Bonham Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1963

140 N.L.R.B. 1135 (N.L.R.B. 1963)

BONHAM MANUFACTURING COMPANY, INC. 1135
(f) Notify the Regional Director for the Ninth Region, in writing, within 20
days from the date of receipt of this Intermediate Report, what steps the Respondent
has taken to comply herewith.87
sr If 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 the Respondent has taken to comply herewith."
APPENDIX A
The transcript of testimony herein is hereby ordered corrected in the following
respects:
1. Page 25, line 13, change "thresh" to "threshold".
2. Page 33, line 7, change "section" to "violation".
3. Page 175 , line 23, insert "accumulation" after "months".
4. Page 204 , line 13, strike "not".
5. Page 254, line 3, strike "not".
6. Page 717, lines 4 and 5, change "August" to "October".
7. Page 822 , line 14, change "above" to "of each".
8. Page 970 , line 16 , change "69" to "59".
9. Page 973 , line 1 , change "mast" to "master".
10. Page 987 , line 9, change "He" to "I" *
11. Page 1110 , line 16, change "for" to "forth".
12. Page 1247, line 9, change "go" to "give " and "place" to "case".
13. Page 1296 , line 10, change "general" to "funeral".
14. Page 1389 , line 2 , change "union" to "company" before "to".
15. Page 1665, line 2, change "background" to "incident".
16. Page 1717, line 9, insert "a stipulation that" after "propose".
Bonham Manufacturing Company, Inc. and Amalgamated Cloth-
ing Workers of America , AFL-CIO. Cases Nos. 16-CA-1689
and 16-IBC-3123. February 7, 1963
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On November 21, 1962, Trial Examiner Benjamin B. Lipton issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices in violation of Section 8(a) (1) of the Act and recommend-
ing that it cease and desist therefrom and take affirmative action, as
set forth in the attached Intermediate Report. The Trial Examiner
also found that certain of the aforesaid unfair labor practices engaged
in by the Respondent interfered with the results of the Board election
in the above representation proceeding, and recommended that the
said election be set aside and that a new election be held at an ap-
propriate time. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect there-
to. Thereafter, the Respondent filed exceptions to the Intermediate
Report and a brief in support thereof.
140 NLRB No. 115.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions z and the brief, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
[Text of Direction of Second Election omitted from publication.)'
' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Leedom and Brown].
2 The Respondent's exceptions to the Intermediate Report are in large part directed
to the credibility resolutions of the Trial Examiner . We will not overrule the Trial
Examiner 's resolutions as to credibility unless a clear preponderance of all relevant evi-
dence convinces us that they are incorrect . Upon the entire record, such conclusion is
not warranted here. Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F. 2d
362 (C.A. 3).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
In Case No. 16-CA-1689, an amended charge was filed by Amalgamated Clothing
Workers of America, AFL-CIO, herein called the Union, and served on Bonham
Manufacturing Company, Inc., herein called the Respondent , on July 27, 1962.1 In
Case No. 16-RC-3123, a Supplemental Decision and Order was issued on July 6,
1962, by the Regional Director for the Sixteenth Region , on behalf of the National
Labor Relations Board , finding that certain of the objections (numbered 1, 2, and 4)
filed by the Union to the election conducted on May 10, 1962, raised substantial and
material issues of fact which could best be resolved by a hearing .2 On August 10,
1962, the General Counsel of the Board , by the said Regional Director , issued a
complaint against Respondent , based upon the Union's amended charge, together
with an order consolidating the representation and complaint cases and a notice of
hearing. The complaint alleges certain acts of interference , restraint , and coercion
in violation of Section 8(a) (1) of the Act and includes , inter alia, the same allegations
in the Union's objections to the election which the Regional Director referred for
hearing.
On September 25 and 26, 1962, a hearing in the consolidated proceeding was held
before Trial Examiner Benjamin B . Lipton in Sherman , Texas. All parties participated
in the hearing and at the close thereof were afforded opportunity to argue orally
on the record. Respondent 's motion to dismiss the complaint is disposed of in
accordance with the findings below. Briefs received from the Respondent and the
General Counsel have been duly considered.
Upon the entire record in the cases, and from my observation of the witnesses,3
I make the following:
1 The original charge was filed and served on June 29, 1962
a The election in a production and maintenance unit of Respondent 's employees was
held by the Regional Director pursuant to a petition filed by the Union on March 20, 1962,
and a Decision and Direction of Election issued by the Regional Director on April 17,
1962, after formal hearing. The Union lost the election by a vote of 256 to 176 and filed
timely objections alleging coercive conduct by the Employer which interfered with the
election.
3 All credibility findings herein are based in whole or part on the demeanor of the
witnesses on the stand.
BONHAM MANUFACTURING COMPANY, INC. 1137
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , at its plant and principal office near Bonham , Texas, is engaged in
the manufacture of clothing . During the 12 months preceding issuance of the
complaint, Respondent had a direct outflow of goods and materials in interstate
commerce valued in excess of $50,000 and a direct inflow of purchased goods and
materials in interstate commerce valued in excess of $50,000. Respondent admits,
and I find, that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
HI. THE UNFAIR LABOR PRACTICES AND THE CONDUCT AFFECTING
THE ELECTIONS RESULTS
A. The allegations
The objections to the election which are placed in issue allege in substance that
(1) Respondent engaged in surveillance of a union meeting held on May 9, 1962,4
the day before the election, and (2) Respondent's supervisors, during the week preced-
ing the election, and at other times, threatened employees that the plant would be
closed down if the Union won the election .5 The Section 8(a) (1) violations alleged
in the complaint consist of (a) coercive interrogations of employees by Helen
Green on March 12 and by Marie Harvey on May 3; (b) threats to close the plant
and of other reprisals by Helen Green on March 10, Viola Clement on April 26,
Bill Briscoe on May 3, and Marie Harvey on May 3 and 5; and (c) surveillance of
meeting places and activities of the Union by Eddie Whipple on March 12 and
May 9 and 10, Helen Green on March 12, and Marie Harvey on May 8.
B. The setting
In November 1961, the Union commenced its campaign to organize Respondent's
employees. From sometime in February until the election on May 10, the Union
distributed leaflets at the plant about once a week, held meetings among the employees,
and had authorization cards solicited .6 Respondent was active in opposing the Union.
Meetings were held among the supervisors at which they were instructed on how to
conduct themselves in the election campaign; on March 20 or 21, they were given
a pamphlet with specific information as to what they could and could not do or say
about the Union. As the time for the election drew near, "feeling ran high" in the
plant, with strong sentiment for and against the Union. From about a week to
10 days preceding the election, Milton Foster, president and general manager of
Respondent, made several antiunion speeches over the plant's public address system
to .the assembled employees on their working time 7 Among other things, Foster
said that the plant was dependent upon Government contracts, and if he had to pay
more wages and benefits he would not he able to get the contracts; that "nobody's
going to make [him] shut the plant down-until [he does] not have the work, and
that will be because [he] cannot get the contracts from the Government." As such,
Foster's speeches are not alleged as a violation of the Act or election interference.
C. Supervisors
Respondent admits, and I find, that the following individuals are supervisors under
the Act: Marie Harvey, Bill Briscoe, Helen Green, and Viola Clement. In the com-
plaint case record, Respondent disputes the alleged supervisory status of Eddie
Whipple. During the period material herein, Whipple and three or four employees
worked the shipping department packing and shipping manufactured clothing.
4 All dates are In the year 1962 unless otherwise specified
5 The Union's objection No 4, which the Regional Director overruled only in part by
reason of his dismissal of objection No. 3, contains merely a generalized allegation that,
"By the above action, and other activities," the Employer (Respondent) interfered with
the election. Because of its repetitious character and absence of specificity required in
the filing of objections, I will not regard objection No. 4 as properly involving independ-
ent allegations of interference with the election.
6 In April and May 1962, Respondent had about 470 to 480 employees
7 The employees were requested to turn off the machines and come forward to the
front, presumably near the loudspeaker, where they were addressed by President Foster.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whipple assigned and directed the work of the others, but had no direct authority
to hire or fire. However, President Foster testified he would give "great weight" to
Whipple's recommendations to discharge employees. After having received Foster's
specific permission, Whipple was the agent to tell employees of their discharge, layoff,
or recall. Whipple told the employees he had the power to hire and discharge, and
Foster told employee James C. Wooley that Whipple was his boss. Whipple at-
tended the supervisory meeting, as above described, and received the written instruc-
tions from Respondent in regard to the election campaign. In his testimony at the
formal hearing preceding the election, Foster included Eddie Whipple with other
supervisors who had the power to hire and fire.8 On the record evidence herein, I
am of the opinion that Eddie Whipple is a supervisor within the meaning of the
Act, particularly as he has authority to make effective recommendations concerning
employee tenure. And I find in any case that Respondent is responsible for Eddie
Whipple's conduct because he has been held out and identified as a management
agent.
D. The merits
Betty Jean Banks, a machine operator, solicited authorization cards and was ac-
tive on behalf of the union in the election campaign. In mid-March, while Banks
was talking to "a boy" at the water fountain, her supervisor, Helen Green, came up
and said President Foster was watching her, to go back to her machine and sit down.
A few minutes later, Green approached Banks at her machine and said, "Betty, Mr.
Foster knows what you're doing." Banks replied, "I imagine he does, everybody in
the plant does." Banks told Green, as she had on previous occasions , that she was
for the Union and gave her reasons. Green stated that Foster said, "If the union
goes in they'd be forced to close." Banks asked, "Do you really think he will?"
Green said, "No." Banks added, "I do not think he will " 9
James C. Wooley, a shipping department employee, was questioned by his super-
visor, Eddie Whipple, about 2 months before the election of May 10. On the next
morning after a union meeting, Whipple inquired where the meeting had been held.
Wooley said he did not know. Whipple asked if he was for the Union and Wooley
answered, "Yes." On May 10, after he had voted, Wooley was asked by Whipple
how did he think it was going, did he hope it was going for the Union. Wooley re-
plied he did not know. Later that day, toward noon, while the voting was con-
tinuing, Whipple told Wooley that Foster said be (Wooley) was fired if the Union
came in and that the plant would be closed, because Foster could not pay the wages
the Union asked and he would not sign a union contract.'°
Robert Burns, a bundle boy, testified he overheard his floorlady, Viola Clement,
telling a group of employees about 2 weeks before the election that President Foster
said the plant would close down if the Union were voted in.ii About four em-
ployees were present, of whom Bums could identify only a girl named "Helen,"
who he said was employed as a "clipper." Clement testified that she spoke to the
girls about the Union when they asked her questions and that she answered them "to
the best of that pamphlet's knowledge," i.e., her written instructions from Re-
spondent concerning the Union. She admitted she said the plant would close down
if they did not have a contract. There were some 51 people at the time working
in Clement's department and, as far as she knew, only Helen Anderson, an in-
spector, had that given name . Helen Anderson, called by Respondent to testify,
stated that she had several jobs in the shop during that period, one of which was
inspector, that she knew no other girl with the first name of Helen , and that she
never heard Clement make the statement to her in Robert Bums' presence that
Foster would shut the plant down if it went Union. Anderson said that when she
was inspecting she was at a table by herself, that the machines make a lot of noise,
and that she "couldn't have beard" remarks made near the machines. Based on the
plausibilities in light of the entire record, as well as demeanor of the witnesses,
Burns' testimony is credited.
Jack Burk, a cutting room employee, testified he was told by Foreman Bill Briscoe
a week before the election that employee Floyd Nichols would get laid off before he
would because he (Burk) had passed out certain antiunion literature and Nichols
had not. Briscoe also said the plant would close down if it went Union-a state-
ment which he had previously made to Burk 2 or 3 months before the election.
s At the present hearing, Foster "corrected" the prior testimony by stating that these
supervisors did not have the right to hire
B Banks is credited where her testimony is in conflict with that of Green
10 Based on Wooley's credited testimony Whipple testified that he could not recall
any conversation with Wooley on the morning of May 10.
11 Clement denied making this statement
BONHAM MANUFACTURING COMPANY, INC. 1139
Briscoe's version was that he said Burk had passed out these circulars while Nichols
had not and "if any partiality was shown between the employees, that that would
be a dividing point, but from [his] standpoint there would be no partiality showed
among the employees-whether they participated in circulars, or not." He denied he
ever threatened that the plant would be closed down. Burk had distributed the lit-
erature at the request of Merle Meninhall, another employee in the cutting room.
Meninhall testified that when Burk told her he had filed charges against Briscoe,
she asked, "Just how much were you paid?" and he replied without any hesitation,
"Fifty." Burk testified that he told Meninhall the Union gave him $50 to sign cer-
tain statements but he was just teasing her, and that he later told her and Briscoe
the Union did not give him a penny. Considering Briscoe's partial corroboration of
Burk and the entire testimony, Respondent's contention is rejected that Burk de-
liberately fabricated the evidence and brought it to the Union as a reprisal against
President Foster for causing his termination by insisting that he must make produc-
tion. Burk is credited.
Verda Liston, Betty Barnes, and Pauline Goyer Barton were among the 70 to 80
girls who did handwork under the supervision of Marie Harvey. Liston testified
that on May 3 Harvey asked her if any of the union people visited her home, and
she replied in the negative. Harvey said, "It looks like we'll be out of work if this
place goes union . . . . We can't get contracts . . . Mr. Foster won't work under
the union." Barnes testified that a day or two before the election, Harvey asked her,
in the presence of Lucy Smith, if she had joined the Union. Harvey said in sub-
stance that they would be sorry if they joined the Union, that they would have
union bosses, and that if they wanted a job they had better not join the Union.
Harvey also inquired whether they had company (i.e., the Union) the night before
the election, to which Barnes replied that she had and Smith replied that she had
not.12 Barton testified that about May 5 she was in a group 13 to whom Harvey
spoke about the Union. Harvey asked "if any of them had any visitors, meaning
the union . some of them said they had. She said we didn't know even when
we had a good thing, and if we voted union Mr. Foster would be forced to close the
plant down." On another occasion shortly before the election, Harvey stated to
the girls at the work table, while looking at Barton, that "anybody was crazy that
would vote for the union," and that "Mr. Foster kept some of them there that wasn't
making progress." Barton was not "making production," i.e., she was not producing
on a piece-rate basis the equivalent of the minimum wage required by law. Harvey
testified President Foster had said in his speeches that without contracts the plant
could not operate, that he was paying all he could for piece rates, and that if the
Union won and asked for higher wages, he could not pay it. She said she "could
have" told Liston that the plant could not operate without contracts, but it had
nothing to do with the Union.14 While denying making any threat of plant shut-
down, Harvey could not recall questioning the employees about their having "vis-
itors" or "company" in their home and stated generally she never spoke to Barnes
about the Union. Thelma McNabb testified she never heard Harvey talking about
the Union. She indicated that Barton was seated at the next table about 8 feet away
from her, that the machines were noisy, and that it was possible for her not to hear
Harvey talking to girls at the next table. In all the foregoing circumstances, I credit
the testimony of Liston , Barnes, and Barton.15
Coise Wiggins, a paid organizer for the Union, testified concerning alleged surveil-
lance by Eddie Whipple of a union meeting of the plant employees in the evening
of May 9. The meeting was held at the hall of the Veterans of Foreign Wars (VFW)
located a distance from the town of Bonham at a junction of Highways 82 and 121.
She stated that she was standing on the porch of the VFW hall about 5 p.m. and
observed Eddie Whipple alone in a 1956 Ford Crown Victoria which was painted
bright red. He was drivingly slowly on Highway 82, in the direction from town, and
turned on Highway 121, all the while looking toward the VFW hall, which was
200 to 250 yards from either highway. About 15 minutes later, Wiggins was still
or again standing on the porch and observed Eddie Whipple in the same manner
making a return trip toward town. Eddie Whipple testified that he left the plant
12 Lucy Smith was not called to testify.
13 Lila Brown, Lillie Green, Martha Harris, Kay Hilliard, Geneva Farrell, Irene Wiler-
son, and Thelma McNabb. None of these, except McNabb, was called to testify.
14 Supervisor Helen Green similarly testified that "we just told them without work we
couldn't operate," but that she knew of no (economic) circumstances at the time which
could have motivated making these remarks to the employees.
is I found Supervisor Harvey an unconvincing witness who appeared to avoid giving
specific testimony concerning conduct relating to the Union.
681-492-63-vol. 140-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at 4:30 p.m. that day together with his twin brother, Freddie Whipple,is and pro-
ceeded in Eddie's car directly to the home of Freddie and his wife , Jo Nell, where
he stayed for supper , as was his custom. He did not leave his brother 's home until
6:15 or 6:30 p.m., after the supper meal, when he drove home to Whitewright,
along the route described by Wiggins, and did not come back that day. His car on
May 9 was a 1956 Ford Crown Victoria but the color was all white. It was white
when purchased and remained that color until May 19, when he painted it bright red
at the home of Freddie and Jo Nell 17 In all pertinent details, Freddie and Jo Nell
corroborated Eddie's testimony. No corroboration was offered of Wiggins' testi-
mony. Particularly in view of the discrepancies in Wiggins' version as to the color
of Eddie's car and the time he passed the VFW hall, I credit Eddie's denial in effect
that he had engaged in the surveillance alleged.
E Concluding findings
In the following conduct, I find that Respondent engaged in interference, restraint,
and coercion in violation of Section 8 (a) (1) of the Act:
1. Coercive interrogation-by (a) Eddie Whipple questioning Wooley if he was
for the Union, where the union meeting was held, and did he hope the election was
going for the Union; and (b) by Harvey inquiring of employees, as testified by
Liston, Barnes and Barton, whether they had "visitors" or "company" from the
Union
2. Creating an impression of surveillance-by (a) the conduct indicated in 1(b),
above; and (b) by Green's statements to Banks that President Foster was watching
her and knew what she was doing.
3. Promise of substantive benefit-made by Briscoe to Burk
4. Threats of plant closing, loss of work, or other reprisal-made by Green to
Banks, Briscoe to Burk, Clement to Burns, Eddie Whipple to Wooley, and Harvey
to Liston , Barnes, and Barton.
Within the allegations in the Union's objections, I also find that the conduct of
Supervisor Harvey constituted interference affecting the results of the election.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in con-
nection with the operations of Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1) of the Act, I will recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. It has also been found that Respondent inter-
fered with the election conducted on May 10, 1962. I will therefore recommend that
the election be set aside and another be conducted at such time as may be
appropriate.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the cases , I make the following-
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act
3 By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
' Eddie and Freddie are 20 years of age and closely resemble each other Wiggins, who
said Eddie was a little larger than Freddie and "has a very hard look about him"-a
characteristic which escaped the Trial Examiner-was able in the courtroom to dis-
tinguish Eddie from Freddie, both similarly attired However, I attach no weight to such
Identification
17 Eddie repainted the car white after he got married on June 18 , because his wife did
not like the car in bright red
WALGREEN CO. 1141
4. By certain of the aforesaid unfair labor practices committed prior to the
Board election, Respondent has interfered with and illegally affected the results of
the Board election held on May 10, 1962.
5. The aforesaid conduct constitutes conduct affecting commerce within the mean-
ing 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 the cases, I recommend that Respondent, Bonham Manu-
facturing Company, Inc., Bonham, Texas, its officers, agents, successors, and assigns,,
shall:
1. Cease and desist from:
(a) Interrogating employees in a manner constituting interference, restraint, or
coercion; threatening employees with closing down the plant, loss of jobs, or other
reprisals on account of their union activities; promising employees benefit to in-
fluence their vote in a Board election or induce antiunion activities; or creating an im-
pression among the employees that their union activities are under surveillance.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Post at its Bonham, Texas, plant, copies of the attached notice marked
"Appendix." 18 Copies of said notice, to be furnished by the Regional Director
for the Sixteenth Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof, and be maintained for a period of 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps Respondent has taken
to comply herewith.19
It is further recommended that the election conducted in a unit of Respondent's
employees on May 10, 1962, be set aside and a new election directed at an ap-
propriate time.
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
18 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
19 In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
Walgreen Co . and Ice Cream , Frozen Custard Industry, Em-
ployees, Drivers, Vendors and Allied Workers Union, Local
No. 717, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner . Case No. 13-I?C-8281. February 7, 1963
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted by the Regional Director
140 NLRB No. 121.