Douglas and Lomason Co.

National Labor Relations Board - Board Decisions

Mar 12, 1965

151 N.L.R.B. 616 (N.L.R.B. 1965)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Douglas and Lomason Company and International Union , United
Automobile, Aerospace and Agricultural Implement Workers
of America , AFL-CIO. Case No. 10-CA-5581. March 12, 1965
DECISION AND ORDER
On September 30, 1964, Trial Examiner Sidney S. Asher, Jr.,
issued his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending dismissal of the complaint
in its entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Party filed ex-
ceptions to the Trial Examiner's Decision with supporting briefs,
and the Respondent filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown and Jenkins].
The Board haz, 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
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this proceeding, and hereby adopts the findings, con-
clusions, and recommendation of the Trial Examiner. Accordingly,
we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dismissed in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On January 10, 1964, International Union, United Automobile , Aerospace and
Agricultural Implement Workers of America, AFL-CIO, Atlanta, Georgia, herein
called the Union , filed charges against Douglas and Lomason Company , Newnan,
Georgia , herein called the Respondent . On March 2 , 1964, the General Counsel 1
issued a complaint, to which the Respondent filed an answer.`' On April 29, 1964,
the General Counsel issued an amended complaint alleging that on or about Decem-
i The term General Counsel as used herein refers to the General Counsel of the
National Labor Relations Board and his representative at the hearing.
2 The Respondent filed a motion for a more definite statement, and the General Counsel
filed a response This motion was denied by Trial Examiner Joseph I . Nachman.
151 NLRB No. 69.
DOUGLAS AND LOMASON COMPANY 617
her 5, 13, and 15, 1963, the Respondent threatened its employees with economic
and other reprisals in the event the Union was successful in its organizational cam-
paign; and that on or about July 12, 1963, the Respondent discharged and thereafter
failed and refused to reinstate its employee, Aubrey L Adams, because of his mem-
bership in and activities on behalf of the Union, and because he engaged in con-
certed activities. It is alleged that this conduct violated Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended (61 Stat. 136), herein called the
Act. The Respondent filed an answer admitting certain jurisdictional facts and
admitting that it discharged Adams on or about July 12, 1963, and thereafter failed
and refused to reinstate him, but denying the commission of any unfair laboi practices.
Upon due notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on June 2 and 3, 1964, at Newnan, Georgia. All parties were represented and par-
ticipated fully in the hearing. After the close of the hearing, all parties filed briefs,
which have been duly considered
Upon the entire record in this case, and from my observation of the witnesses, I
make the following.
FINDINGS OF FACT
The complaint alleges, the answer admits, the Board has found,3 and it is now
found that the Respondent is, and at all material times has been, engaged in com-
merce as defined in the Act, and its operations meet the Board's jurisdictional stand-
ards; 4 and that the Union is, and at all material times has been, a labor organization
within the meaning of the Act.
A. The dischaige of Adams
1. Adams' employment history
Aubrey L. Adams was first employed by the Respondent on January 11, 1963, in
the buffing and finishing department of the Newnan plant, on the day shift. His
immediate superior was Edward B. Morris, foreman of that department.5 On Feb-
ruary 19 6 Adams and five other employees were given 30-day disciplinary layoffs
for gambling in the plant This fact was entered on Adams' personnel record. Adams
returned to work on March 23.
On April 29 Alton Frank, plant manager of the Newnan plant, observed Adams
operating a sanding machine without wearing safety goggles over his eyes 7 Frank
sought Morris and told him to warn Adams that the next time he was caught sand-
ing without goggles over his eyes he would be subject to dismissal Morris went to
Adams and told him that he would have to wear goggles when sanding 8 Adams
complied and wore goggles over his eyes. Morris reported to Frank that Adams
had been reprimanded. Frank noted the incident on Adams' personnel record.
On May 29 Adams was late for work after several days of absence. Frank repri-
manded him for his poor attendance record and noted the reprimand on his person-
nel record. According to this record, prior to that time Adams had been absent
211/2 days and late once in a total of 82 days of work available to him, for an absen-
tee rate in excess of 25 percent.
3 Douglas and Lomason Company, 142 NLRB 320, enfd 333 F. 2d 510 (C A 8)
4 The Respondent is, and at all material times has been, a Michigan corporation, with
an office and place of business at Newnan, Georgia, where It is engaged in the manufac-
ture of chrome trim for automobiles During the 12 months ending April 29, 1964, the
Respondent shipped goods valued at more than $50,000 from its plant at Newnan,
Georgia, directly to destinations outside the State of Georgia.
GAdams testified that, about 2/ or 3 months later, he was transfeired to the press
department (also referred to in the record as the machine department) under the super-
vision of Jack Brown, foreman. Morris testified that Adams had never been transferred
out of the buffing and finishing department. I deem it unnecessary to resolve this conflict
e All dates hereafter refer to the year 1963, unless otherwise noted
a Frank testified that Adams' goggles were "on top of his head" Adams testified that
he did not have any goggles and had to obtain a pair after the reprimand I do not
consider it necessary to make a finding in this regard
9 Morris testified that he added that "if he was caught without having them on again
when he was sanding, he would be discharged." Adams, while admitting the reprimand,
denied that Morris added any such warning I deem it unnecessary to resolve this
conflict.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After May 29 Adams was absent 23/4 days and late once in a total of 27 days in
which work was available , for an absentee rate of approximately 10 percent9
2. Adams' union activities prior to his discharge
Early in May Adams and Randall Harrison , a fellow employee , wrote a letter to
Walter Reuther , president of the Union . On July 2 James R. Weaver, an agent of
the Union , met with Harrison and Adams at Harrison 's house, gave them some
blank union authorization cards, and discussed with them methods of organizing the
employees of the Respondent 's Newnan plant . 1° Adams signed a card himself a few
days later. The Newnan plant was on vacation at this time, nevertheless Adams
obtained four signed cards from other employees outside the plant . On July 8 the
plant resumed operations . During the next 5 days (July 8 through July 12) Adams
campaigned for the Union at the plant during nonworking time and in this manner
received from employees 23 additional signatures on authorization cards. During
the same 5 days, after working hours , Adams rode with Weaver in Weaver 's car to
the homes of other employees and succeeded in obtaining 18 more signed cards,
making a total of 45 cards from other employees . Approximately 40 additional
signed cards were obtained on or before July 12 by Harrison and others.
3. Adams' discharge
On July 12 Adams reported for work at approximately 7 a.m., his normal report-
ing time. About 15 minutes later 11 Jack Brown, a foreman , directed Adams to go
to the buffing department 12 Adams went to the buffing department , where he was
assigned to a particular type of buffing machine known as the "whirly-bird." 13
9 Broken down by months , Adams' record shows:
Month Total days
available
Absent Late
January_________________ 1s 6 i 0
February 14 13t 1
March ----------------- 7 2,5 0
April------------------- 23 7 0
May 23 5 1
June ___________________ 20 ha 1
July-------------------- 5 0 0
Total -------- 110 2414 3
10A short time earlier they had conferred with Echols, another representative of
the Union . It appears that this was the first time that any union had attempted to
organize the employees of the Newnan plant, although there had been unions in other
plants of the Respondent . See Douglas and Lomason Company , supra See also Cases
Nos 7-RD-340 and 7-CA-2810.
11 Originally , Adams testified that he spent the first 15 minutes of the day working
"on the presses" at Brown ' s direction On cross -examination , however , he testified.
"I was in the rest room for about fifteen minutes, which I do every morning , he [Brown]
came up Brown testified that "at the beginning of the day Air Adams was in
the press room . . . for a short period of time. I don't know exactly."
12 According to Adams , Brown told him "to report to Frank Eskew ," an inspector in
the buffing department According to Brown "I went down and brought him [Adams]
Into the buffing department ." According to Eskew , Brown "brought" Adams to the buffing
department
13 Adams testified that Eskew assigned him to the "whirly-bird" Brown testified
that he and Eskew were present at the machine when Adams was assigned to the "whirly-
bird" and that he ( Brown ) " told Mr Eskew to show Mr Adams how to operate that
machine and we watched him for a couple of minutes ." Eskew corroborated Brown on
this matter
DOUGLAS AND LOMASON COMPANY 619
After about an hour, Adams was transferred to putting nameplates on scuffing
plates.14 Next, Adams was transferred to a sanding machine.15 Frank Eskew, an
inspector, showed Adams the burr which needed sanding.'6 Adams then proceeded
to operate the sander. At about 2:30 or 3 p.m. Adams ran out of boxes. He shut off
the sander, put the safety goggles on his forehead, and left to obtain a box What
happened upon his return to the sanding machine is in dispute. Frank testified that
he saw Adams sanding with the goggles on top of his forehead, and then told Brown
"that he'd better do something about Mr. Adams, with the glasses on top of his head
because I just wasn't going to put up with Adams or anybody else not wearing
their safety goggles ... and he had been warned previous to that." Brown substan-
tially corroborated this testimony. Brown accordingly spoke to Adams at Adams'
machine. According to Brown, Adams was actually sanding while the goggles were
on his forehead. According to Adams, the machine was running, the goggles were
on his forehead, he had a piece of metal in his hand ready to sand, but he had not
yet actually begun to sand. Brown told Adams he was discharged. When Adams
asked why, Brown replied that he should see Frank. Adams then sought Frank and
asked why he had been discharged. Frank replied that it was because of his infrac-
tion of safety rules 17 Adams protested that other employees operated sanders with-
out wearing safety goggles, to which Frank responded that they would wear safety
goggles "from now on." Adams returned to Brown and again asked the reason for
his discharge. Brown answered that he had acted "on orders." Adams then left.
Frank had-the following notation entered on Adams' personnel record: "Released.
Absenteeism and violation of safety rules per Mr. Frank." The separation notice
sent by the Respondent to the Employment Security Agency of the Georgia Depart-
ment of Labor states that Adams was discharged "because of a very poor attendance
record and, also, violation of safety rules."
4. Contentions of the parties
The General Counsel and the Union contend that the Respondent was aware of,
or suspected, Adams' union activities; that the reason given by the Respondent for
his discharge "was a mere pretext"; and that the real reason for the discharge was
the Respondent's desire "to rid itself of ... an active union adherent." The Respond-
ent, conversely, maintains that it had no knowledge of or reason to suspect Adams'
union activities at the time of his discharge, and further that there was good cause
for Adams' discharge.
5. Conclusions
Undoubtedly, of all the employees of the Respondent's Newnan plant, Adams was
one of the two most active proponents of the Union. The question remains whether
it can reasonably be inferred from the record that this was known to, or suspected by,
the Respondent.
The General Counsel's brief points out: "When Adams was first hired by the
Respondent in January 1963, he candidly revealed to Plant Manager Frank that he
had been a member of a union at a plant in New Jersey." Assuming, without decid-
ing, that this is a fair, complete, and accurate paraphrase of Adams' testimony,'8
14 Again, Adams testified that Eskew directed him to change jobs Brown testified that
he (,Brown) moved Adams to the nameplates, then told Eskew "to show him how,"
which Eskew did Eskew testified that Brown told Adams to "go over there and let him
[Eskew] show you how . . . " whereupon Eskew instructed Adams in his duties.
'° Adams testified that Eskew assigned him to the sander Brown testified that he
(Brown), in Eskew's presence, moved Adams to the sanding operation, and that he
(Brown) Instructed Eskew to show Adams the burr which needed to be sanded Eskew
once more corroborated Brown's testimony
18Adams and Eskew testified that Adams remarked that he had no safety goggles,
and Eskew checked out a pair of goggles, which he gave to Ad,uns Eskew further
testified that Brown was present when Adams put them on. Brown testified that the
goggles were already hanging on the handle of the sanding machine when Adams got
there, and that Adams did not put them on in his (Brown's) presence.
14 According to Frank, he also told Adams that another factor was his poor attend-
ance record
18 Adams testified: "I told him the places I used to work and I worked for Union
Steel Corporation, and it was a union shop, but I didn't beiovg to it now." [Emphasis
supplied ]
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is, in my opinion, of no probative value in attempting to ascertain what, if any-
thing, the Respondent knew or suspected about Adams' union activities some 6
months later.
Adams testified that on July 12:
Frank Eskew, asked me, how about giving me a union card. He said, I know
that you are the one that's getting them signed. I said, who told you that, he
said, oh, word just got around. He would walk away and then he would come
back and then he would say something else about the Union, he said I am a
good union man myself, give me a card and I'll sign it And, he asked me, how
many cards do you need for an election and I told him, I believe, thirty percent
and he asked me if I had that many signed and I told him I guessed everything
was all right and I didn't say nothing else about it.
Eskew denied any knowledge of Adams' union activities, and also denied telling
Adams that he would like to sign a union card. However, for the purposes of this
Decision, it will be assumed, without deciding, that the conversation took place sub-
stantially as described by Adams.10
Eskew admitted that "there was a good bit of talk going around the plant about
the Union about that time" but flatly denied that he ever reported to any supervisors
about any union activities going on in the plant. The General Counsel, however,
contends that on July 12, while Eskew was not a supervisor within the meaning of
the Act, as such, he was a company agent on that day because "he was acting in the
place of a supervisor," and that therefore whatever knowledge of union activities he
possessed or obtained was automatically attributable to the Respondent. In exam-
ining the status of Eskew on July 12, we start with certain facts which are clear from
the record: Eskew's normal duties and authority as an inspector were not such as
to qualify him as a supervisor within the meaning of the Act, or an agent of the
Respondent; there were approximately 40 to 50 employees in the buffing and finish-
ing department on July 12; and Edward B. Morris, the normal supervisor of that
department, was on vacation at that time. Adams testified that Eskew was in
charge of the buffing and finishing department in Morris' absence. But Frank,
Brown, and Eskew all testified that it was Brown, rather than Eskew, who substituted
for Morris as foreman in the buffing and finishing department. No other employees
testified on the subject. However, Weaver testified that several months later in con-
nection with a representation case conference at the Board's offices, Frank and E.
Reginald Hancock, Esq., the Respondent's attorney, "agreed that he [Eskew] was
acting foreman at that time [July 12] and he assigned him [Adams] his job." Frank
could not recall this statement having been made. Hancock flatly denied that any
such statement was made by anyone in his presence . He further testified that he did
not know Eskew or Morris, or know that Morris had been on vacation at the time
of Adams' discharge. I credit the testimony of Frank, Brown, Eskew, and Hancock
as the more accurate, and find that Eskew was not substituting for Morris as fore-
man of the buffing and finishing department on July 12. It follows that Eskew was
not then either a supervisor or an agent of the Respondent, and that his knowledge
of Adams' union activities, if any, was not automatically chargeable to the Respond-
ent and was not shown to have been communicated to any representative of manage-
ment. And Adams admitted that, other than Eskew, no foreman or supervisor men-
tioned the Union to him.
But, argues the General Counsel, there are other facts from which the Respond-
ent's knowledge of Adams' leading role in the union campaign may reasonably be
inferred. These include the small size of the community, the small size of the plant,
the fact that Adams rode in Weaver's car, the fact that Adams distributed union
cards in the plant, and Eskew's testimony that "there was a good bit of talk going
around the plant about the Union about that time." So far as Newnan is concerned,
it has a population of over 12,000,20 and is the site of an impressive number of indus-
19 There was introduced into evidence a union authorization card dated July 11, bear-
ing Eskew's admitted signature. The record does not show where Eskew obtained the
blank card , and Eskew testified : "I am not sure when I signed it " Eskew further
testified that after he had signed the card he gave it to L. D. Hurley, an employee, on
the afternoon of July 12, after Adams' discharge. Hurley was not called as a witness
by any party. Weaver's records indicate that Eskew's card was not among the signed
cards turned in to Weaver up to , and including , July 12. If Eskew had signed a card,
or had a blank card in his possession , on July 11 , it would be unlikely that he would
have asked Adams for a card on July 12.
20 The figure for the 1960 census was 12 , 169. September 1964 Reference Book of
Dun & Bradstreet , at 876 The Newnan-Coweta Chamber of Commerce estimated its
current population as 13,500.
DOUGLAS AND LOMASON COMPANY 621
trial establishments, some of which have a larger complement than the Respondent's
approximately 245 to 270 employees.21 The Respondent's employees are drawn
from sources, in some instances, as far away from the plant as 26 miles. I am of the
opinion that neither the size of the community nor the size of the Respondent's plant
are such as to bring them within the Board's so-called "small plant" rule, that is,
to infer without proof that the Respondent knew who the active union leaders were.22
Let us now turn to the distribution of union cards by Adams in the plant. As
previously noted, in the 5 days before his discharge Adams obtained 23 signed union
cards at the plant during nonworking time. There were then six supervisors on the
day shift, of whom one was on vacation. Does the record show that any supervisor
knew that Adams was distributing cards? Adams testified:
TRIAL EXAMINER: Now ... you said that when you were handing out the
cards, there were some foremen around .... What did you mean by that?
The WITNESS: Well, I would go out in the plant and maybe Desoda would
be talking to some employees or Jack Brown would be walking through or Ed
Morris would walk through.
TRIAL EXAMINER: They were all over the plant, you don't know where
specifically?
The WITNESS: Not specifically.
TRIAL EXAMINER: You didn't see any of them watching you when you were
passing them out did you?
The WITNESS: I have seen them pass by, but not necessarily just watching me.
TRIAL EXAMINER: Well, when they passed by, were they looking in your
direction'
The WITNESS • They would glance over and keep walking on.
TRIAL EXAMINER: Do you know whether they could see you or not?
The WITNESS: They could definitely see me.
TRIAL EXAMINER' Could they see what you were doing?
The WITNESS: If they suspected and looked they could.
TRIAL EXAMINER. You don't know whether they did or not, do your
The WITNESS: No, sir.
Of the foremen specifically mentioned by Adams, Desoda did not testify, Brown
denied that he knew of Adams' union activities, and Morris was on vacation at the
time and therefore obviously could not have observed Adams. I am convinced that
the record falls short of establishing facts from which it could reasonably be inferred
that any management representative learned or suspected that Adams was distribut-
ing union cards in the plant Any such finding would, in my opinion, be speculative.23
The fact that Adams rode in and around Newnan with Weaver, in Weaver's auto
bearing an out-of-county license, is, it seems to me, of little probative value, espe-
cially in the absence of proof that any of the Respondent's officials knew Weaver's
identity. So far as Eskew's testimony about rumors in the plant is concerned, there
is no reason to assume that these rumors extended beyond the rank-and-file employ-
ees Moreover it is not clear from Eskew's testimony whether Adams' name was
mentioned in the "talk." In any event, this testimony is so vague and nebulous as to
be virtually worthless.
On the record before me, I conclude that the General Counsel has failed to estab-
lish by a fair preponderance of the probative and credible evidence that, at the time
of Adams' discharge, the Respondent either knew of or suspected Adams' union
activities. The General Counsel argues in his brief that the Respondent's knowl-
edge of Adams' participation in the Union's campaign "need not be established as
an independent element." The Union likewise urges.
Nor was it necessary that there be proof, in order to sustain a violation of
8(a)(3), that the employer was aware of or possessed knowledge of Adams'
individual union sympathies if the natural consequence of his discharge caused
the effect which is proscribed by 8(a) (3 ).
"In a Board election held in December among the Respondent's employees at Newnan,
there were 279 eligible voters.
23 Tennessee Packers, Inc., Frosty Morn Division, 143 NLRB 494, at 508 (275 em-
ployees) ; and The J. S . Dillon & Sons Stores Co ., Inc., 144 NLRB 1235 (260 employees).
"3 Compare Laboratory Equipment Corporation, et at., 146 NLRB 1247. Harrison's
testimony, referred to in the General Counsel's brief, that Adams was "bold" about
getting cards signed and that "he didn't care who he asked" is merely Harrison's
opinion and is immaterial . Moreover, it was stricken at the hearing
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I cannot agree. This is not a case in which an employer discharged a nonunion
employee in an effort to attribute a semblance of legality to another, and discrimina-
tory, discharge. Nor has the employer here laid off employees in anger or in retalia-
tion for union activity without regard to their personal union adherence, for here it
has not been shown that at the time the Respondent even knew of any union activity
by any employees. The General Counsel's theory here is that Adams was singled
out and discriminated against because of his assistance to the Union. This could not
possibly have been the Respondent's motivation unless Adams' union activities were
known or suspected. Hence an essential element of the violation has not been
proved. It follows that no prima facie case has been presented that Adams' dis-
charge was discriminatory or in any way related to the assistance he rendered the
Union In view of this conclusion, I deem it unnecessary to consider the Respond-
ent's defense that Adams was discharged for cause.24
B. The letters distributed by the Respondent
1. Facts
On November 4 the Union filed with the Board a petition in Case No. 10-RC-
5753 seeking to represent the production and maintenance employees of the Respond-
ent's Newnan plant. On November 22 an agreement for consent election entered
into by all parties was approved. It scheduled the election for December 20. Dur-
ing the period between these two dates (November 22 and December 20) the
Respondent distributed to its employees a number of letters concerning the coming
election. They were signed by Frank and W. K. Lomason, the Respondent's presi-
dent. We are concerned here with only three of these communications, namely
those dated December 5, 13, and 15. They are set out in full in the attached Appen-
dixes marked "A", "B", and "C".
The election was held as scheduled and the Union lost. The Union filed timely
objections to the election, among which was: "The employer's publications and
statements to the employees by way of letter and otherwise unlawfully interfered
with the employees' freedom of choice." Referring specifically to the letters dated
December 5, 13, and 15, the Regional Director held:
In the opinion of the undersigned these statements are clearly of the type
proscribed by the Board because they tend to engender so much fear of reprisal
as would render impossible a rational, uncoerced decision by the employees. The
entire tone of the letters in question emphasized the employer's control of the
economic status of the employees, and the futility and economic hazards of
selecting the [Union].
Accordingly, the Regional Director set the election aside, and directed that a second
election be held.2°
2. Contentions and conclusions
The General Counsel maintains that these "letters, when considered in their
entirety, reveal clearly that [the] Respondent, in fact, threatened its employees with
economic and other reprisals in the event that the union was successful in its organi-
zational campaign" and specifically "threatened to close the Newnan plant rather
than to bargain about wage rates." The Respondent, on the contrary, contends that
the letters were factually accurate and "were privileged free speech under 8(c) since
they contained no coercions or threats of reprisal by the Respondent."
In evaluating these letters, it is well to bear in mind the admonition of the United
States Court of Appeals for the Sixth Circuit. "We think the utterances of either
24 Laboratory Equipment Corporation , supra ; The J. S. Dillon R Sons Stores Co.,
Inc., supra; Tennessee Packers, Inc., Frosty Morn Division, sups a; Phoeniw Newspapers,
Inc, 142 NLRB 827, at 830; Wausau Concrete Company, Inc, 142 NLRB 33, at 35,
especially footnote 5 in the Intermediate Report ; Diamond Ginger A le, Incorporated,
125 NLRB 1173, at 1178; and Hadley Manufacturing Corporation, 108 NLRB 1641
In the last cited case, at 1650, the Board stated: "A necessary prerequisite for the
proof of such allegation is the proof that Respondent had knowledge of the union
activities for which it allegedly discriminated against the nanied employees "
25 The second election was held on February 26, 1964 The Union won and was cer-
tified on March 5, 1964.
DOUGLAS AND LOMASON COMPANY 623
side in an election campaign ought not to receive a narrow or strained construc-
tion." 26 Moreover, it is necessary to consider the effect of the letters as a whole,
avoiding as far as possible the reading of any portions out of context 27
The Regional Director, in setting the election aside, relied upon certain passages
in the letters, which he apparently viewed as veiled threats of reprisal. (These pas-
sages have been indicated in the Appendixes by braces in the left-hand margins.)
However, in my opinion, to the extent, if any, that these passages may be considered
coercive standing alone, such an effect would be more than offset by the fact that
the letters are sprinkled with assurances that the Respondent will fulfill its legal
obligations, that it is not threatening any reprisals, and that it will not take action
to discriminate against anyone because of his adherence to the Union. For example,
the December 5 letter contains the following. "Your continued employment with
us . . is based entirely on the satisfactory performance of your job, and business
conditions, and not on the question of whether you are or are not, a member of any
labor union." Later on, the letter states: "Do not let the Union twist this into
meaning that we would not fulfill our legal obligations-you know our policy has
always been to do so." And the letter dated December 13 states: "Again I want to
say-don't let the union try to twist this into my threatening you that we are going
to close the Newnan plant because of the union. This is not true at all." Consider-
ing the letters in their entirety, I conclude, with all due respect for the opinion of
the Regional Director,28 that they contain no threats of reprisal by the Respondent
but merely predictions of adverse economic consequences which might flow from
unionization. They accordingly fall within the realm of free speech protected by
Section 8(c) of the Act.29
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Douglas and Lomason Company is, and at all material times has been, an
employer within the meaning of Section 2(2) of the Act, engaged in commerce within
the meaning of Section 2(6) of the Act .
2. International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish that the Respondent is engaging in
or has engaged in unfair labor practices within the meaning of Section 8(a)(1) or
(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that the complaint be dismissed
26 Union Carbide Corp v. N L R B., 310 F. 2d 844, 845 (C A 6)
zr I agree with the contention of the General Counsel, set forth in his brief, that under
the test laid down by the Board in American Freightways Co , Inc, 124 NLRB 146, at
147, the employer's motives are not relevant
28 The Regional Director was, of course, dealing with a representation case, to which
a different and more restrictive standard is applicable. See Dal-Tex Optical Company,
Inc, 137 NLRB 1782, at 1787
26 Union Carbide Corporation v. N.L.R B., supra; and Texas Industries, Inc, et at
v. N.L R B., 336 F. 2d 128 (C A. 5). In the last-cited recent case, the court said (at 130)
It is only when the employer . . threatens to himself take economic or other
reprisals against the employees that a § 8(a) (1) violation may be found
[P]rediction of adverse economic consequences is protected by § 8(c)
APPENDIX A
DOUGLAS & LOMASON COMPANY
5836 Lincoln Avenue Detroit 8, Michigan
December 5, 1963
To All Employees:
This letter is written for the purpose of giving you information that will aid you
on December 20, 1963, in deciding the important question of whether you want a
union to speak for you in the future, rather than our dealing with each other on a
man-to-man basis.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We wrote you a letter a few days ago telling you about the election that is coming
up. We would now like to tell you in more detail about your rights and privileges
concerning the union. That is, your RIGHT TO WORK.
If freedom means anything, it means that a man cannot be forced to join a union
before he can GET a job and make a living for himself and his family. It also
means he cannot be forced to join a union in order to KEEP a job and make a living.
The Federal Government has recognized that force and threats are wrong and
has made these things illegal. Efforts by UNION BOSSES to do otherwise is simply
an attempt to go through the back door to get something that they are not allowed
to go through the front door to get.
That is why Georgia has passed "Right-to-Work" laws forbidding this type activity
in any form.
Georgia's "Right-to-Work" law gives you the following job protection regarding
your right to either join or not join a labor union.
1. In Georgia you cannot be made to join a labor union at any time.
2. In Georgia you cannot be fired or your wages cut because you do not join a
labor union.
3. In Georgia it is a criminal offense for anyone to try to force you by threat to
join or not join a union.
4. In Georgia you, as an employee in this company, cannot be required to join or
not join a labor union as a condition of your employment.
Your continued employment with us is not subject to the personal whims, promises,
or threats of some UNION BOSS or ORGANIZER, but is based entirely on the
satisfactory performance of your job, and business conditions, and not on the ques-
tion of whether you are, or are not, a member of any labor union.
We realize that this may look like a long letter, nevertheless, we will appreciate
it if you will take your time and sit down in your home and give careful thought
to the things which we are going to try to bring out. The union may object to
our writing you a letter. Why is that? Why is it they want you to hear from them,
and from them only?
The organizer will try to make you dissatisfied, and he will continue to try right
up until the election. He will talk with many of you, put out circulars, hold
meetings, and visit in your homes.
Have you ever stopped to think WHY the union is trying to get you to join them?
WHY the union meets with you-comes to your homes and makes you such glow-
ing promises-goes to such great length and trouble in trying to get you into their
union? Your common sense tells you the answer. What they are after is MONEY!
Whose money? YOUR MONEY! They are here for union dues, initiation fees
and fines. (Did you know that a union can actually fine you after you become
a member?) The union organizers live well and spend a good deal of money.
Whose money have they been spending? YOURS-THEY HOPE'
Whenever a union is voted in, the first thing it demands is a "check off." This
is an arrangement by which the union takes a slice for dues out of every member's
pay check BEFORE he ever gets it, or even sees it. IS THAT WHAT YOU
WANT?
We don't know what all the Union has promised you. Of course, they can
promise anything, but carrying out their promises is an entirely different matter.
The truth about the Union is that they have no magic power to get you the things
they may have been promising. When the organizers tell you they are going to
come in here and make us do this or that, or the other, they are seriously mis-
leading you. THIS UNION, OR ANY OTHER UNION, CANNOT MAKE US
DO ONE SINGLE THING THAT WE ARE UNABLE OR UNWILLING TO DO.
Do not let the Union twist this into meaning that we would not fulfill our legal
obligations-you know our policy has always been to do so.
If the union were to come in here, who would be the people who would run it?
A union often furnishes an easy opportunity for persons who have a "hankering"
for small-time politics. A few such people usually stir around in the union, pull
strings to get themselves set up as Committeemen or Stewards so they can handle
everybody else's business and "lord it" over all their fellow employees. Look
around you now and see who are the individuals active in pushing this union. Are
they the persons into whose hands you are now ready to trust your business and your
POCKETBOOK?
DOUGLAS AND LOMASON COMPANY 625
We have, at all times, tried to be considerate of you and treat you on a man-to-
man basis. Now, we do not mean to claim that everything is just as perfect as it
might be here. We have made our mistakes too and are as willing to admit it as
anyone else. We do believe that we have improved over the years and we cer-
tainly hope to keep on improving, and we would like to say that if there is anything
that you wish to call to the personal attention of Al Frank or to the attention of
any foreman at any time-there is no reason why you should not do so, and we
will sincerely welcome your doing so. You know that our doors have always been
open to you, and we have wanted it that way. Do you realize that we could not
continue to follow this policy if we had a union? You would have to go to your
union representative . If you were not one of the chosen favorites or "pets" of the
union representative, your personal problems might never receive the consideration
to which they are entitled.
Your job is most important to you. To many of you, your job is the only source
of income for you and your family. Your job is also of great importance to the
Company. Without your loyalty and cooperation, we could not exist and remain
active in our industry, which is highly competitive, and getting more so daily. So,
you see, we are dependent upon each other and must maintain our present man-to-
man relationship if we are to succeed. With this in mind, and speaking for the
entire Company , we promise that we will continue to give every consideration to
you, as a loyal employee. There are many other things which we could mention,
but we will not do so since this letter has already become lengthy. In the past,
we have achieved improvements of which we may all be proud. We think this is
proven by the fact that the Company now has on file many applications for jobs
from other people in the Newnan area who would like to come to work for us.
The Coilipany intends to continue its program of improvements. We hope that
we will not be side-tracked by outside interference and pressure
Since this union has started its campaign to make you unhappy and dissatisfied with
your jobs, it has meant a great deal to us that so many of you have told us of your
loyalty to the Company and of your feeling that it is to the best interest of all
concerned to continue our work together without outside union interference or pres-
sure. We value your confidence highly and we assure you that we shall make every
effort to deserve your confidence in the years to come.
Sincerely, B'll L P 'd t
APPENDIX B
1 mason , resl en
Al Frank, Manager
DOUGLAS & LOMASON COMPANY
5836 Lincoln Avenue Detroit 8, Michigan
Dear Employee : December 13, 1963
The UAW is trying awfully hard to get you into their union any way they can.
The latest thing they are trying to get you to swallow, so we have been told is:
"Look-all you have to do is join us, and you will get Detroit rates and those
rates are $3.25 per hour!"
"Sounds good-doesn't it? The trouble is, that is all it does-SOUNDS GOOD."
First of all-they are not telling you the truth, and I think you had better have
the facts early in the game before you are misled by glowing promises that cannot
possibly be fulfilled.
Let me lay it on the line: We are never going to pay Detroit rates here and
neither are we going to pay California rates or New York rates or Chicago rates
here. Why? Simply I could not do it and stay in business. I would have to
close this plant. I've explained to you the difference in freight rates and the dif-
ference in basic products that you are producing. My closing the plant would
not be in order to get at some of you fellows because you may be for a union,
but I would have to close the plant down simply because it would be impossible,
from a business standpoint, to operate it on that basis.
In addition, there are a lot of things about the Detroit plant that the union would
keep secret from you if they could. First of all-the union's featherbedding, strikes,
unreasonable pay demands, grievances and various other work stoppages over the
years in Detroit is the very reason we opened this plant in Newnan, Georgia and
why you have a job in the first place. We did not come to Newnan to take advan-
tage of you, because we came with the clear understanding that we would provide
good jobs with good working conditions and benefits that paid AS GOOD OR
BETTER wages as other companies pay in the area for like work.
783-133-GG--vol 151- -41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But let me give you a few of the facts about our Detroit plant that have happened
over the last few years that the union is not proud of.
1. At one time we had almost two thousand employees in our Detroit plant.
Today we have less than we presently employ in this plant.
2. In 1955 about 1,468 employees went out on strike for ten weeks ( could you go
for ten weeks without a paycheck?), and approximately 789 of those employees
have never returned to work as a result of that strike.
3. In 1958 the Detroit union was forced to agree to a REDUCTION of wages
for the employees in the plant in the average amount of 12V2 %.
4. In 1960 the union had to agree to reduce wages again . This time in the
amount of 13% or a total of 251/z% in two years. This was the only way to keep
from losing jobs for everyone.
5. At one time there were two unions (neither one of which was the UAW) in
Detroit. In June of 1960 the Douglas & Lomason members of one of the unions
(at one time they had over 500 members working in the Detroit plant ) went to the
NLRB and got rid of the union.
I know it will be hard for you to understand , but you should know the facts.
The outside union officials tried everything they knew for one year to prevent their
members from getting out of their clutches and becoming Free American workers.
The Metal Polisher's Union officials filed various delaying complaints against the
Company and all of these false claims were dismissed by the Federal Government
as having no truthful basis.
6. In the past (Thank God , it isn't true today ) we have had hundreds of em-
ployees in Detroit who had been laid off for over 5 years and over a thousand
employees Had [sic] off at the same time. The longest layoff we have ever had in
Newnan was for a few months, and I don't think it ever involved much more than a
handful of people.
Again I want to say-don't let the union try to twist this into my threatening
you that we are going to close the Newnan plant because of the union . This is
not true at all. I am simply talking about what has happened in Detroit and the
reason I can't let this same thing happen in Newnan , Georgia.
We have a wage scale for your particular job that is as good as or better than
any other in this area , and we have told you a long time ago , our intentions have
always been to keep them moving ahead by reviewing wage rates constantly trying
to make them better. I think it is interesting to note that since this plant has opened
here in Newnan your wages have more than doubled. As a matter of fact, they
have increased by about 90 cents per hour.
I have laid this out as "cold turkey" and as honestly as I know how, and if the
union tries to give you that "Detroit story" again , you had better ask them to
take a closer look at it before they try to sell it to you , because it simply won't work.
Sincerely,
Bill Lomason
APPENDIX C
DOUGLAS & LOMASON COMPANY
5836 Lincoln Avenue Detroit 8, Michigan
December 15, 1963
Dear Employee:
Next Friday, December 20th, from 3:00 p.m. to 5.00 p.m. adjacent to the time
clock, you are going to be given the opportunity to make one of the most important
decisions you have ever had to make-a decision that may greatly affect your own
and your family's welfare for many years to come-possibly for the rest of your
life. You are going to have an opportunity to vote on the question of whether you
want to continue to live a free life as you have in the past , or whether you want to
surrender your freedom to an outside union organizer whom you have never known
or heard of until a few weeks ago. If 51% of the employees who vote for this
outsider , then he can and will say when all of you can work, how you can work,
when you are to strike , how much money you are to contribute to the strike fund,
and whether or not you walk the streets without a paycheck
I urge you to discuss this important matter with your entire family. If you take
the wrong step on Friday, they are the ones who will suffer. It is a matter that
calls for thoughtfulness and prayer, before you vote to give up your freedom. I
think it is so important to you and your family that I want to suggest that you read
and re-read this letter, for, after all, if you are wrong, your loved ones will be
affected.
DOUGLAS AND LOMASON COMPANY 627
In our previous letter, I outlined to you the many benefits and advantages that
you now enjoy, ALL GRANTED WITHOUT THE AID OF ANY UNION
WHATSOEVER or the payment by you of any Union dues, I also ask you to give
serious thought to the question of whether or not you know of any other plant in
the Newnan area where you can get a better job, all things considered, than the
one that you now have. I know you are smart enough that if you could get a
better job you would go get it and I wouldn't blame you.
Most of you have never experienced the hardships, misery and loss that comes
with the union strike. Unions, while collecting dues from you, can call you out on
strike and keep you out, even when you have no fault to find with your Company.
Have you ever walked a picket line when your family was in need-and you losing
money because the union would not let you work? In most cases, it takes years
for these employees to make up the wages lost during such a strike.
Some of you may know from personal experience, of men who, during a strike,
have lost their homes, automobiles and furniture which they and their wives had
purchased on a time-payment plan.
I believe I know how you feel about such matters and I shall never believe that
you will intentionally decide to have someone else direct your lives and your
pocketbooks. Never be deceived into believing that the union offers you job
security. Compare the past record of this union for strikes and lost pay checks,
with the established record of our plant (which has never had a strike), for the
consideration and care given each employee, regardless of age and physical condition.
I am going to ask you to cast your vote in favor of yourself and against the
union. I am not asking you to do this for my good , or for the Company's good,
but I am asking it because I sincerely believe, based on my own personal experience
with unions, that it is for your own good.
If, on election day, only a few employees vote and a majority vote for the union,
then the union has won and will speak for you and all of the other employees, just
the same as if all of you had voted for the union. The union either speaks for all
employees or for none. It doesn't have to get the votes of a majority of all the
employees, but only a majority of those who vote. Those who TAKE THE
TROUBLE TO VOTE determine the outcome for everyone in the unit, so, be sure
you and your fellow employees vote your wishes in this election.
We have heard it said that some employees believe that-"Well, let's give it a
try-what've we got to lose. We can always get out of it if we don't like it."
DON'T YOU BELIEVE IT. Unions make it a whole lot easier for you to get in
than for you to get out. If you voted for the union in the election and thereafter
every last employee saw the union for what it truly stands for and wanted to come
out from under the union, in most instances the law requires that the unit be
covered by the union for at least a year, even if all the employees sign a notice to
try to get out. You have the right to vote for them if you want to, but, for good-
ness sake, don't be TRICKED into it by such foolish talk as-"what've we got to
lose, you can always get out if you don't like it."
As a final point, your vote is a SECRET ONE and no one can know or find out
how you voted. You are a free and independent American citizen, and while you
are in the voting booth, all you need to consider is your and your family's own
desires in the matter. No union cards, no applications, no pleas, no promises, no
threats need be given any consideration whatever. It doesn't matter whether or
not you have signed a union card or paid them initiation fees-you have the right
to still vote as you see fit.
Put an ">(" in the NO box if you wish to protect your freedom.
YES NO
q L
Sincerely,
Al Frank