondents violated: Section 8(a)(1) of

the Act by: Promulgating and maintaining on the bulletin

board at the McEwen plant a no-solicitation rule; inter-

~—yogating its employees; threatening employees with’ loss of

jobs, plant closure, and less desirable working conditions;

_ and stressing to employees the futility of selecting the

Union as their collective-bargaining representative.

“Among other things it was alleged in the complaint that the

Respondents violated the Act by Pedigo’s speech of July 26, 1966,

and the letter of July 14, 1966, referred to in footnote 1.

SON ORES nes eet GLE ERR Srayetn poer Deanne

ret *

RR EY ARTE a oe

34a

3. Whether Respondents violated Section 8(a)(5) of -

the Act by refusing to bargain with the Union after the

Union had been designated by a majority of Respondents’

employees in an appropriate unit as their representative

for the purposes of collective bargaining.

- Upon the whole record and from his observation of the

witnesses, the Trial Examiner makes the following:

Findings of Fact and Conclusions.

I. The Business of the Respondents.

Respondent, McEwen Manufacturing Company, is now

and has been at all times material herein a Tennessee cor-

poration engaged in the manufacture of overalls and

dungarees at its plant located at McEwen, Tennessee.

During the past 12 months Respondent, McEwen Manu-

facturing Company, in the course and conduct of its busi-

ness operations, purchased and recejved at its McEwen,

Tennessee, location materials and supplies valued in excess

of $50,000 directly from points located outside the State of

Tennessee, and during the same period manufactured, sold,

and shipped overalls and dungarees valued in excess of

$50,000 from its McEwen location directly to points outside

the State of Tennessee.

Albert Pedigo is the president of Respondent McEwen

Manufacturing Company, R. Hicks Clark is the vice presi-

dent, and Paul A. Hargis is the secretary-treasurer. These

three persons compose the board of directors. MceEwen’s

sole customer is Washington Manufacturing Company, with

which it has a cut-and-make contract. Washington Manu-

facturing Company, a wholesaler and jobber, furnishes the

materials which are used for the manufactured garment for

which it is charged on a cost-plus basis. Pedigo holds pre-

ferred stock in Washington Manufacturing Company. Re-

spondent Washington Industries, Inc., owns 8914 percent

of the voting stock of Washington Minntacterine Company

and all the voting stock of First National Company, of

30a

which McEwen Manufacturing Company is a wholly owned

subsidiary. First National Company and Washington In-

dustries, Inc., have common directors and officers. Hargis

and Clark are respectively the treasurer and secretary of

Washington Industries, Inc. Both are on the board of

directors. Other members of the board of directors of

Washington Industries, Inc., are G. L. Comer, chairman of

the board, T. W. Comer, president, E. H. Hatcher, vice

president, and B. Hatfield, vice president. Hargis’ office is

located in the 200 block of Second Avenue in Nashville,

Tennessee, where also are located the offices of other officers

and members of the board of directors of First National

Company and Washington Industries, Inc. By reason of

this proximity Hargis was frequently in the association

with the officers and directors of First National Company

and Washington Industries, Inc. On occasion, affairs at

McEwen were discussed which included the advent of the

Union. However, Hargis testified that he. sought no advice

in respect to how McEwen should treat with the Union

although he kept several of the directors of Washington

Industries, Inc., up to date on what was happening at

McEwen. :

Washington Industries, Inc., engages in no activities

other than.the ownership of stock.

Thomas M: Robertson is the plant manager at the Mc-

Ewen plant and supervises its day-to-day operations.

Pedigo, who resides at Scottsville, Kentucky, visits the

McEwen plant 2 to 4 hours a week. Pedigo is the highest

executive officer of McEwen.* There is no direct evidence

that Washington Industries, Inc., which exists as a holding

company only, administered or formulated “a common labor

relations policy affecting the employees” of McEwen Manu-

3Hle described his functions, ‘‘I’m a consultant with Mr.

Robertson. I try to help him down there.”’

EP ORR TUNER

PETE MTT s Tey)

pani ial ee ail a 1

36a

facturing Company. On the other hand, Hargis testified

that McEwen’s board of directors sought to solve the

problems of the corporation by themselves.

What was stated by the Board in M. Lowenstein & Sons,

ine 150 NLRB 737, footnote 2, is apposite:

Lyman, doing business in South Carolina, is one of the

wholly owned subsidiaries of Lowenstein, which is

_ located in New York. Its chief executive officer is a

vice president and the general manager who holds no

positions with Lowenstein. There is no common board

of directors or integration of operations. They do not

have a centrally controlled or common labor relations

policy and Lowenstein is not involved in the day-to-day

operations of Lyman or otherwise involved in setting

wages, hours, working conditions, or any other terms

of employment of Lyman’s employees, nor was it in-

volved in any way in the commission of the unfair

lakpr practices found herein. Upon the entire record,

we find merit in Respondents’ exception and shall dis-

miss the complaint as to Lowenstein.

Accordingly, the motion to dismiss of Washington In-

dustries, Inc., is granted und the complaint is dismissed as

to the Respondent, Washirgton Industries, Inc.

The Respondent, McEwen Manufacturing. Company,

admits and the Trial Examiner finds that at all times ma-

terial herein Washington Industries, Inc., has been and is an

employer engaged in commerce within the meaning of Sec-

tion'2(6) and (7) of the Act.

II. The Labor Organization Involved.

Amalgamated Clothing Workers of America, AFL-CIO,

is a labor organization within the meaning of Section 2(5)

of the Act,

37a

Ill. The Unfair Labor Practices.

A. The Alleged Violations of Section 8(a)(1) of

the Act.

1. The no-solicitation rule posted on May 20, 1966.

On May 20, 1966, Plant Manager Thomas H. Robertson

posted the following rule:

There will be no solicitation of any kind, on the plant

premises by an employee during working hours.

There will be no distribution of any literature, notices,

‘ eards or paper of any kind in and about the work areas

of any employee at any time. Non-employees shall not

-eome upon or be upon the plant premises for the pur-

pose of making solicitations or distributing literature,

notices, cards or papcr of any kind. r

Exceptions will be allowed to the above rules if ap-

proved in writing by the plant superintendent.

Robertson testified that sometime during the second .

week of May 1966, he received a telephone call from an em-

ployee advising him that union activity was occurring.

Thereafter, he noticed that female employees frequented the

restroom more often than they had in the past and were

journeying in groups. He also observed increased visiting

at the employees’ machines. .According to Robertson, he

also began to notice that “the quality of the work wasn’t

quite as it was.” Because of the situation be observed,

_ Robertson testified that he caused to be posted the rule set

out above.

* The General Counsel makes no claim that the rule is

illegal per se. His claim is that it was published “during

the union’s organizational campaign in order to discourage

union membership activities.”

The Supreme Court has said in NV.L.R.B. v. United Steel-

workers of America ( Nutone Inc.), 357 U.S. 357, 361, “Em-—

eth ars

38a

ployer rules prohibiting organizational solicitation are not

in and of thefnselves violative of the Act, for they may

duly serve production, order and discipline.” Here the ;

uncontradicted evidence establishes that the rule was posted

in response to interference with production and a diminn-

tion of the quality of work performed. The vahdity of a

rule promulgated and posted under such cireumstances is X ;

not impaired because a secondary effect might result im the }

impeding of union organization, for such result to some iE ?

degree must always follow from any valid rule. The

no-solicitation rule being valid on its face could be lawfully.

posted where union activities as here were interfering with

production and the quality of the employees’ work. Mone

such circumstances secondary effects resulting im the pre-

vention .of unrestrained union activities is i nature,

damnum absque injuria.*

‘

2. President Pedigo’s speeches of May 24, June 15, and

July 26, 1966, and the letter of June 14, 1966

On May 24, June 15, and July 26,1966, President Pedigo

addressed Respondent McEwen’s employees on ‘company

time and property. In his May 24 speech among other

- things Pedigo advised “. . “f this Company does not want

a union, will fight the union coming in this plant.” Again

in his June 15 speech Pedigo said,“. . . I repeat, not only

is this Company opposed to the Union, but we will do every-

thing that can be done under and within the law to keep a.

Union out of this plant.” Pedigo ended his July 26 speech

*Ward Manufacturing, Inc., 152 NLRB 1270, cited by the

General Counsel, is distinguishable from the instant ease im that

in such case there was an ‘‘absence of any evidence that any dis-

ruption had occurred.’’ In the other case cited by the General

> Counsel, Quality Production Company, 162 NLRB No. 141, the

Trial Examiner found that ‘‘no particular incident [other than

union activity] precipitated the promulgation of the rules.”” In

‘ -the instant. case it is uncontradicted that an interference with

production was occurring.

with “Again, with all the sincerity that I have, I ask you

to vote <NOQ’.”

A letter signed by Pedigo aaa Manager Robertson was

mailed to employees on July 14, 1966, in which, among other

things, appeared, “We ask you to help yourselves and at the

same time help us by voting ‘NO’ when you mark your

secret ballot on July 27. »!

In reviewing Pedigo’s speech of July 26 and the letter of |

July 14 the ow ‘Director in his report on objections

ramsey > }

| _ After careful reading and consideration of the letter

‘and speech it is found that the main theme of the Em-

ployer’s campaign was the futility of selecting the

Union as the collective bargaining representative, and

~ the dire consequences which might be expected: Thus,

the opening thrust of the letter voices the Employers

_- opinion that the Union would not help the employees

“er the Company and expresses the firm belief “.

that the Union will hurt you and it could destroy us—

that is just how serious this matter is.” (Underlining

supplied.)

| Both appeals to the employees einphasined the

- Union’s inability to do more than make promises and

stress the fact that only the Emovloyer could grant

benefits. These appeals were so worded as to convey

the message that the Union’s request would fall on deaf

ears, and only by striking could the Union’s attempt

to make good on it’s promises. Having impressed upon

the employees the idea that a strike was probable

rather than just a possibility if the Union were selected,

the Employer raised the spectre of plant closing, with

pointed reference to the recent closing of a plant in a

nearby city after organization by the Union. The refer-

ence to the company’s intent to renew its lease con-

tained a proviso which warned the employees that the

a an

ee ee,

1 EAP RUSE Ee petra sea

PEL, EDS PTE LT IR PUTS ST AS Site

40a

Union might make conditions such that the Company

would not feel justified in renewing its lease, but failed

to indicate what type of conditions would so influence

. the decision. Under these cireumstances it is found the

/ latter intended to, and did, convey the message that

the mere selection of the Union would eause the Em-

ployer to decide not to renew its lease and to discon-

tinue its operation. _ :

In view of the foregoing, it is found that by its letter

of July 14 or 15 and the speech of Pedigo on July 46,

the Employer created an atmosphere of fear in which

the free expression of choice of the employees was ren-

dered impossible, and merit is found to this objection.

_The Board adopted the Regional Director’s findings and

recommendations in these respects “for the reasons setforth -

in his report” with the footnote, “Member Fanning would _

rely only on that part of the preeleetion statements wherein

the Employer in effect threatened not to renew its lease and

to discontinue its operations in the event the Union won |

the election.” ) :

‘The speech and letter were both before the Board in the

representation case. From their the Board drew

certain factual and legal conelusi In this respect the

speech and letter were fully considered and litigated. More-

over the same parties were before the Board in the repre-

sentation case. As to matters litigated im a prior represen-

- tation case, “it is blished Board policy, in the absence

of newly discovered or previously umavailable evidence not

to relitigate issues which were or could have been litigated

in a prior related representation proceeding.” See Holly-

wood Brands, Inc., 163 NLRB No. 107, and cases therein

cited. Accordingly the Trial Examiner deems himself

bound by the findings and legal conelusions of the Board

in the prior related representation ease.

4la . ron

The findings and conclusions of the Board which sus-

. tained the objections to the election likewise sustain, in the

"light of the record as a whole, a finding that Respondent

McEwen also violated Section 8(a)(1) of the Act by

Pedigo’s speech of July 26, 1966, and the letter of July 15,

1966. gst repanoes ieee

‘ t DY :

3. The alleged misconduct of Plant Manager Thomas M.

Robertson, Supervisor Edna: Hargis, and Supervisor

Ova Lee Parchman |

Thomas M. Robertson: Thomas M. Robertson had been —

the plant manager of Respondent McEwen Manufacturing

Company for over 15 years. He lived next door to the plant —

in the city of McEwen, Tennessee, which had a population

of about one thousand persons. McEwen was the principal

industry in the city. He had been ‘elected mayor for two

terms at McEwen and also served on the school board.

McEwen commenced operations in 1947.

About the segond week in May 1966, one of the McEwen.

employees called Robertson by telephone at his home and

told him there was some union activity going on. After: °

this telephone call, Robertson observed that larger groups -

of employees were going to the restroom, more time was

being spent in talking at machines and the quality of the

work was not as good as it had been. |

Robertson discussed this situation with Pedigo, and

recommended that the no-solicitation notice above referred

to be posted. The notice was posted on May 20, 1966.

According to Robertson, he became concerned and began

thereafter to check with the employees.°

‘Robertson testified :

So.I began to check with the employees and ask them if—

just casually—if they were getting along all right; were they

having trouble, and so forth. About if the union activity was

—some of them I told I heard the union was being organized,

or something to that effect. So I just would ask them if all

_ (Footnote continued on following page.)

} ae 42a 7

On May 24, 1966, Pedigo See the employees. After

Pedigo made this speech Robertson talked to more and more

of the employees about the tion situation. Robertson ad-—”

vised these employees that the employer “definitely did not

want any union” and that the employer “could do as good .

for them as the union could.” From these conversations*®

Robertson said he received the response _ that “everybody

just seemed perfectly happy.” 3

Among the employees whom Robertson visited was Zella

May Tidwell with whom ‘he conversed around June 13, 1966.

Robertson came to her mathine and told her he wanted to

_talk to her about the union situation, saying that she knew

more about unions because she had worked in union fac-

tories and knew a little more about the situation than

others. He further said that some of the employees had

worked in the factory for several years and that had been

the only job they had done. He told her that unions in

bigger factories were all right where they didn’t see their

supervisors every day but with small factories where the

supervisors were with the employees every day any diffi-

culty could be ironed out that came up. He told her that

he had done her several favors in the past and he thought

she ought to do him one in return. He asked her if there

was going to be an election. She told him she did not know,

-waseall right; if they was happy on their jobs; if they’re

satisfied like they was working. I didn’t get no response, so

everything was all right. ; sah

a ®Roberts6n ‘testified : : oe

Well, usually I would go up to them and of course kno

ing them like I did, I would speak to them and chat with th :

- and maybe tell them I would like to talk to them about the

union. It was after the speech; it was definite we didn’t want

any union, that was sure. . . . We definitely didn’t want

any union and of course they understood that, I was sure of

that. And I would tell them that we thought we could do as

good for them as the union could, and I certainly wanted

them to make up their minds and I wanted them to vote like

they thought was best; but I hoped they would vote against

the union.

43a | ol

that she had not been notified that there would be one and

she didn’t know whether there would or would not be an -

election. He told her then to think the situation over and

he hoped that when it came to an election she would vote

“No.” He further told her that ~whichever way it went,

and in any event, he wanted her to know he was her friend.

He told her that the Company would not stand for the

Union and that “if the union come in [they] might lose

[their] factory.” ep

While Robertson denied the hotentte credited facts he

testified that” he told Tidwell that he “didn’t want any

union” and that he thought that “the Company would do

_ better for the employees than the union could do.”

Robertson also conversed with employee Ellen Elliott at

her machine on June 13, 1966. Robertson said that he heard

that the Union claimed that a majority of the employees

had signed union cards. He said that it would be “put to

a vote.” He further said he would “like” for her to “think

it over” and “try to see his side” and that if.only the Wash- ,

ington, D. C., company was involved they couid. close the

plant, but since they had contracts with other companies,

they would not let them close. The Union, however, could

force them out on a strike. He also told her that however

she voted, they had always been friends and would still

remain friends, and if she needed her check early, he would

see if he couldn’t get it to her at any time.

Robertson likewise talked- with employee Nancy Elliott®

on June 13, 1966. Elliott’s testimony in respect to the con-

versation (which is credited) is as follows:

Having earefully

in view of the fact that statements attributed to Robertson follaw

a definite pattern, avd tend to contribute to’ McEwen’s efforts to

defeat the Union, gn effort which Robertson was sponsoring, the

Trial Examiner Mas credited witnesses whose testimony conflicts

with that of Robertson.

8In evaluating Nancy Elliott’s testimony the Trial Examiner

has taken into consideration that her direct testimony was a

(Footnote continued on following page.)

PON RT P OCT

bserved the witnesses while testifying and

erat tory Tae

THES Me

Cain

44a

Mr. Robertson, he said, “WN ancy, I would like to talk

to you about the union.” He said that if the union

comes in there is liable to be trouble and you couldn’t

say you hadn’t been warned. He said, “although you

don’t remember it, but a union has been around before

and all it caused was trouble. The company has been

good to you and we know you want-to work, and yon

will work because the company has plenty of work,

The only way you wouldn’t get to work would be the

union came in and the plant would go out of business.”

He said, “Of course if it would have been up to

Washington Manufacturing Company, that they would

have closed down at the first whisper of a-union, but

at the present we have contracts with Red Ball and Big

Buck and they won’t let us élose.” He said, “It is easy

* for anyone to.sign a card, but'the voting is what counts

so think it over and vote no.” F

Robertson also visited with* employee Bonnie Sue

(Brown) Weatherby at her machine.* Robertson said that

he was sure she had “heard of the plant closing” but that

this was “not true”; that the “only way the plant would

close” was for the “Union to come in and pull a strike.” He

said that if the’ “Union came in it would not only mean

that the people in the plant would lose their joks, but he

would lose his also.” He further remarked that he had his

home in McEwen and that Weatherly was young and could

“get a job somewhere else, but there was older people in

the plant who couldn’t do this.”

memorization of her affidavit given to a Board agent. At the time

she gave her affidavit she had access to notes which she had pre-

pared immediately after the conversation with Robertson. These

notes were made available to the Respondent’s counsel at the hear-

ing but were not used to impeach the testimony of Elliott.

*Weatherly, a sister of Nancy ENiott, also*memorized her

affidavit. The Trial Examiner has n nsidered that such fact

» reflects adversely. upon the eétedibility of Weatherly.

45a |

Weatherly asked Robertson whether the majority of the

employees had signed cards. He answered that it was true.

Robertson further commented that he had been “good” to

. Weatherly and that when she asked him for another job he

gave it to her.

A few days after Eunice Little signed her union card,”

Robertson approached her at her machine. He asked her

whether she had signed a union card. She answered in the

affirmative. Robertson then said,“. . . we don’t have any

union here; we don’t want no union here and if it comes to

a union, the company will fight it. . . . it would come

to a law suit and it would be a long drawn out affair and

we would be out of work because of it.” |

Supervisor Edna Hargis: About 20 employees worked

under Supervisor Hargis, one of whom was Gloria Tidwell.

Hargis held two conversations with Tidwell at her machine

on June 18, 1966. During the first conversation Hargis

asked Tidwell what she thought of the Union and Tidwell

told her she wasn’t against it. Hargis then asked her what

was the one thing the Union could do for them and Tidwell

answered that she thought the Union was all right.

On the afternoon of the same day at or about 1:15 p.m. t

Hargis again came to Tidwell’s machine and said she was +40

talking to Tidwell as a friend. She asked Tidwell if she

had read the letter that the Company sent to all of its em-

ployees. Tidwell told her that she had read the letter.

Hargis said that she had worked for the Company for sev-

eral years and that “she knew the company wouldn’t stand

Eunice Little signed her union authorization card on May

11, 1966. .

11Robertson admitted that he had talked to Little about the

Union. He testified :

Well, I told Eunice that it looked like they were going to

have an election for a union—a yrtion election possibly—and I

wanted to talk to her a minuté about it; that when the time |. .

comes to vote I wanted her to make up her mind; and also I :

told her that I thought that we, the company—I. might have

said we—could do as much for her as the union could do.

YR SORTER HRT a

Peer oe 1) ee

5 nite Me ve ia Mii ‘paride ARIA wees

Di. .

46a

_to have a union come in.” Hargis further said that where

the employees had steady work now there would be less

chance of having steady working conditions if the Union

came in and that if the Union called them out on strike,

there would be a “possibility” that the girls wouldn’t have

their jobs when they came back. Hargis suggested that

Tidwell think it over and think over what the letter said.

Hargis then asked whether there was anything the Union

could do for the employees. Tidwell responded that “there

were several things it could do for us.” Hargis repeated

- that “the Company wouldn’t stand to have a union.”?2

Supervisor Ova Lee Parchman: Supervisor Parchman

has worked for McEwen for 10 or 12 years and presently

supervises approximately 25 employees. Employee Sarah

King worked for her with whom she discussed the Union

on June 3, 10, and 17, 1966.73

The first conversation occurred shortly after Pedigo’s

speech of May 24. In the course of the first conversation

Parchman asked King how she felt about Pedigo’s speech.

King asked what she meant. Parchman replied, “The

Union.” King responded, “I am for it 100%.” Parchman

said, “Oh Ella . . . I thought you were otherwise.” Im-

?Hargis denied conversing with Tidwell about the Union. She

testified that part of her job was to check the employees’ work

daily for which purpose she visited the-employees’ machines.

According to Hargis during the 20 years she was supervisor she

never talked to employees while ‘‘around their machines . . .

about matters not relating to work.’’ The implausibility of such

circumstance occurring, as well as the demeanor of Hargis while

testifying, persuades the Trial Examiner that Hargis was not a

credible witness.

*8Parchman denied the testimony of King which is credited.

In view of Robertson’s extensive and open contacts with em-

ployees during the union organizational campaign, which were

readily observable, and the thrust of the MceBwen’s antiunion

campaign, it seems likely that Parchman would have conversed

with King and made the remarks attributed to her. For this

reason the Trial Examiner has resolved credibility in favor of

witness King. Demeanor has been evaluated,

47a

mediately thereafter Parchman was seen talking to Man-

ager Robertson.

The second conversation took place at the banding ma-

chine. Parchman said she wished the “girls would get to

work,” to which King replied that she was working her

“tail off’; Parchman said she did not mean King, Parch-

man added, “Did you know that there won’t be any time

that we won’t have a plant here?” and that “any girl that

signed a union card should starve to death.” Parchman

also said that “in a little while [the plant] would be closed

just like the plant at Waverly” and that the plant had con-

tinued about as long as “we could have it.” p

The Trial Examiner finds that apropos of the en-

vironment created by the Respondent’s antiunion campaign,

the Respondent interfered with, restrained, and coerced

employees in the exercise of rights guaranteed by Section 7

of the Act and thereby violated Section 8(a)(1) as follows:

(a) Robertson unlawfully interrogated employees as to

whether “they were getting along alright” or “were having

trouble” and “if they were happy in their jobs—if: they’re

satisfied like they were working.” 3

(b)Robertson unlawfully impressed employees with the

futility of selecting the Union, to wit: “. . . we thought

we could do as good for them as the Union could.”

14The interrogations herein found to be unlawful, coming at

the beginning of a union organizational campaign among Mc-

Ewen’s employees, were clearly initiated in order that McEwen

could elicit important information most useful to it in formulat-

ing a program whereby it could draw its employees away from

union affection. Such interrogations which encroached upon privi-

ledged union matters served no legitimate employer purpose and

reasonably tended to restrain or interfere with employees in the

exercise of rights guaranteed by Section 7 of the Act. See Jeffer-

son Wire and Cable Corp., 159 NLRB No. 107.

15In The Trane Co., 137 NLRB 1506, 1510:

There is no more effective way to dissuade employees from

voting for a collective bargaining representative than to tell

(Footnote continued on following page.)

ore

Re eee Se eae ee eee

48a

self-organization when he mentioned to employee Zella May

Tidwell that he had done her favors in the past and he

thought she ought to do him one in return; Robertson un-

lawfully interrogated Tidwell as to whether there was

going to be an election; Robertson unlawfully threatened

plaut closing when he stated that “if the Union came in

[they] might lose [their] factory”; and Robertson unlaw-

fully impressed Tidwell with the futility of selecting a

union by his admitted statement that “the Company would

do better for the employees than the Union could.”

(d) Robertson created the impression of the promise

of a benefit in the light of his other remarks when he told

Ellen Elliott that if she needed her check early he would

see if he couldn’t get it to her at any time.

(e) Robertson threatened plant closing by asserting to

Nancy Elliott that the “only way you won’t get to work

would be if the Union came in and the plant would go out

of business.”

(f) Robertson unlawfully threatened employee Weath-

erly with loss of employment if the Union prevailed by

stating, in the context used, that if the Union prevailed

“people would lose their jobs” and he “would lose his also,”

and Robertson interfered with rights of self-organization

when he said to her that he had been “good” to her and .

that when she asked him for another job he had given it to —

her.

(g) Robertson unlawfully interrogated employee Little

as to whether she signed a union card; Robertson unlaw- |

fully threatened reprisal by asserting that if the Union”

them that their votes for such representative will avail them

nothing.

In N.L.R.B. v. Bailey Co., 180 F. 2d 278, 279 (C.A. 6):

An employer interferes with- the right of self-organiza-

tion when he emphasizes to his employees that there is no

necessity for a collective bargaining agent.

prevailed “it would come to a law suit” and that\employees

“would be out of work because of it.”

.< li \.

198 / 2

)

_(h) Supervisor Hargis unlawfully interrogated em- -

ployee Gloria Tidwell as to what she thought about the

Union gnd what the Union could do for the employees; -

‘Hargis impressed Tidwell with the futility of employees’

choosing the Union by the statement that the “eompany

wouldn’t stand to have a union come in” and that there |

- would be less chance of having steady working conditions

if the Union prevailed. |

(i) Supervisor Parchman unlawilly interrogated em-

ployee King as to how she felt about the Union. Parchman

unlawfully threatened reprisal when she stated that “in a

little while” the plant “would be closed” and girls who

signed union cards “should starve to death.”?®

B. The Alleged Violation of Section 8(a)(5) of

the Act.

1. The showing of interest.

On May 4 and 9, 1966, the Union held joint organiza-

tional meetings of McEwen and Waverly Garment Com-

pany, Inc., employees. Employees from both plants were

present. Cleron B. Smith, union area director, addressed

both meetings. Smith advised the employees present “to

hurry up and get people signed up.” Blank union author-

ization cards were given to the employees present and they

were instructed by Smith on how to solicit other employees.

McEwen employees were told to return any signed cards

obtained to McEwen employee Agnes Hooper. Some of the

employees signed authorization cards at the meetings.

Other authorizations were obtained by employee solicitors

pursuant to Smith’s instructions.

16Rach of the foregoing findings has not been considered in

isolation but have been weighed upon the basis of Respondent

McEwen’s entire course of conduct and evolved from the record as

a whole.

NG PKS

ees

ae a

SRI ROPERITS BMI ID eh

ere

PER ERR IT FEY BY

ya Retes

50a

There were 109 authorization ecards offered for the

purpose of proving that a majority of MeEwen’s eniployees

had designated and selected the Union as the exclusive

representative for the purpose of collective bargaining. Of

the 109 cards, 100 were admitted as seemingly valid eands

, 170n the face of the card appeared :

SAA AAT S SS BOO Oe OO OG Oi SS Oe ©

Date of Signing

Bs oes Os Pee Coy ieee Petes Cranes now employed by

Scpangheacaiaince aS Ake RR Pam ethene wc wae (Name of Company)

See SNS TRE OE Pirate OCH h Raa ( Loeation ) \

have voluntarily accepted membership in the AMALGA-

MATED CLOTHING WORKERS OF AMERICA (AFL-

CIO) and designate said Union as. my collective bargaining

agent in all matters pertaining to wages, hours amd other

conditions of employment. I hereby further subseribe to the

dues deduction provisions printed on the reverse side of this

a > : :

see ee ee wwe eee Se gmat eet ee nee Oe Is RD i IDA Ay Rig de hE We Me Oe dee tm Oe Om ace

Ui ‘(Phone No.) (Signer’s Home Address)

~ On the reverse side of the ecard appeared :

I hereby authorize my Employer (the Company named on'~

the reverse of this card) to deduct from my wages dues, that

may be due to the Union (the Union named on the reverse of

this card). This authority to make such. deduction shall be

irrevocable for the period of one year until the termination

date of the collective bargaining agreement _betweén my Em-

ployer and the Union, whichever oceurs sooner, and I agree

and direct that this authorization shall be automatically ne

-newed and shall be irrevocable for successive periods of ome

’ year each,and for the period of each succeeding collective

bargaining agreement beiween my Employer and the Union,

' whichevéf shall be shorter, wnless written notice is given’ by

me to my Employer and the Union not more than twenty (20)

days and not less than ten (10) days prior to the expiration

of each period of one year or of each collective bargaining

agreement between my Employer and the Union. whiehener

occurs sooner. If a new worker: this authorization becomes

effective at the end of my trial period. i Co

dla

for the purpose of establishing the Union’s alleged majority

status.'*

The parties stipulated that as of May 28, 1966, eligible

employees in the appropriate unit numbered 172. Thus, in

order. for the Union to establish a majority interest in the

appropriate unit, it was necessary, on May 28, 1966, to have

in its possessign valid authorization. cards numbering 87.

Accordingly, if 14 of the 100 cards: are invalid for the

purpose of establishing the Union’s majority, the Union’s

‘elaim as the representative for the purposes of collective

bargaining must fail.

The card of Margie James: James’ card was authenti-

eated by employee Weatherly who stated she saw James

sign the card. James was called as a witness by McEwen.

James testified without contradiction?’ that Weatherly said

18Cards of the following employees were excluded: Virginia

Tester, Kenneth Hollard, Erline Bledsoe, Pearlie Dominick, Fay

Branch, Lula Smith, Bessie Lou Capps, Martha Ann Craft, and

Nettie Boyd. 3

19May 28, 1966, was the date upon which McEwen received

the Union’s letter informing it that the Union -had been ‘‘desig-

nated by a majority of [McEwen’s] production and maintenance

employees at their collective bargaining representative.’’ The

letter ineluded the paragraph: :

We are prepared to prove our majority by submitting our |

anthorization eards to a mutually agreeable third person

provided that under no circumstances will the names of those

employees who signed cards be revealed. ‘We, therefore, re-

quest at this time an appointment to meet with you at your

earliest conveniepeé in order to commence collective bargain-

gZ witnesses called by the Respondent to rebutt

the prima fagte validity of the cards considered hereafter, and in

i @ probative value of the evidence of the General Coun-

ither the General Counsel nor the Charging Party called

ésses in rebuttal or explained their failure to call such wit-

although such witnesses appeared to have been available

for testimony, some of whom testified in behalf of the General

Counsel when he presented his case-in-chief.

In N.L.R.B. v. Ohio Calcium Co., 133 F. 2d 721, 727. (C.A. 6),

the court said:

(Footnote continued oa following page.)

te Charging Party, the Trial Examiner has considered >

SAPPORO TRY CORT TUN

AeA Phere MTS LARD ET MEP Lees oe:

ATE BE LIN AOE LO SENG EDEN RESID REL LY OPE TE GBC

SELES a tl EN ANE ITTV HELM TR ERE EP

Gott a

FUE TE RHO Nt

o2a

to her that “they had to have so mamy to sign the cards so

they_could have an election” and if she would sign the card

she “wouldn’t have t@ joim the union if [she] didn’t want

to.” James did not r¢ad the card.

From the foregoing testimony it appears that James

signed the card upon the oral representation that such card

would not be used for other tham election purposes. Such

a ‘finding is buttressed by the fact that the employee did

not read the card. Accordingly the Mrial Examiner finds

that James’ card cannot be counted toward establishing the

Majority status of the Union See Jefferson Wire and

_ Cable Corp., 159 NLRB No. 107, footnote 3 and cases

therein cited. .

The card of Hazel Curtis: Curtis testified (without

contradiction) in respect to what employee Pearl Jones

said to her, “She asked me if I would sign a union card and

I asked her what ‘ae card was for and she said, ‘For a |

union election.’” Curtis further testified that she had been

told of no other purpose for sigmimg the card. Curtis did

- not read the card.

For the same reasons expressed im connection with em-

ployee James’ card, the Trial Examimer finds that Curtis’

card cannot be counted toward establishing the majority

status of the Union. |

The card of Margaret Nell Frazee: Frazee’s card was

authenticated by employee Pearl Jomes who testified that

she saw Frazee sign the card. Frazee, called as a witness

for McEwen, testified without ecoutradiction that Jones

said“. . : they had to have a majority before they could

| The well-known rule is applicable tm Abel's testimony that

when a party produces such evidemee as it is in his power to

produce, its probative effect is emhameed by the silence of his ©

opponent and also where the party om whom rests the burden

of evidence as to a particular fact has the evidence within his

control and withholds it, the presumption is that such evi-

dence is against his interest and insistemce.

33a

have an election and if they didn’t get that, they couldn’t.

have an election.” Frazee did not read the card.

For the same reasons expressed in connection with em- q

ployee James’ card the Trial Examiner finds that Frazee’s q

eard cannot be counted toward establishing the majority {

status of the Union. |

The card of Ruth Pittman: Pittman’s card was authen- :

_ tieated by employee Agnes Hooper who stated she saw -

Pittman sign the card. Pittman, called as a witness for |

McEwen, testified without contradiction that she signed the

eard and gave it to Hooper without reading it. She said :

that Pearl Jones, Bonnie Brown (Weatherly), Agnes &§

Hooper, and Christine Forrester had “all said it was to be .

—so we could have an election.” Testifying specifically

concerning her conversation with Hooper she testified,

“ . . she just asked me to sign and told me they wanted

to hold an election—so they could get enough to hold an

election.” '~

/For the same reasons expressed in connection with em-

ployee James’ card the Trial Examiner finds that Pittman’s

ye eard cannot be counted toward establishing the majority

status of the Union.

The card of Margie Adams: Adams, called as a witness

for McEwen, testified without contradiction that prior to

signing the card she had a discussion with Bonnie Brown

[Weatherly] who had asked her to sign the card. Brown

said that the purpose of the card “was to get an election;

to get enough cards for an | election. ” Adams did not read

the card. 7

For the same reason expressed in connection with em-

ployee James’ card the Trial Examiner finds that Adams’ ;

card cannot be counted toward establishing the majority =

. status of the Union.

The card of Dorothy Parchman: Pisa as a wit-

ness for McEwen, testified without contradiction that at

the time she was erer the card by employee Eunice May-

FR ee

54a age

bury, Maybury said “it was to get so many cards signed for

an election of the Union.” Parchman did not read the

card. Parchman testified, “I just sat with her when she

filled it out and then I signed it.”

For the same reasons expressed in connection with

employee James’ card the Trial Examiner finds that Parch-

man’s card cannot be counted toward establishing the

majority status of the Union.

The card of Blanche White: White, as a witness for

McEwen, testified without contradiction that she signed

and dated the card given to her by employee Hettie Rye

but did not read it. At the time Rye told her that “they had

to have so many before the election. . . .” Rye also said

that she “could vote any way [she] wanted to vote when

the elections came in.” ;

For the same reasons expressed in connection with em-

ployee James’ card the Trial Examiner finds that White’s

card cannot be counted toward establishing the majority

a status of the Union. Leet, :

The card of Pearlene Brooks: Brooks, as a witness for

McEwen, testified without contradiction that Earline

ip Bailey gave her the card and said that “it was to show

; that we might be interested in the Union.” Brooks did not

3 read the card. ne , ’

. In view of the fact that Brooks did not read the card it

Fe may not be inferred from the representation of employee

E Bailey that Brooks signed the card for the purpose set

iE forth on the card. It would appear, therefore, that the

General Counsel has not sustained his burden of proving |

that the card was signed for the purpose of designating the

Union as Brooks’ bargaining agent. The Trial Examiner

; finds that Brooks’ card cannot be counted toward establish-

ing the majority status of the Union.

L The card of Irene Buchanan: Buchanan’s card was

authenticated by Agnes Hooper who testified that she saw

55a

Buchanan sign the card. Buchanan, a8 a witness for Mc-

Ewen, testified without.contradiction that Hooper said to

her when she solicited the card that “it was to get‘enough

cards to hold an election.” Buchanan testified that she

read the card and observed the language on the back which

indicated that she was signing a checkoff of dues for the

Union. Whereupon, she asked Hooper whether she would

“automatically be a member of the Union” if she signed

the card. Hooper replied “No, it was just to get enough

for an election.”

From the foregoing testimony, it follows that Buchanan

signed the card upon the representation that it would not.

be used other than for election purposes. The Trial Ex-

aminer finds that Buchanan’s card cannot be counted to-

ward establishing the majority status of the Union:

The card of Lemuel L. Palk: Ellen Betty Elliott testi-

fied that she gave Palk a blank authorization card. Later

he told her it was in the pocket of his car. Elliott picked

up the card out of the pocket of the car. At the time a

signature was on the card. Elliott inserted the name of

McEwen and the word “bundleboy.” Elliott did not see the

card signed. Palk was not working for the employer at the

time of the hearing. His absence as a witness ‘vas not ac-

counted for. The Trial Examiner is of the opinion that

the General Counsel has not submitted sufficient proof to

establish the authenticity of Palk’s alleged signature by a

preponderence of the evidence. The Trial Examiner finds

that Palk’s card cannot be counted for the purpose of

establishing the majority status of the Union.

The card of Eldton Bishop: Agnes Hooper testified that

she witnessed the execution of Bishop’s card on May. 11,

1966. The printed name Eldton Bishop appears on the

card over the words “Print your full name here” and

opposite the word “Signed.” Hooper testified that she

printed the name Eldton Bishop over the words “Print

your full name here.” Bishop was not. called to verify his

Ca Wart 5 ia

ebeere

YEP IONE, PIO ORATOR 5

A APPR LTO OST BEERS I

ee Ge

= ¢

alleged printed signature.- Bishop’s Form W-4 (Em-

ployee’s Withholding Exemption Certificate) signed April

26, 1966, shows Bishop’s signature signed in script as “Roy

-Eldton Bishop.” There is no visible similarity between

the printed signature attributed to Bishop and the seript

signature appearing on the Form W-4.

Since Bishop’s alleged signature on the card does not

appear to have been written in the manner in which he

customarily signed documents connected with his employ-

ment it is the opinion of the Trial Examiner that the Gen-

eral Counsel has not submitted sufficient proof to establish

the authenticity of Bishop’s alleged card by a preponder-

ance of the evidence. The Trial Examiner finds that

Bishop’s card may not be counted for the purpose of estab-

lishing the majority status of the Union.

The card of Norma Jean Black: Employee Carolyn

Betty testified that she gave a blank authorization card to

employee Black who returned it to her with a printed

signature thereon on May 10, 1966. Betty did not see

Black execute the card. Black has not been employed by

McEwen since July 15, 1966, Black was not called for

testimony. Black’s Form W-4 reveals that she signed her

name in script. The Trial Examiner is unable to discern

any similarity between the printed signature attributed to

Black and the script signature appearing in the Form W-4.

Since Black’s alleged signature on the card was not

verified by Black or a person who witnessed the execution

of the signature and does not appear to be written in the

manner in which Black customarily signed documents

connected with her employment, it is the opinion of the

Trial Examiner that the General Counsel has not submitted

sufficient proof to establish the authenticity of Black's

alleged card by a preponderance of the evidence. The

Trial Examiner finds that Black’s card can not be counted

for the purpose of establishing the majority status of, the

Union.

| erie

57a

The card of William D. Shields: Agnes Hooper testi-

fied that she witnessed the execution of the signature,

William D. Shields, on a union authorization ecard on May

10, 1966. No employee by the name of William D. Shields

was listed on McEwen’s payroll of May 28, 1966. On the

payroll appears a “Billy Shields” and a “Bobbie Shields.”

A Form W-4 shows the name “Billy Shields” at the top

and “Billy D. Shields” opposite the word “Signed.” Billy

Shields left the employ of McEwen during the week ending

June 6, 1966. William D. Shields was not called for testi-

mony. The record is barren of any proof that the same

person who signed the Form W-4 also signed the card.

Under these circumstances the Trial Examiner is of the

opinion that the General Counsel has not submitted suf-

ficient evidence to establish by a preponderance of the evi-

dence that Billy Shields whose name appears on the May

28, 1966, payroll is the same person who signed William D.

Shields on the card. The Trial Examiner finds that Shields’

card may not be counted for the purpose of establishing

the majority status of the Union.

The card of Ruby Nell Christian: As a witness for

McEwen, Christian verified her signature on the card and

testified that her signature was the only entry she made on’

the card. Christian’s signature is’ in pencil; all other

entries on the card are in ink.

_ Christian testified that to the best of her recollection the

card was signed about the middle of June, just before the

vacation period. Hooper was sitting next to Christian in

an automobile at the time she signed the card. Christian

said Hooper had been “hounding” her everyday to get her

to sign the card and that she signed it so that Hooper

would “hush.” Hooper was not called to contradict the

testimony of Christian.”

"On direct examination Hooper was handed a number of

ecards including Christian’s card and was asked whether they were

(Footnote continued on following page.)

—-

58a | .

Under these circumstances the Trial Examiner is of

the opinion that the General Counsel has not submitted

sufficient evidence to establish by a preponderance of the

evidence that Christian signed her card prior to May 28,

1966. The Trial Examiner finds that Christian’s card can

not be counted for the purpose of ectablishing the majority

status of the Union as of May 28, 1966. |

Thus it appears that.on May 28, 1966, the Union had

not been designated or selected by the majority of Me-

Ewen’s employees in an appropriate unit as the exclusive

representative for the purposes of collective bargaining

within the meaning of Section 9(a) of the Act. Accord-

ingly those allegations in the complaint charging a viola-

tion of Section 8(a)(5) of the Act are dismissed.

IV. The Effect of the Unfair Labor Practices

. Upon Commerce.

The activities of the Respondent set forth in section III,

above, occurring in connection with its operations set forth

in section I, above, have a close, intimate, and substantial

relation to trade, traffic, and commerce among the several

States and tend to lead to labor disputes burdening and

obstructing commerce and the free flow of commerce.

V. The Remedy. |

It having been found that the Respondent has engaged

in certain unfair labor practices, it is recommended that it

cease and desist therefrom and take certain affirmative

action designed to effectuate the policies of the Act.

Furthermore, in accordance with the Board’s decision in

H. W. Elson Bottling Company, 155 NLRB 714, it is recom-

mended that the Union be given an opportunity to present

its views to the voting unit employees assembled on com-

signed on ‘‘the date indicated on the cards.’’ She answered, ‘‘I

would say they were.’’ Such testimony, in answer to a leading

question, in the light of Christian’s testimony, appears to have

little probative value.

59a

pany time and premises. It is further recommended that,

upon the request of the Union, Respondent shall make

available to the Union and its representatives at a mutu-

ally agreeable time within 3 months of the Recommended

Order herein, suitable facilities such as are customarily

used for employee meetings so that the Union may speak to

the voting unit employees assembled on company time. .

Such facility shall be available for one 1-hour meeting.

It is further recommended that upon the request of the

Union made within 1 month from the date of the Recom-

mended Order herein, the Respondent immediately grant

the Union and its representatives reasonable access. for a

3-month period to its bulletin boards and all places where

notices to employees are customarily posted.

_ Conclusions of Law.

_ 1. The Union is a labor organization within the mean-

ing of the Act.

2. The Respondent is engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.

3. By interfering with, restraining, and coercing em-

ployees in the exercise of their rights guaranteed them by

Section 7 of the Act, Respondent has engaged in unfair

labor practices within the meaning of Section 8(a)(1) of

the Act.

4. The aforesaid unfair labor practices are unfair

labor practices within the meaning of Section 2(6) and (7)

of the Act.

RECOMMENDED ORDER.

Upon the basis of the foregoing findings of fact and

conclusions of law and upon: the entire record in this case,

it is recommended that the Respondent, McEwen Manu-

facturing Company, its officers, agents, successors, and

assigns, shall:

FO ES RTT LTO TT ONY IO POT

LOL. PERO DP VeRO SE NOIR OE Re OY SITES

eee ee

a eit lee a

60a

1. Cease and desist from:

(a) Threatening employees with reprisals to discourage

their affiliation with or support of any labor organization ;

unlawfully interrogating employees concerning union acti-

vities or affiliations; or unlawfully impressing employees

with the futility of selecting the Union as a collective.

bargaining representative.

(b) In any’ like or similar manner interfering .with,

restraining, or coercing its employees in the exercise of

their rights to self-organization, to form labor organiza-

tions, to join or‘assist Amalgamated Clothing Workers of

America, AFL-CIO, or any other labor organization, to

bargain collectively through representatives of their own

h choosing, and to engage in concerted activities for the

purpose of collective bargaining or other mutual aid or

protection, or to refrain from any and all such activities.

| { 2. Take the following affirmative action which is found

{ ' will effectuate the policies of the Act:

(a) Upon request of the Union, made within 1 month

after the date of this Recommended Order, immediately

grant the Union and its representatives reasonable access

for a 3-month period to its bulletin boards and all places

where notices to employees are customarily posted.

(b) Upon request of the Union, make available to the

Union and its representatives, at a mutually agreeable

time within 3 months from the date of this Recommended

Order, suitable facilities such as are customarily used for

employee meetings so that the Union may present its~views

to the employees assembled on company time. Such facili-

ties shall be made available for one 1-hour meeting.

of the attached notice marked “Appendix.”?? Copies of

*2Tn the event that this Recommended Order is adopted by the

Board, the words ‘‘a Decision and Order’’ shall be substituted for :

the words ‘"the Recommended Order of a Trjal Examiner”’ in the ¢

(Footnote continued on following page.) of

a“

61a

said notice, to be furnished by the Regional Director for

Region 26, after being duly signed by Respondent’s repre-

sentative, shall be posted immediately upon receipt thereof,

and be maintained by it for 60 consecutive days thereafter,

in conspicuous places, including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by Respondent to insure that said notices are not

altered, defaced, or covered by any other material.

(d) Notify the Regional Director for Region 26, in

writing, within 20 days from the date of this Decision, what

steps the Respondent has taken to comply herewith.*

Ir Is Furruer Recommennen that the complaint bé dis-

missed insofar as it alleges violations of the ‘pet other;,than

_ those found in this Decision. , {jj j

Dated at Washington, D.C. _ ‘ oe ea S

APPENDIX:

NOTICE TO ALL EMPLOYEES

Pursuant to the Recommended Order of a Trial Ex-

aminer. of the National Labor Relations Board, and in-

order to effectuate the policies of the National Labor

Relations Act, as amended, we hereby notify our employees

that:

WE WILL NOT question you in any way over. the

Union so as to violate the law.

WE WILL NOT question you concerning what you

are doing about the Union.

notice. In the further event that the Board’s Order is enforced by

a decree of a United States Court of Appeals, the words ‘‘a Decree

of the United States Court of Appeals Enforcing an Order’’ shall

be substituted for the words ‘‘a Decision and Order.”’

28In the event that this Recommended Order is adopted by the

Board, this provision shall be modified to read: ‘‘Notify said

Regional Director, in writing, within 10 days from the date of this

Order, what steps Respondent has taken to comply herewith.’’

Sos sk Rl lk all aie ATOR ER AON Te

a . 7 t

62a

WE WILL NOT threaten you i heat losing your jobs,

about the plant closing, or threaten you in any other

way concerning the Union.

WE WILL NOT tell you it would not be any use to get-

the Union in the plant.

WE WILL NOT in’ any like or similar manner inter-

fere with; restrain, or coerce our employees im the ex-

ercise of the right of self-organization, to form labor

organizations, to join or assist the Amalgamated

Clothing Workers of America, AFL- CIO, or any other

labor organization, to bargain collectiv ely through

representatives of their own choosing, to engage in -

concerted activities for the purpose of collective bar-

gaining, or other mutual aid or protection, or to re.

frain from ‘any and all such activities.

WE disavow any claim, assertion, or implication made

by any of our representatives that our McEwen opera-

tion will. be curtailed or discontinued as reprisal for

our employees’ affiliation with or support of any labor

‘ organization.

WE WILL upon request of the Union, immediately

grant the Union and its representatives reasonable

access, for a 3-month period, to our bulletin boards and

all places where notices to employees are customarily

sted.

~ WE WILL, upon request of the Union, make available

pe to the Union and its representatives, at a mut? nally

agreeable time within 3 months of the Recomme: nded -

Order herein, suitable facilities such as are eustom: anily

used for employee meetings so that the Union may

present its views to the employees assembled on com-

pany time. Such facilities shall be made available for

one 1-hour meeting.

63a

All our employees are free to become or remain, or to

refrain from becoming or remaining, members of any labor

organization.

McEwen Maxuracroaiine Company

(Employer)

( Representative) - (Title) |

This notice must remain posted for 60 consecutive days

from the date of posting, and must not be altered, defaced,

or covered by any other material.

If employees have any question concerning this notice

or compliance with its provisions, they may communicate

directly with the Board’s Regional Office, 746 Federal Office

Building, 167 North Main Street, Memphis, Tennessee,

38103, Telephone 543-3161.

McEwen, Tennessee

Oo are Rn

64a

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

TWENTY-SIXTH REGION

McEwen Manvracturine CowPayr ,

Employer-Petitiomer |

and |

. Case No. 26-RM-205

AMALGAMATED CLOTHING Wosksss |

or America, AFL-CIO

4 eon

DECISION, ORDER, AND DIRECTION OF

SECOND ELECTION.

Pursuant to a Stipulation for Certification. upon Con-

sent Election executed on July 11, 1966, an election by

secret bailot was conducted om July 27, 1966, under the

direction and supervision of the Regional Director for Re-

gion 26 among the employees im the stipulated unit. At the

conclusion of the election, the parties jwere furnished with

a tally of ballots which oes tint of approximately 164

eligible voters, 160 cast ballots, of which 60 were for, and

96 against, the Union, 1 ballot was challenged, and 3 ballots

were void. The challenged ballets were not sufficient in

number to ‘affect the results of the election. Thereafter,

the Union filed timely objectioms to conduct affecting the

results of the election.

In accordance with the Natiomal Labor Relations Board

Rules and Regulations, the Regreomal Director conducted an

65a

investigation and, on September 2, 1966, issued and duly

served upon the parties his Report on Objections, in which

he recommended that objection 1 be sustained, the election

set aside, and a new election directed. The Regional Di-

rector also recommended that objections 2, 3, and 4 be Tr

overruled. : Thereafter, the Employer filed timely excep-. :

tions to the Regional Director’s report. The Union filed a

timely exceptions conditioned on the Board’s overruling the

Regional Director’s recommendation to sustain objection 1. a

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. - a

Upon the entire record in this case, the Board finds:

1. The Employer is engaged in commerce within the

meaning of the Act and it will effectuate the —_ of the

Act to assert jurisdiction herein. i

2. The Union is a labor organization claiming to rep- 4

resent certain employees of the Employer. _ :

3. A question affecting commerce exists concerning the

representation of the employees of the Employer within the E-

meaning of Section 9(c)(1) and Section 2(6) and (7) of the P

Act. ; e

: 4. The parties stipulated, and we find, that the follow-

ing employees of the Employer constitute a unit appro- °

priate for the purposes of collective bargaining within the

meaning of Section 9(b) of the Act.

‘All production and maintenance employees of the

Employer at its McEwen, Tennessee, plant, including

the shipping clerk, the mechanics, the ticket and recut

girl and the marker, but excluding the foreladies, cut-

ting department foreman and all office clerical employ- |

ees and all guards, professional employees and super- i

visors as defined in the Act. :

mee ae

ee oe

66a

5. The Board has considered the Regional Director’s

report, the Employer’s exceptions,! and the Union’s condi- |

tional exceptions thereto, and for the reasons set forth in

his report, hereby \adopts the Regional Director’s findings

and recommendations,? with the modification herein noted.?

Accordingly, we shall set aside the election and direct

that a new election be held.

ORDER.

It Is Hereby Ordered that the election conducted herein |

on July 27, 1966, be, and it hereby is, set aside.

DIRECTION OF SECOND ELECTION.

A second election by secret ballot shall be conducted

among the employees in the unit found appropriate at such

time as the Regional Director deems appropriate. The

Regional Director for Region 26 shall direct and supervise

the election, subject to the National Labor Relations Board

Rules and Regulations. Eligible to vote are those in the

unit who were employed during the payroll period immedi-

ately preceding the date of issuance of the Notice of Second

-Hlection, including employees who did not work during that

period because they were’ill, on vacation, or temporarily

We find no merit in the Employer’s contention that the

Regional Director in recommending that the election be set aside .

went outside the scope of the objections filed by the Union and by

relying upon the Employer’s speech of July 26, 1966. It «is well

settled that the jurisdiction of the Regional Director in making

post-election investigations is not. limited to the specific issues

raised by the parties. See, for example, The Glidden Company,

121 NLRB 752, 753; Carter-Lee Lumber Company, 119 NLRB

1374, and cases cited therein. ye

“Member Fanning would rely only on that part of the pre-

election statements wherein the Employer in effect threatened not

to renew its lease and to discontinue its operations in the event the

Union won the election.

We do not pass on and hence do not adopt the Regional

Director’s findings and recommendations with respect to objection

a oo a

2 Pie a erated z Lava Oey es &

: E

67a

laid off. Also eligible are employees engaged in an eco-

nomic strike which commenced less than 12 months before

the election date and who retained their status as such dur-

ing the eligibility period and their replacements. Those in

the military services of the United Statés may vote if they

appear in person at‘the polls. Ineligibile to vote are em- oe

ployees who have quit or been discharged for cause¢-sirice s

the designated payroll period and employees engaged in a

strike who have been discharged for cause, since the com-

mencement.thereof, and who have not been rehired or rein-'

stated before the election date, and employees engaged in

an economic strike which commenced more than. 12 months

_ before the election date and who have been permanently

| replaced.t Those eligible shall’ vote whether or not they

desire to be represented for collective-bargaining purposes

by Amalgamated Clothing Workers: of America, AFL- -CIO.

Dated, Washington, D.C., Nov. 18, 1966.

John H. ‘asta C Member

Gerald A. Brown, Member

=a Sam Zagoria, oe Member

(Seal) . . National Labor Relations Board

4An_election eligibility list, containing the names and addresses

of all the eligible votérs, must be filed by the Employer with

the Regional Director for Region 26 within 7 days after the date

of issuance of the Notice of Second Election by the Regional

Director. The Regional Director shall-make the list available to ~

all parties to the election. No -extension of time to file this list

shall be granted by the Regional Director except in extraordinary

circumstances. Failure to comply with this requirement shall be

grounds for.setting aside the election whenever proper objections

are filed. Brecelsior Underwear Inc., 156 NLRB No. 111.

68a

REPORT ON OBJECTIONS.

Based upon a petition filed on June 15, 1966, and pur-

suant to a Stipulation for Certification Upon Consent Elec-

tion executed by the parties and approved bythe Acting

Regional Director for the Twenty-sixth Region on July 11,

1966, an election by secret ballot was conducted on J uly 27,

1966, among certain employees' of the Employer at its plant

located in McEwen, Tennessee. The results of the elec.

’ tion, as disclosed by the Tally of Ballots, served upon the

parties at the conclusion of the election, are as follows:

Approximate number of eligible voters........... 164

We WINN ea a re glee vos Wad PCN ue UO ob deo « 3

WOO WE BOE A i ook ooo vn vn eiccic eek vice, 60

Votes cast against participating labor organization. 96

Vie Weel OO gece cee ee 156

Challenged ballots... ............ Wane chawes ses 1

Valid votes counted plus challenged ballots........ 157

Challenges are not sufficient in number to affect

the results of the election.

A majority of the valid votes counte lus chal-

lenged ballots has not been cast for Whion

On August 3, 1966, the Union filed timely objections to

conduct affecting the results of the election, a copy of which

was duly served upon the Petitioner. The Union's objee-

tions are as follows:

1. In a five-page typewritten letter mailed to all em-

' ployees on or about July 14, 1966, the Employer:

‘All production and maintenance employees of the employer

at its McEwen, Tennessee plant, including the shipping clerk, the

mechanies, the ticket and reeut girl and the marker, but exelnd-

ing the foreladies, cutting department foreman and all office

clerical employees and all guards, professional employees and

supervisors as defined in the Act,

69a

(a) threatened that it would not renew its lease if

. the Union won the election,

(b) stated that it would not yield to any Union de-

mands if the Union were designated collective

bargaining agent, and that the Union would have

to strike to enforce its demands, ° \,

ssVof working

time, loss of jobs and plant shut-down if the

Union won the election.

(d) made promises of benefits to employees contin-

gent upon the defeat of the Union in the election, .

(e) by the totality of its letter and viewed in the

context of prior conduct by the Employer, the

Employer impressed upon the employees the fu-

tility of voting for the Union.

2. On or about June 22, 1966 a supervisor, acting as an

agent of the Empleyer, threatened an employee with

plant closing if the Union won the election.

3. On or about July 11, 1966 the Employer discharged

Betty Turner for the purpose of discouraging a vote °

in favor of the Union.

4. Shortly before the election, the Employer engaged

in unlawful surveillance of a Union meeting.

Pursuant to Section 6 of the Stipulation for Certifica-

tion Upon Consent Election and Section 102.69 of the

Board’s Rules and Regulations, Series 8, as amended, the

undersigned has. caused an investigation of the objections

to be made, during which all parties were afforded full op-

portunity to submit evidence bearing on the issues, and the

undersigned, having duly considered the results thereof,

reports as follows:

;

ze?

70a

Ossection 1:

It is undisputed that on July 14 or 15, 1966, the Em-

ployer mailed to all its employees a letter, copy of which is

attached hereto as Exhibit 1. |

The Union contends that the letter should be considered

in context with a speech made by company official Jack

Pedigo on June 3 or 4, 1966, and also in context with al-

leged threats by supervisors made to employees on or about

June 7, 8, and 13. As incidents occurring before the filing

of a petition may not be considered as a basis for objec-

tions, this contention of the Union is rejected.?

On July 26, 1966, company official Jack Pedigo ad-

dressed the employees. The speech, copy of which is at-

tached hereto as Exhibit 2, ended more than twenty-four

hours before the time of the election. Employee witnesses

submitted by the Union who testified concerning the speech

gave versions which indicate the copy furnished by the

Employer is an accurate version of what Pedigo said.

After careful reading and consideration of the letter and

speech it is found that the main theme of the Employer’s

campaign was the futility of selecting the Union as the col-

lective bargaining representative, and the dire consequences

which might be expected. Thus, the opening thrust of the

letter voices the Employer’s opinion that the Union would

not help the employees or the Company and expresses the

first belief “. . . that the Union will hurt you and it

could destroy us—that is just how serious this matter is.”

(underlining supplied)

Both appeals to the employees emphasized the Union’s

inability to do more than make promises and stress the

fact that only the Employer could grant benefits. These

appeals were so worded as to convey the message that the.

Union’s requests would fall on deaf ears, and only by strik-

ing could the Union attempt to make good on its promises.

*Goodyear Tire and Rubber Company, 138 NLRB 453.

71a

Having impressed upon the employees the idea that a strike

was probable rather than just a possibility if the Union

were selected, the Employer raised the spectre of plant

closing, with pointed reference to the recent closing of a

plant in a nearby city after organization by the Union.

The reference to the company’s intent to renew its lease

contained a proviso which warned the employees that the

Union might make conditions such that the Company would

not feel justified in renewing its lease, but failed to indicate

what type of conditions would so influence the decision.

Under these circumstances it is found the letter intended

to, and did, convey the message that the mere selection of

the Union could cause the Employer to decide not to renew

its lease and to discontinue its operation.

In view of the foregoing, it is,found that by its ietter of

July 14 or 15 and the speech of Pedigo on July 26, the Em-

ployer created an atmosphere of fear in which the frée ex-

pression of choice of the employees was rendered impossi-

ble, and merit is found to this objection.

Accordingly, it is recommended that Cases 1 be

sustained.

OBJECTION 2:

‘In support of this objection, the Petitioner submitted an

employee witness who testified that on the morning of July

18, 1966, floorlady Edna Hargis, an admitted supervisor,

approached and immediately asked what the employee.

thought about the Union. The employee responded that she

_*~* thought the Union“. was all right” and Hargis then

wanted to know what the Union could do for the employees.

The employee merely stated that she was for the Union and

Hargis walked away without further comment. According

to the witness, Hargis returned about 1:15 p.m., said she

was taiking to the employee as a friend, that she had worked

for the Company for several years, and knew it would not

}

‘

PS OOM YT mee or

JE PERS SE HF erat =

72 <<

“. . . Stand for a union coming in.” According to the

employee, Hargis mentioned the possibility of a strike and

resultant loss of work and again asked what the employee

thought the Union would do for the employees. When told

the employee thought the Union could do a lot, Hargis said

she did not want the employee to change her mind but did

want the employee to really think about the way she should

vote.

Hargis denied that she ever mentioned or discussed the -

Union with any employee and also denied that she ever

asked any employee what the employee thought -about the

Union.

The employee witness had signed a union card, attended

union meetings, and associated with other union adherents.

Thus, it would appear her prounion sentiments would be

known within her department, making it unnecessary for

Hargis to question her. As no other instances of similar

nature involving Hargis or any other supervisor were al-

leged, Hargis’ denial is credited. In any event, assuming

the incident occurred as alleged, it would be one isolated

incident involving one employee in a unit of approximately

156 employees and would not, of itself, warrant the setting

aside of the election, and this objection is found to be with-

out merit. \

Accordingly, it is recommended that Objection 2 be

overruled.

OssecTIon’ 3:

Betty Turner’s employment terminated on or about

July 12, 1966. Although the Union contends Turner was

discharged, rather than voluntarily quitting as asserted by

+. the Employer, no charge alleging Turner was discrimina-

torily discharged has been filed. Consequently, this objec-

tion is found to be without merit.

Accordingly, it -is recommended that Objection 3 be

overruled. s

73a

OBJECTION 4:

Employee witnesses testified that a Union meeting was

held in the American Legion Hall in Waverly, Tennessee,

on a night within a week of the election, and that the auto-

inobile of plant manager Thomas M. Robertson was parked

at a cafe about one block away for a period of about one

half hour. Union aftempts to photograph the car with a

flashbulb camera proved unsuccessful. Two employees tes-

tified that they passed Robertson on the highway on the

way to Waverly and that after they parked they saw

Robertson park ‘in front of the Dixieland Coffee Shop.

One of these employees continued to observe Robertson and

saw him get out of his car and go into the coffee shop with-

out delay. No employee saw him again until he left about

a half hour later at whick4ime he went directly to his car

and immediately drove away.

Robertson testified that for the past three years, ee

been the custom for his wife and him to“. . . drop ir’ the

Dixieland Coffee Shop in the evenings either for supper or

after supper for a cup of coffee.” The operator of the cof-

fee shop, Louise Nolan, testified that ever since she opened

the shop about three years ago the Robertsons have

dropped in on the average of once or twice a week, but

more often in the summer. This testimony of Robertson

and Nolan is credited. :

Robertson testified that on the night in question he sat

in his usual place in the restaurant facing the kitchen, that

there was no mention of a union meeting, and denied that

he was aware a meeting was scheduled. Nolan corroborates

the fact there was no mention of a union meeting. They

both remember the night because camera flashbulbs flashed

while Robertson was paying his bill. They looked out the »

window and saw a union representative apparently photo-

graphing Robertson’s car. The Robertsons then left the

coffee shop and drove away.

enttad ath a aen ioe heres tae

Two wow

PAIL Or IRE RTL LP PSs PPT

74a

In view of the credited botnet that Robertson and his

wife often frequent the cafe in the evenings and absent any

evidence that Robertson engaged in surveillance of the

meeting, ng merit is found to this objection.

Accordingly, it is reccinmnended that Objection 4 be

overruled.

CONCLUSION AND ‘RECOMMENDATION :

Having recommended that Objection 1 be sustained and

Objections 2, 3, and 4 be overruled, and as the Tally of

Ballots reveals that the Union did not seeure a majority of

valid votes cast, it is further recommended that the election

herein be set aside, and a new election be directed.

Dated at Memphis, Tennessee, this 2nd day of Septem-

ber, 1966. i

Let ) John J. A. EEO ‘Tr.

: Director yet ’

Twenty-sixth Region

National Labor Relations Board

746 Federal Office Building

167 North Main Street

Memphis, Tennessee .38103

vesoce erste | Ee

" McEWEN MANUFACTURING COMPANY ia te

McEwen, Tennessee

To All Employees of

McEwen Manufacturing Company

This letter is addressed “To All Employees” of this com-

pany because what we are writing about concerns the future

of all employees.

So that all of you could have a fair and honest chance

to express your desire for or against Union representation,

—

Re ee oe ee

7 75a

the company requested the National tates Relations Board

to hold an election. The election by secret ballot will be

held in the loading dock area on July 27, 1966. Private

booths will be set up so that only the person voting will ever

know how he or she voted. It will be truly a secret ballot.

You will vote on company time without any loss of pay for

the time you spend in voting.

We want you to have the facts on all sides so as to make

up your mind about this very serious decision. We hope

that you will read every word of this letter and after you

read it you willconsider what is said, discuss it with your

fellow employees and discuss it with the plant manager and

supervisors if you want to, because each and every one of

us is interested... _

In the beginning we want you clearly to understand that

the company hopes, trusts and believes that in your good

judgment vou will vote against the Union. In our opinion,

the Union will not help you and will not help us. On the

other hand, we firmly ‘believe that the Union will hurt you

and it could destroy us—that is just how serious this

matter is.’ 4 |

You might ask yourself whether or not it is to your best

interest to vote for this Union. In answering this question,

there are several things. that you might consider.

In the past this company has been able to provide steady

_ employment, wages comparable and competitive with those

of other*manufacturers in the area, vacation pay, holiday

pay, hospital and medical insurance, a bonus at Christmas,

-and quiet and peaceful working bilities

Now, what does the Union offer? (End of page 1)

Some people think that just by getting a Union there

is automatically an increase in pay and benefits of various

_ Kinds. This is absolutely not true. Voting for the Union

will not automatically bring any wage increases or’ any

other benefits.

76a

If this Union were to be voted im, there would still be

no way that it could force the compamy to do anything that

we are not willing or able to de. The Union could call you

out on strike. The Union could stom you from working for

us. Please realize and understamd in advance, however,

that this company has no intentiom of yielding to any sort

of strike pressure to force it ta d» something that it other-

wisé would not be willing to da.

Strikes take place where there are Unions. Everybody

‘knows that, and everybody knows that strikes mean trouble .

and dissension, strife and misery, lost work and lost pay:

You have all read and heard about strikes in our own area,

as well as elsewhere in which people pulled out by their

Unions have stood around d#y after day_and week after

week on picket lines, while their bills and expenses con-

tinue and obligations pile up om their homes, their auto-

mobiles and all their other belomzinmgs.. What have the

Unions gained for the people who are involved in these

strikes? As a rule the answer is nothing except trouble

and misery, debt and regret. This could happen here if a

‘Union-is voted into this plant, fior we will not be bullied,

we will not be coerced by a Uniom.

There are cases where people whe are out ona stpt e

not only gain nothing, instead they have lost their} jobs.

If a Union ealls people out om strike to try to-force the

company to agree to what he Umiom wants, it is definitely

”

to go out on strike. Those ear wile jobs are filled

while they are out on strike will kave no right-to return to

their jobs or to get their jobs back even when the strike

has ended. And remember this, employees out on strike do

not draw unemployment benefits. :

Now do you want to subjeet yourself, your fellow em-

ployees and your company to this sort of thing? We have

never had it here and we, hope that we will never have it.

(End of page2) “<

Unions do not come free. You pay. You pay initiation

fees plus assessments, plus monthly dues, and these can

easily add up to $100.00 or more for a year. It is common

practice for Unions to levy fines for failure to attend Union

meetings, or for violation of other Union-made rules.

The Union which is seeking to represent you has had its

share of strikes. At Henderson, Tennessee at this very

_ moment a plant has been closed, machinery has been moved

out, and piece goods and even the garments in the process

of manufacture have been moved. The strike started: about

the first of May and the plant has been closed since that

time. Nobody knows when, if ever, that plant will reopen,

What has the Union got for those people except trouble? \

Now do you want the Union to. close your plant? The

Union can’t close your plant unless it is voted.in, but if it.

is voted in the Union ean do the same thing here that the

Union did for the employees of Shults Mfg. Co., at Hender-

son, Tennessee. The Union closed that plant and put those

people out of work. That is the same Union ‘which is

asking you to give it your money in order that it may come

in here and possibly do the same thing here that it has

done at Shults Mfg. Co.

Yes, this question of voting in a Union is a serious

matter and sould not be taken: lightly.

When you think about these things you also will want

to think’ about your past and your present relations with

the company. We are not perfect,.and we do not pretend

to be. We are, however, genuinely and sincerely interested

in our employees and their well being. In the past we

have improved your earnings and raised your wages. It is

our hope and intention to keep improving these conditions. |

You can count on that without having to pay any Union

dues to accomplish it. With respeét to other benefits, you

have vacations and vacation pay, paid holidays, insurance

with hospital and medical and surgical coverage, and the

bonus at Christmas. Yeu received all of these benefits

Sanaa eso REG yet

: Ra eSI OO tar tee

ri sai OES

> ~

on i id Sean SES a

POE

78a

without paying Union dues for them. We have improved

these conditions in the past and it is our hope and inten-

tion to continue to improve these benefits. It will not re-

quire any Union to keep these benefits for you, and it will

not require any Union to have improvement in those con-

ditions. (End of page 3)

Now some of you have signed Union authorization

cards. Sometimes these cards are signed without know-

ing what they mean. Sometimes they are signed because

of the pressure which has been put on a person to sign one.

The fact that an employee has signed an authorization

card does not mean that he or she has to be for or vote for

a Union in the election. When you go into the voting

booth with the ballot in your hand, the decision you make

there is the decision that counts. It is your future that is

involved. If you vote “NO” you are voting against the

Union, you are voting for uninterrupted steady employ-

ment.without payment ’of Union dues, improvement in

wages and other benefits as and when circumstances per-

mit the company ‘to make those improvements, and you are

voting for continued operation of your plant.

If you vote “Yes” you are voting to pay Union dues

which will get you nothing in addition to what you other-

wise could get. You are voting for Union demands against

the company which could result in strikes, loss of time,

loss of jobs, and possible loss of your company and plant

because of Union demands, Union pressure and Union

violence. , :

We ask you to vote “NO” because we are certain in our

own minds from all the experiences we see around us that

it is to your best interests to keep this Union out.

Nineteen years ago, on the Ist of July, 1947 to be exact,

McEwen Manufacturig Company entered into a lease agree-

ment with the City of McEwen leasing the present plant

property. This lease expires June 30, 1967. The company

hopes to be able to continue.to operate in McEwen in the

ee See IE Mee eet

79a

plant which it now occupies. In order to do so, it will be

necessary that a new lease be negotiated within the next -

period of eleven months. Please be assured that the com-

pany intends to continue to operate and to negotiate a new

lease if it can do so; provided, of course, that some thing

or some agency, such as the Union, does not make condi-

tions such that the company would feel that it would not

be justified in endeavoring to make a new lease. The ques-

tion as to whether or not a new lease will be made is a deci-

sion that management must make in the next few months

in the light of the circumstances that exist at the time.

We are saying this to you because the question of the lease

may be mentioned by someone in the course of the next

several months, (End of page 4) <

We believe in the employees of McEwen Manufacturing

Company. We are proud to havé you working for this

company. We believe that you are people of good judg-

ment. We ask you to help yourselves and at the same time

to help us by voting “No” when you mark your secret

ballot on July 27th.

If you want to discuss anything that is said in this

letter with atty supervisor, plant manager or other official

of the company, all you have to do is to let us know and we

will talk with you about this letter, the Union, or any thing

involving your employment.

With our very best wishes. »

Sincerely yours,

McEwen Manvuracturine Company,

By /s/ Jack Pedigo, |

/s/ T. M. Robertson. |

AE aes .

Re on

80a

Si EXHIBIT 2

McEWEN MANUFACTURING COMPANY

This is the last opportunity that I will have to talk to

you as a group before the election tomorrow morning. As

the time for this election has drawn closer, I have been

“more and more impressed with just how serious a matter

this is for you. for me and for the Company.

I believe that people like to have some feeling that they

are assured of steady employment at a fair wage and under

reasonable working conditions. As you know, all of us

work in a highly competitive industry. We have to com-

pete with hundreds of other manufacturers who make the

same products which are made at this plant. If our cost

of making the garment is not competitive, then there are

no jobs. We have tried and, up to this point, have suc-

ceeded in meeting our competition and at the same time

providing steady jobs with increases in wages from time

to time and additional benefits in the form of insurance,

- paid holidays, paid vacations and the Christmas bonus.

I have always felt that the people who work here have

had the feeling that they had security in their jobs. This

is because the Company has been able to make its prices

to meet competition and in doing so has been able to con-

trol the production, make the jobs available, increase these

wages and add these benefits.

The Company has not had to meet with a Union on any

matter concerning the operation of this business. Under ;

the Company management, you have had these things with-

out Union interference. (End of page 1)

The Union proposes that you pay it money and in return

for that it promises you increases in wages and increases

in a lot of other benefits.. The Union can’t make you these

promises and deliver on them. \ When the Company

8la

promises to do.a thing, the Company can fulfill that prom-

ise. The Union can’t fulfill its promises, because the Union

cannot get anything for you that the Company is not willing

to give. Unions can make promises, but only the Company

can fulfill a promise, and I tell you»no Union can make a

promise for us.

If the Union promises you things that the Company is

not willing to give, then the Union has to either renege or it

has to try to force the Company to fulfill the Union promise.

Now, how does a Union go about making a company do

_, Something that the company is not willing to do? There is

only one way that it can exert pressure on a company and

that is by using you and your jobs and your employment,

and your job security as a weapon against the company.

By that, I mean the Union can tell the Company that if it

does not do what it says do, it will call the employees out

on strike. I have told you this before, and I ‘tell you again,

we will not be pressured, coerced or intimidated by any

Union. If you bring-the Union in here, it can take you out

on strike, but that does not mean that the Company has to

do what the Union says.

~ This Union that is asking you to vote for it and to pay

to it initiation fees, dues and assessments, is the. same-

Union that went over to Henderson, Tennessee, and organ-

ized a little plant called “Shults Mfg. Co.” The Union

made its demands on (End of page 2) that company.

The company did not feel that it could meet the demands.

The best that the company felt it could do was not satis-

factory with’ the Union. ‘The Union called the people out

on strike on May 3rd of this year.. The plant has been idle

since May 3rd and the employees have been out of jobs.

In the meantime, machinery and piece goods have been

moved out of the plant. The result of the Union organiza-

tion of that plant then has been to close a plant and leave

it idle and to take people out of jobs and leave them idle.

And these idle people cannot draw unemployment benefits.

ur 82a eae gg

Now, let’s just compare that sort of situation with what

we have had here at McEwen Manufacturing Company.

Work has been steady; jobs have been secure; wages have

been increased and benefits have been increased. You

have had these things ‘without a Union and without a

Union you can continue to have them.

The management of this Company feels that it knows

how to run this Company and does not need a Union to, tell

it how to run it. The Union doesn’t put a dime into the

plant. The Union does not pay the employees of this

Company anything.’ The Union takes from the employees

of the Company a part of what it pays the employees. We

firmly believe that the Union cannot get you anything for

«the money it would require you to pay. We know what we

* can do, we know what” we are willing to do, and no —

can change that. .

for sale and paying our ‘employees. We do not believe in

violence, unrest, disturbance, picket lines, strikes, bitter

language, work (End of page 3) stoppages or having

the welfare of our employees depending upon the whim of

some Union boss. ,

With the employees and the Company ‘aiihs together,

understanding each other, we feel that we can continue to

progess, that we can continue to improve wages, that we

can continue to improve benefits, that we. can better work-

ing conditions, that we can continue to have steady em-—

ployment and that the people who work for us can continue

to have job security. With a Union in here, we believe that

there will be trouble, that there will be work stoppages,

that there will be strikes, that there will be loss of jobs,

and we fear that this Union will do the same thing for you

and this Company that the Union has done to the employees

of Shults Mfg. Co., and that company. We do not want

that to happen, It will not happen if we have any control

83a : \

of the matter, but if the Union comes in then the Company

.cannot be responsible for what happens after that.

We éarnestly and sincerely tell you that we do not be-

lieve that this Union can’bring you anything good,’ but that

it will bring to you and to us trouble. We have not had

that trouble. We do not want that trouble. When you go»

to vote tomorrow, we ask you. to vote “NO” for it is our firm

conviction that a “NOP? vote is in your own”best interest.

We have tried to explain to you our feeling and our: posi-

tion about this. It should be clear by this time. What you

do tomorrow will depend upon your own j

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