Dal-Tex Optical Co., Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1961

130 N.L.R.B. 1313 (N.L.R.B. 1961)

DAL-TEX OPTICAL COMPANY, INC. 1313
4. The Union was, on June 2, 1959 , and at all times since has been , the exclusive
representative of all employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union on and after June 4, 1959 , the Respond-
ents have engaged in unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. By interfering with , restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
unfair labor practices within the meaning of Section 8 ( a) (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7 ) of the Act.
[Recommendations omitted from publication.]
Dal-Tex Optical Company, Inc. and International Union of
Electrical , Radio and Machine Workers, AFL-CIO . Cases Nos.
16-CA-1325 and 16-RC-.571. March 14, 1961
DECISION AND ORDER
On October 1, 1960, Trial Examiner Henry S. Sahm issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further found
that the Board-directed election in Case No. 16-RC-2571 should be set
aside. Thereafter, the Respondent filed exceptions to the Interme-
diate Report.
Pursuant to the provision of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the
i In its exceptions , Respondent contends that the Trial Examiner erred in not finding
that certain procedural objections made by it during the course of the hearing were meri-
torious. In substance , Respondent's contentions in this regard are as follows - ( 1) That
there is a fatal variance between the charge and the complaint ; ( 2) that it was im-
proper to consolidate the representation case with the complaint case in this proceed-
ing; (3 ) that its motion for a bill of particulars should have been granted; and
(4) that its request for a continuance should have been granted. As to ( 1), the charge
alleged that Respondent violated Section 8(a) (1) and ( 3) of the Act by discriminatorily
discharging certain named employees . It further alleged that by the acts set forth, and
"by other acts and conduct , it, by its officers , agents, and employees , interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act." The complaint is limited to allegations of independent Section 8(a) (1)
violations . As it is clear that the allegations of the complaint grew out of and were a
part of the same fact situation which gave rise to the charge , we find no merit in this
contention. See N L R.B. v. Font Milling Company, 360 US 301 ; N.L.R B. v. Kohler
Company, 220 F. 2d 3 ( C.A. 7). As to ( 2), the complaint contains allegations of Sec-
tion 8 ( a) (1) conduct which would have a direct bearing upon the validity of the prior
election. In such circumstances , we believe the Regional Director acted properly in con-
130 NLRB No. 142.
597254-61-vol. 130-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report, the exceptions, and the entire record in this pro-
ceeding, and hereby adopts the findings, conC1US1Ons,2 and recommen-
dations I of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Dal-Tex Optical
Company, Inc., Dallas , Texas, its officers, agents , successors, and as-
signs, shall:
1. Cease and desist from :
(a) Threatening employees if they vote for the Union and promis-
ing them benefits if they vote against the Union.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist International Union of
Electrical , Radio, and Machine Workers, AFL-CIO, or any other
labor organization , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at Respondent 's plant at Dallas , Texas, copies of the
notice attached hereto marked "Appendix A." 4 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall , after being signed by Respondent 's representative,
be posted by the Respondent 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 customari-
ly posted. Reasonable steps shall be taken by Respondent to insure
solidating the cases for hearing . Cf. Atlantic Mills Servicing Corporation of Cleveland,
Inc., 120 NLRB 1284. As to (3), we note that the complaint describes the nature of the
activity, the dates , and the names of the agents through whom Respondent allegedly vio-
lated the Act . Therefore , we believe the Trial Examiner properly refused to grant Re-
spondent 's motion for a bill of particulars . See Walsh-Lumpkin Wholesale Drug Company,
129 NLRB 294 . As to ( 4), the question of whether a continuance is to be granted and
the extent of it is a matter within the sound discretion of the Trial Examiner . We per-
ceive no abuse of that discretion in this proceeding . See Beard Plumbing Company,
128 NLRB 394.
2 As it is unnecessary to our decision , we do not pass upon the Trial Examiner's con-
elusion that Respondent would have been responsible for Banks ' conduct if Banks were
not a supervisor.
sin view of the limited nature of the violations here found , we find merit in the Re-
spondent 's exceptions to the breadth of Section 1(b) of the Trial Examiner 's recommended
order and shall limit our Order accordingly. -
4In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an, Order."
DAL-TEX OPTICAL COMPANY, INC. 1315
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 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER. ORDERED that the election held on October 30, 1959,
among the production and maintenance employees of the Respondent
be set aside and that Case No. 16-RC-2571 be remanded to the afore-
mentioned Regional Director for the Sixteenth Region for the pur-
pose of conducting a new election .at such time as he deems that cir-
cumstances permit the free choice of a bargaining representative.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT threaten our employees if they vote for the Union
or promise raises in pay and benefits if they vote against the Inter-
national Union of Electrical, Radio and Machine Workers, AFL-
CIO.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or assist
any labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities.
All of our employees are free to become or remain, or to refrain
from becoming or remaining, members of any labor organization. We
will not discriminate in regard to hire or tenure of employment,
against any. employee because of membership in, or activity on behalf
of, any labor organization.
DAL-TEX OPTICAL COMPANY, INC.,
Employer.
Dated-----'----------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted'for 60 days from the date hereof,
and must not- be altered, defaced, or covered by any other material.
.INTERMEDIATE REPORT
STATEMENT OF THE CASE
On August 3, 1959 , the International Union of Electrical , Radio and Machine
Workers, AFL-CIO, herein called the Union , filed with the National Labor Relations
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, herein called the Board, a petition under Section 9(c) of -the Act in Case No.
16-RC-2571 for certification of representatives for the production and maintenance
employees of Dal-Tex Optical Company, Inc., herein called the Respondent.
A representation hearing on the Union's petition was held in Dallas, Texas, on
September 11, 1959, before a hearing officer of the Board. Thereafter, the Board on
October 7, 1959, directed that an election be held among all production and mainte-
nance employees of the Respendent to determine whether they desired to be repre-
sented by the Union for the purposes of collective bargaining. Pursuant thereto,
an election by secret ballot was conducted on October 30, 1959. At the election, a
majority of the votes was cast against the Union.' On November 5, 1959, the Union
filed objections to the election.
Thereafter, on December 11, 1959, the Regional Director for the Sixteenth Region
issued his report on objections to the election, in which he recommended that the
Board should set aside the election and a new election conducted. Exceptions were
filed on December 18, 1959, by the Respondent to the Regional Director's report. On
March 1, 1960, the Board by a supplemental decision ordered that a hearing be held
with respect to the objections to the election filed by the parties.
Meanwhile, on January 26 and February 8, 1960, the Union filed with the Regional
Director charges against the Respondent in Case No. 16-CA-1325. Upon these
charges, the General Counsel issued a complaint dated March 7, 1960, against the
Respondent alleging that the Respondent was engaging in unfair labor practices
affecting commerce within the meaning'of Section 8(a)(1) of the National Labor
Relations Act, 61 Stat. 136, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleged in substance that
the Respondent through certain named supervisors "threatened employees with loss of
employment because of union activity"; "threatened employees that union member-
ship would result in automatic termination of their jobs," and "promised employees
they would receive economic benefits if they would not vote for the Union."
Simultaneously with the issuance of the complaint, the Regional Director issued
an order consolidating the hearing on the complaint in Case No. 16-CA-1325 with
the hearing on the objections to the election in Case No. 16-RC-2571. Copies of
the charge, complaint, order of consolidation, and notice of hearing were duly served
upon the parties. The Respondent filed an answer admitting the jurisdictional allega-
tion of the complaint.with respect to commerce but denying the commission of any
unfair labor practices.
Pursuant to notice, a consolidated hearing was held at Dallas, Texas, on April 25
and 26, 1960, before Henry S. Sahm, the duly designated Trial Examiner. All parties
were represented by counsel and were afforded full opportunity to participate in the
hearing, to introduce relevant evidence bearing on the issues, to argue orally upon the
record, and to file briefs and proposed findings of fact and conclusions of law.
Neither of the parties filed briefs.
Upon the entire record in the case, upon consideration of the arguments and
motions of counsel, and from observation of the demeanor of the witnesses while
testifying, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation, employing approximately 250 people, is en-
gaged in the manufacture, sale, and distribution of wholesale optical goods. During
the year 1959, which period is representative of all times material hereto, Respondent
purchased products valued in excess of $50,000, of which more than $50,000 worth
was shipped in interstate commerce to its Dallas plant from points outside the State
of Texas. During the same period, Respondent sold products consisting principally
of optical goods, valued in excess of $50,000, of which more than $50,000 worth was
shipped in interstate commerce from its plant to points outside Texas.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
'There were approximately 191 eligible voters ; 184 cast valid votes of which 88 were
for the Union, 96 against the Union, and 5 were challenged.
DAL-TEX OPTICAL COMPANY, INC. 1317
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
On October 7, 1959, the Board directed that an election be held on October 30,
1959, among the production and maintenance employees of the Respondent to deter-
mine whether they desired to be represented by the Union. Between these two dates,
it is alleged, employees were threatened with loss of jobs because of union activity and
promised economic benefits if they would not vote for the Union. The question
here presented is whether the Respondent has engaged in conduct which interfered
with the employee's freedom of choice in the election within the meaning of Section
8(a)(1) of theAct2
B. Background and chronology of main events
Beulah Whitworth, who was employed by Respondent from November 6, 1958, to
October 28, 1959, testified that while seated at her workbench in the stock depart-
ment, alongside of her coworkers, Leona Hiatt and Frances Alien Bledsaw, during
the first week in August 1959, Cornelia Banks, her "supervisor" came over to where
they were working and spoke to them. At that time, according to Whitworth, Banks
said that:
Mr. Greenberg [president of Respondent] had told her to tell the girls that any-
one that joined the Union, that if it went union and went on strike that they
would be automatically terminated. . She said that Mr. Greenberg told her
to tell us that the employees that were loyal to the Company would be taken
care of. . She also told us that StyleRite [an optical company] had voted
against the Union, and she also told us that our benefits, we would lose them if
it went union.
Whitworth also testified that Banks, Consuela Lopez (Banks' assistant), and
Tommy DeForest, an employee,
... would sit in a group and talk loud enough against the union to where the
employees could hear it, but not directly to any person. [They would
say] that anyone that joined the union were doing the wrong thing, that they
would be sorry of it. That the company would be good to the people that
didn't join the union. That if we joined the union or that if the employees did
join the union, that they were doing theirself harm instead of good. . . . [They
said these things] the first week or so after the first union pamphlet was handed
out. . . [They said it] every day. There was never a day went by from the
time that the union handed out the first pamphlet until I was terminated, [Octo-
ber 28] that they didn't do this.
Frances Alien Bledsaw, who was employed by Respondent in the stockroom
from November 1958 to October 30, 1959, testified that about 2 months before the`
election, Banks said to Whitworth, Hiatt, and herself:
A. . . that if we were loyal to the Company that we would be well taken
care of, if we didn't vote for the union.
Q. Did she say anything else?
A. Not at that particular time other than if we did stay loyal to the company
we would be taken care of; if we didn't, that we would be replaced.
g The relevant provisions of the National Labor Relations Act, as amended (61 Stat.
136, 29 U.S.C., Secs. 151, et seq.), are as follows:
RIGHTS OF EMPLOYEES
SEc. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in section 8(a) (3).
UNFAIR LABOR PRACTICES
SEc. 8. (a) It shall be an unfair labor practice for an employer-
(1) to Interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7;
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
On cross-examination the following colloquy occurred between Bledsaw and
Respondent's counsel:
Q. And if you weren't loyal to the Company what?
A. You would be replaced.
Q. If you went out on strike?
A. No. If we voted for the union.
Willis McNeely, who was employed by the Respondent at the time of the hearing,
testified that his supervisor, Shaw Green,3 spoke to employees Jesse Whittaker,
Charles Thompson, Edward Austin, James Crane, Gene Hill, and himself the week
before the election. He told them, according to McNeely, that K. D. Farris [an
employee] and McNeely were "on a blackball list" because they had not attended
a party given by one Vera.Roberts for Respondent's colored employees on October
25, 1959, 4 days before the election. It appears from the testimony that Farris' and
McNeely's absence from this party was construed to indicate they were prounion.
McNeely testified that Green, his supervisor, said:
Mr. Pearle [Respondent's vice president] said that [Farris] and I, if we didn't
watch our step that we would get fired if he found out anything, if he found out
we were for the union. . . . Said if he found out we were for the union, liked
union in any way he was going to fire us. He was going to find some means
of getting rid of us. He said it might take a day, it might take a year, but he
would find some way of getting rid of us.
Respondent's counsel asked McNeely the following questions:
Q. You mean [Green] was trying to find our from you whether you were
for the union or not?
A. For the union or not.
Q. Mr. Green didn't tell you that time that if you belonged to the union or
voted for the union he was going to fire you if it took a day or a year?
A. He said Mr. Pearle said that they would find some means of getting rid
of us.
Q. If you belonged to the union?
A. If he found out we were for the union.
Billy Rogers McNeely, who was employed by Respondent at the time of the
hearing, testified that about 2 weeks before the election, Shaw Green said to him:
that Mr. Pearle had the names of five or six of us guys who was, employed
at Dal-Tex, . he would find something to fire us for if the union won the
election, even if it was for throwing paper on the floor or for something of that
matter, and it wouldn't be hard for him to do seeing that he was vice-president
of the company.
Charles Thompson, who was employed by Respondent at the time of the hearing,.
testified that the week before the election, Shaw Green, his supervisor, spoke to•
Willis McNeely, James Crane, K. D. Farris, Edward Austin, and himself. Accord-
ing to Thompson, Green said:
Mr. Pearle had told him to pick among the guys and find out what we thought
of the union and to find out if we were for the union or not and if we was for
the union we would be fired, meaning to get rid of us if he found out we were
for it.
Shaw Green, supervisor of the mailing department, testified that Pearle, vice presi-
dent of Respondent, called him into his office sometime during the week before the
election. Shaw testified that Pearle told him that he was doubtful about Jesse Whit-
taker, Willis McNeely, and Billy Rogers McNeely. Green's testimony continues as
follows:
Well, he told me to work on them and sell the company to them, and tell them
that one way or the other if we lost, well, we would find some way to get rid
of them. I asked him at that time did he want me to tell them that, and he
said, "yes, tell them those exact words"; so that's what I did. I done what I
was told to do.
Green also testified that Maury Stein, who, it was stipulated, is a supervisor, told
him the morning before the election to talk to Curtis Anderson, an employee. Green
8It was stipulated that Green is a supervisor within the meaning of Section 2(11) of
the Act.
DAL-TEX OPTICAL COMPANY, INC. 1319
testified, "I told him [Anderson] that the company-Mr. Stein knew he had went to
the union meeting the night before and the Company did him a favor, they was ex-
pecting his vote . . and that he was going to get rid• of him one way or the other
if he didn't go for the company."
It is against this testimony that we approach the Respondent Company's denial
of the above testimony adduced by the General Counsel. Cornelia Banks, whom
Respondent denies is supervisor of the stock department, stated that she never dis-
cussed the Union or union activities with Beulah Whitworh, Frances Alien Bledsaw,
or any other employee prior to the election. Banks also denied that she ever had
a conversation with Whitworth in August 1959 in which she told her Greenberg,
Respondent's president, said that if the employees went on strike their employment
would-be terminated, but if they were loyal employees, the Company would take
care of them if they voted against the Union. Whitworth also denied she told em-
ployee Bledsaw that loyal employees would be taken care of by the Company but
if they were not, they would be fired.
C. Discussion
The first question to be considered is whether the alleged statements detailed above
constituted interference or coercion in violation of Section 8(a)(1). The test is
whether the conduct charged was reasonably calculated to interfere with the em-
ployees' free choice as to whether they desired to be represented by the Union for
the purpose of collective bargaining? Interference, restraint, or coercion is not
measured by the employers' intent or the effectiveness of his action, but rather by
whether the conduct is reasonably calculated, or tends, to interfere with the free
exercise of employees' rights under the Act.5
The language and legislative history of Section 8(a)(1) show that Congress in-
tended in banning "interference" to proscribe any employer activity which would tend
to limit employees in the exercise of their statutory rights. The key to interpreta-
tion of Section 8(a)(1) is the purpose of the Act as expressed in the preamble: to
preserve to employees an atmosphere in which they have full freedom of choice
with respect to collective bargaining and the designation of a bargaining representa-
tive. Inherent in the very nature of the rights guaranteed by Section 7 is the con-
comitant right of full freedom from employer intermeddling. Employees have as
clear a right to organize and select their representatives for lawful purposes as the
employer has to organize its business and select its own officers and agents.
The law must now be regarded as well settled that promises of benefit are at least
as efficacious as threatened detriment when attempting to discourage union activity.
One of the purposes of the Act is to insure that employees shall have a free choice
as to the question of their representation in negotiating with an employer.6 This,
of course, does not preclude the employer from stating his views as to whether or
not the employees should join the Union. But employers still may not under the
guise of merely exercising their right of free speech, pursue a course of conduct
designed to restrain, coerce, and interfere with their employees in the exercise of
rights guaranteed them by the Act. The Act does not preclude an employer from
introducing benefits during an organizational period. But when the employer uses
proposed benefits as an inducement not to join the union, his activity bears no
shield of privilege. It constitutes a promise of benefits as an alternative to union
affiliation. For interference is no less interference because it is accomplished
through allurements rather than coercion. Such action minimizes the influence of
organized bargaining. It interferes with the right to self-organization by empha-
sizing to the employees that there is no necessity for a collective-bargaining agent .7
By its well-timed promises on the eve of the election to those who would remain
"loyal," the Respondent sought to convince its employees that they could rely upon
it for economic advantages thereby minimizing the need for a collective-bargaining
agent . The effect of such an object lesson in the futility of self-organization upon
the employees -in the exercise of their right to select a bargaining representative,
needs little elaboration.8 These activities detailed above created an atmosphere
4N.L.R.B. v. Wilbur H. Ford d/b/a Ford Brothers, 170 F. 2d 735, 738 (C.A. 6).
5 Dixie Shirt Company, Inc., 79 NLRB 127, 128.
O There was no evidence produced by the General Counsel with respect to Respondent's
officers' speeches to employees or election material distributed to them which can be con-
sidered a violation of Section 8(a) (1).
7Joy Silk Hills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.), enfg. 85 NLRB 1263,
341 U.S.'914, cert. denied. See Kohler Co., 128 NLRB 1062.
8 May Department Stores Company v. N.L.R.B., 326 U.S. 376.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which made improbable a free and untrammeled expression by the employees at the
election on October 30.9
Because of the economic power of an employer over his employees, statements
made by an employer may influence employees far more than they would in the
absence of the employer-employee relationship. Manipulation of the employee's
statutory rights as a reward for union hostility is the most direct and effective type of
interference open to the employer. This is particularly true, where, as in this case,
all of the witnesses who testified, except two, were still employed by the Respondent
at the time of this hearing. While the constitutional right of free speech protects
an opinion on labor matters, it does not grant a license to impair employee rights in
violation of the Act.10
Similarly, enticing employees by holding out benefits to those that are "loyal"
is not an expression of "views, arguments, or opinion" within the meaning of
Section 8(c) of the Act, but a verbal act whose legality under Section 8(a)(1) is
determined without reference to Section 8(c).11
By holding out hope of reward to those who would remain "loyal" and oppose
the Union, the Respondent interfered with the conduct of the election on October 30,
1959, so that the employees were not afforded that freedom of choice which the
Act contemplates.12 As the Board has held: "In election proceedings, it is the
Board's function to provide a laboratory in which an experiment may be conducted
under conditions as nearly ideal as possible, to determine the uninhibited desires
of the employees." General Shoe Corporation, 77 NLRB 124. It is found, there-
fore, that the election was conducted under such circumstances as not to reflect the
free and untrammeled choice of the employees and it will be recommended that'it
be set aside.
The question of whether the Act has been violated requires not only an appraisal
of the particular conduct, which has been described above, but also a determination
of whether the Respondent Company is liable for the statements made by Cornelia
Banks to employees Whitworth and Bledsaw.
The Trial Examiner agrees with the General Counsel's contention that Banks was
a supervisor within the meaning of Section 2(11) of the Act, so as to make the
Respondent liable for Banks' conduct. Section 2(11) of the Act 13 is to be inter-
preted in the disjunctive and the possession of any one of the powers listed in that
section is sufficient to place the employee in the supervisory class. N.L.R.B. v. Ed-
ward G. Budd Manufacturing Co., 169 F. 2d 571, 576 (C.A. 6), cert. denied 335
U.S. 908.
Beulah Whitworth, an employee of Respondent when the alleged unfair labor
practices occurred, testified she was interviewed and instructed in her duties by
Banks, recommended by her for an increase in wages, and she stated that Banks
is the "supervisor." When Whitworth was discharged, it was Banks who took her
to the personnel office. Bledsaw, who worked in the same department as Whitworth,
under Banks, testified that her "supervisor" was Banks. Bledsaw testified that Banks
instructed the employees "how to fill stock orders"; recommended raises in pay as
well as discharges. It was also elicited from Banks that most of the supervisors
have their names stenciled on their smocks and that her smock has her name im-
printed upon it. In addition, Banks attended supervisors' meetings and her right to
vote in the October 30 election was challenged.
On direct examination, Banks testified as follows:
Q. Do you have anything to do with reprimanding or firing of employees
in that department?
9 The Pure Oil Company, 73 NLRB 1, 11.
10 The Bailey Company, 75 NLRB 941.
11 Minnesota Mining & Manufacturing Company, 81 NLRB 557, enfd. 179 F. 2d 323
(C.A. 8) ; Spengler-Loomis Mfg. Co., 95 NLRB 243. See George V. Hussman, Jr. d/b/a
Gulfport Transport Co., 84 NLRB 613; International Union of Electrical, Radio and
Machine Workers, AFL-CIO v. N.L.R.B., 46 LRRM 2534, 2538 (C.A.D.C.).
12 Thirteenth Annual Report of the National Labor Relations Board at page 50.
19 SEC. 2. When used in this Act-
• i
*
♦ t
* *"(11) The term `supervisor' means any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment."
DAL-TEX OPTICAL COMPANY, INC. 1321
A. Well, to actually fire them, no, but if they don't do their job, well, I tell
Mr. Adair that they can't do it, and if he sees fit to fire them he will.
Q. What is your relationship to those twenty people [in the shipping,
department] ?
A. They more or less look up to me to make a decision . How to fill an
order, if the order is right. If they don't know anything about it they will
come and ask me, and if I don't know I send them to [Adair].
It was also elicited on cross-examination that Banks assigned employees to.
particular jobs. The following is Banks' testimony on this:
Q. How would [Whitworth] happen to work at the Lee table when shei
didn't have anything else to do?
A. She came up and asked me or told me that she was out of work and
didn't have anything to do.
Q. She came up and asked you what to do didn't she?
A. Uh-huh.
,On cross-examination, Banks also admitted, after first denying it, that it was she.
who regularly assigned and distributed to the employees in the shipping department
the orders which were to be filled. The highest wage scale in the shipping depart-
ment was received by Dan Adair and the second highest by Banks. Whether Adair
actually worked in the shipping department, in the sense of being physically sta-
tioned there, is not clear from the record.
Finally, Banks' demeanor and deportment on the witness stand was such, in, that
she was equivocal, evasive, and fenced with counsel, that little credence is placed
upon her ' testimony, whereas Whitworth's and Bledsaw's testimony, in conjunction
with the entire background of evidence adduced in this case, and for the reasons
stated above, merits belief and it is so found. Curtis Anderson, Willis McNeely,
Billy Rogers McNeely, and Charles Thompson impressed the trier of these facts.
as not being intelligently capable of successfully practicing guile or deceit. This
impression that they were testifying truthfully became a conviction when their testi-
mony was found to be both consistent with the attendant circumstances in this case=
and not substantially shaken by able counsel for the Respondent who cross-examined
them.
Argumentatively assuming that Banks was not a supervisor, employers are re-
sponsible, nevertheless, for the conduct of a rank-and-file employee where the em-
ployer knew of the unlawful conduct but failed to disavow it or disassociate himself
therefrom 14 or where the attitude or acts of the employer appeared to endorse such
conduct.15 In this case, the alleged statement threatening employees if they voted
for the Union, attributed to Greenberg by Banks which Whitworth and Bledshaw-
testified to, was not denied by Greenberg in his testimony. Under such circum-
stances, it would appear that Banks had apparent authority to repeat Greenberg's•
alleged threats and employees Whitworth and Bledsaw to whom Banks spoke,.
having in mind Banks' "supervisory" status, had no reason to doubt that she had
authority to repeat what Greenberg allegedly told Banks.16
Similarly, the Board has held the employer liable for the conduct of an em-
ployee who is technically not a supervisor, but who has been expressly authorized'
by the employer to act as his agent, with the attributes of a representative of man-
agement, and is reasonably regarded as such by the employees.17
Against this fact. pattern of what occurred prior to the election, coming as it did
in the initial stages of organizational activity, the conclusion is inevitable, based upon
credited and unrefuted testimony, that Respondent's efforts to exonerate itself from
a finding of unfair labor practices are singularly unimpressive, because it is now well'
settled that threats and inducements to employees to have them forgo collective-
bargaining is a form of pressure and compulsion violative of Section 8(a)(1). Fur-
thermore, implicit in the Respondent's promise "to take care of" the "loyal" employ-
14 Earl B. Law et al. d/b/a E. B. Law and Son, 92 NLRB 826, 192 F. 2d 236 (C.A. 10).-
See Jaques Power Saw Company, 85 NLRB 440.
15 Samuel Flatau d /b/a Yale Filing Supply Co ., 91 NLRB 1490. See Otis L. Broyhill'
Furniture Company, 94 NLRB 1452.
19 Drico Industrial Corporation , 115 NLRB 931. See also Hardware Engineering Com-
pany, Inc., 117 NLRB 896, 905 ; Liberty Coach Company, Inc., 128 NLRB 160.
17 Red Arrow Freight 'Lines, Inc., 77 NLRB 859, enfd. 1180 F. 2d 585 (C.A. 5) : Inter=
national Association of Machinists, Tool and Die Makers Lodge No. 35 v. N.L.R:B'.,.
311 U.S. 72, 80.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees was the suggestion that the employees vote against having a union and thus
abandon their efforts at self-organization . It was an offer of a benefit to the
employees in return for their working at cross-purposes with the Union 's organiza-
tional campaign.
D. Conclusions with regard to interference , restraint , and coercion
It is found that the Respondent interfered with , restrained , and coerced its em-
ployees by the following acts:
(1) Banks telling Whitworth and Bledsaw that Greenberg , president of Respond-
ent, said that all employees favoring the union in the impending election would be
terminated and those remaining "loyal" to Respondent "would be taken care of."
This illegal conduct interfered with the conduct of the election on October 30,
thereby depriving the employees of the freedom of choice contemplated by the Act.
(2) Banks' conversations with Lopez and DeForest occurring in the immediate
hearing and presence of Whitworth violated Section 8(a)(1).
(3) Shaw Green telling Willis McNeely, Billy Rogers McNeely, Charles ,Thomp-
son, and Curtis Anderson that if the Union won the election, they would be
discharged.
(4) These strategically timed threats and promises created an atmosphere which
made improbable the untrammeled freedom of choice in the election which the Act
contemplated and which the Board is obligated to maintain.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
2. International Union of Electrical, Radio, and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, as detailed above, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1)oftheAct.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The Dayton Rubber Company and John E. Watson. Case No.
9-CA-016. March 15, 1961
DECISION AND ORDER
On May 18, 1960, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
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 [Members Rodgers, Jenkins, and
Fanning].
130 NLRB No. 140.