Efco Corp.

National Labor Relations Board - Board Decisions

Feb 2, 1965

150 N.L.R.B. 1505 (N.L.R.B. 1965)

EFCO CORPORATION 1505
Efco Corporation and Carpenters District Council of Kansas
City and Vicinity, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO. Case No. 17-CA-2206. Febru-
ary 2, 1965
DECISION AND ORDER
On August 11, 1964, Trial Examiner A. Norman Somers issued
his Decision 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 there-
from and take certain affirmative action, as set forth in the attached
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting, brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
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
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as modified herein.'
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 Respondent, EFCO Corporation, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' The Trial Examiner in Parkhurst Manufacturing Company, Inc., 136 NLRB 872,
found it unnecessary to resolve the issue with respect to whether an employment ques-
tionnaire containing questions concerning union affiliation constituted unlawful interroga-
tion in the circumstances of the case . Accordingly , the Board ' s adoption of the Trial
Examiner ' s Decision in that case is not inconsistent with our decisions in Transamerican
Freight Lines , Inc., 122 NLRB 1033, and Schott Metal Products, 128 NLRB 415.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner A. Norman Somers in Monett, Mis-
souri, on April 27,.1964, on complaint of'the General Counsel as amended , alleg-
ing, and answer of Respondent ,' as correspondingly amended, denying, violations by
Respondent of Section 8(a)(1) of the Act.2 The parties waived oral argument and
'Counsel. on the brief did not participate in the hearing , they having entered the case
after the hearing was closed and before the briefs were filed.
z Charge, amended charge, and second amended charge, respectively filed June 12,
July 25, and September 23, 1963. Complaint Issued February 20, 1964.
150 NLRB No. 147.
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel and Respondent have filed briefs (supra, footnote 1), which
have been duly considered. Upon the entire record 3 and my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent, Efco Corporation, is a Missouri corporation, located in Monett, Mis-
souri, where it makes and sells aluminum screens and windows. In regular course,
it purchases goods and services from suppliers located outside the State in an amount
exceeding $50,000 a year. It is admitted and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
The Charging Party is a labor organization within the meaning of the Act.
11. THE UNFAIR LABOR PRACTICES
A. The issue
The case concerns conduct claimed by the General Counsel to be, separately and
in their totality, an invasion of employees' organizational rights, in violation of Sec-
tion 8(a)(1) of the Act. In substance (apart from an application form which
requires the job applicant to reveal his union affiliation) they consist of conversa-
tions variously claimed to be in reasonable purport; threats of removal of the plant
or reduction of the work force; or loss of fringe benefits if the employees should
vote the Union in; promise of a raise if the Union should- be voted out or abandoned;
creating an impression of surveillance of union activities; and questioning of employ-
ees concerning these matters in a total context giving it coercive force
Except for a few conversations whose versions as given by the General Counsel's
witnesses are not disputed, the defense consists of a denial that in the conversations
as recited, the management representatives made the statements attributed to them,
and alternatively, that even if made, they do not overstep the line of legitimacy, either
because they are immune under Section 8(c) as "expression of views, argument or
opinion," or were not coercive in any event.
Additionally, Respondent disclaims responsibility for the actions of William Hodge,
former plant superintendent, on the ground that he was no longer a supervisor when
he engaged in the conduct imputed to him. Respondent's answerability therefor is
a threshold issue which precedes the evaluation of the conduct .4
B. The status of William Hodge
Hodge began to work for Respondent in March 1959 and in December of that year
was made plant superintendent. He occupied that position until November 1, 1962.
In February 1963, the month of the conversations in which he is implicated, he was
still around, as he still is, and the question is whether Respondent is answerable for
his actions of that month.
President Fuldner testified that on November 1, 1962, he replaced Hodge as plant
superintendent with Ernest Kennedy, who was brought in from the outside, and that
he then shifted Hodge (who took a cut in pay) to the selling branch under the general
sales manager, and has since put him in charge also of the truckdrivers ' Kennedy's
replacement of Hodge in November concededly did not end Hodge's relation to pro-
duction. President Fuldner explained that Hodge "was well liked enough around the
plant by the employees and we felt that his immediate removal and dismissal would
work many a morale problem on us." So, as Fuldner testified, he called the employ-
ees together in November, and at the same time that he introduced Kennedy as the
new superintendent, he, also announced to the assembled group that Hodge would
continue in production as Kennedy's "technical assistant." Thereafter, Hodge main-
s As corrected by order issued on notice to the parties and placed in the record as
Trial Examiner's Exhibit No. 2.
* In the course of the hearing, Respondent made motions to strike portions of the
testimony, that relating to IIodge's conduct because he was not a supervisor, and in
respect to him and others because the statements were protected by Section 8(c) or
were in any event not coercive on their face Respondent now renews these motions.
The grounds stated pose the issues on which liability itself turns, and the nature of
their disposition is implicit in the treatment of the issues themselves.
EFCO CORPORATION 1507
tained his office next to Kennedy's and, as when he had been full superintendent,
it was he who interviewed the job applicants. Hodge testified he did not "recom-
mend" who should be hired, but:
Q. What did you do?
A. I interviewed the employee, the prospective employee, as to whether or
not I thought he would fit the job at EFCO that was available.
Q. Why did you do that?
A. Because Kennedy asked me to.
Q. Did you keep your conclusion to yourself?
A. No, I would initial the application for employment as far as tape reading
or having the ability or passing the test to do so, I•would initial that for Ken-
nedy and then he would take the application and he would hire whom he liked.
Every persuasive indication is that whether Kennedy would "like" the applicant
hinged on whether he got by Hodge. Fuldner admitted that if "Mr. Hodge told Mr.
Kennedy that he thought a certain individual was a good employee," the "chances are
he would be [hired]."
As'to how long Hodge continued in that function, Fuldner testified that "there
was-no actual set date and a chop-off period." He explained that "it really is very
difficult to pin down a point here, because of his proximity over there [referring to
Hodge's office adjacent to Kennedy's] and the position he did hold " Fuldner's best
estimate was that it was up to the end of January or early February-the later esti-
mate being one which would encompass all but the last of his conversations anyway
(i.e., the one after the election with Jerry Moller and Billy Gray). In testifying
concerning when Hodge's function as thus described ended, Fuldner was referring
not to any announcement to the employees but only to management action within its
inner councils. He admitted that at no time had there been an announcement to the
employees that Hodge's assistantship to Kennedy had ended as there had been when
it began. In testifying to when his new function ceased, Hodge shared none of his
superior's uncertainties. He was sure it was "in the last part of January 1963," and
that he then turned over all the applications to Kennedy, after which he no longer
interviewed any applicants His certitude underwent alteration when he was con-
fronted with his pretrial affidavit, in which he had stated- "In about April 1963, 1
turned over interviewing of applicants to Ernest Kennedy, the Production Manager "
He acknowledged the truth of the above but qualified it, as he had not done in
the affidavit, with the statement, "There was very few times I interviewed anyone.
There were very few to be hired at that time," which bars not on his still possessing
the exclusive interviewing function but the number of occasions for its exercise.
The above is what appears from Fuldner's and Hodge's, own account of the new
function. It is a fraction of the whole. Fuldner gave further testimony showing
Hodge's continuing participation in management councils.' He testified:
Q. (By Mr. BLAKE.) Is he responsible for formulating any managerial
policies? .
Mr. GARDNER: Let me ask you-to clarify the time area.
Mr. BLAKE: 5 I am talking about the first two months of 1963.
The WITNESS: Managerial policy is rather broad sense [sic] and will always
be so. Mr. Hodge certainly did and can make recommendations for change in
scheduling, and for improvements in customer service, deliveries for instant truck
leasing as opposed to truck ownerships and items of a rather technical nature.
But general policy. No.
Q. But you do not recall exactly when he quit assisting Mr. Kennedy in this
positiori7
A. No, Mr. Hodge was always available to any questions that Mr. Kennedy
might have as well as anybody else, from an extremely technical point I would
say that anybody was around there was always open for questions and answers to
enable anybody to do their job properly his very presence would be belying to the
contrary.
TRIAL EXAMINER: What do you mean by that9
The WITNESS: The fact that Mr. Hodge had an office right next to Mr.
Kennedy's, and his presence was-well, he was there at all times for any question.
5 The transcript designates the Trial Examinbr as responding to counsel's inquiry. It
is clear from the sense that the colloquy was solely between counsel, and the ti,insciipt
is corrected accordingly.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I mean as long as Mr. Kennedy was-well, he was there at all times for any ques-
tion. I mean as long as Mr. Kennedy was alive and I assume that today Mr.
Bohnmeyer [who succeeded Kennedy after the latter died] could consult with
Mr. Hodge on almost any items he felt Bill could help him with.
Other evidence indicates that just as Hodge continued to be the one to see in respect
to hire, so too did he continue to be such in respect to personnel actions generally.
This would follow from the "morale" reasons given by Fuldner for continuing Hodge's
role in production. It is confirmed by his description of the kind of limitation in
Hodge's background for which the acquisition of Kennedy was intended to compen-
sate. He testified:
The reason that Mr. Hodge was removed as plant superintendent was the fact
that Mr. Hodge's experience did not-was not from a strict production standpoint.
Mr. Hodge was an organizer of our work and our people. Mr. Kennedy was quite
technical, he had a lot of years experience in metal working, and this is the
reason, we needed a more technical individual from a production standpoint.
[Emphasis supplied.]
The above rather suggests that Kennedy's role was to formulate improved technical
methods, while Hodge's talents as "organizer of our work and our people" were to be
utilized by continuing him in authority over the personnel. Employees testified to
having been given so to understand by Fuldner in November, when he introduced
Kennedy as the new superintendent. Dale Thomas testified that Fuldner said Kennedy
would "help us try to find ways to speed up production," but that "this will not pull on
Bill Hodge's chain at any time"; that "supervision stands just like it is." Charles
Homer testified Fuldner indicated that Kennedy would be "in charge of all the new
operations. They were going to try to speed up production and get new equipment
and Bill Hodge would in no way be demoted from his present job. They said he would
not be demoted in any way."
Hodge, in his own testimony, unwittingly revealed his continuing authority over the
employees when, in denying that he started certain conversations with employees about
the Union, asserted he had only come to speak to them about their "work." In the first
such instance, he affirmed that doing so was a part of his duties, and, in the second,
when reminded that he had disclaimed having any connection with production, he
attempted a retrieve with the explanation that he is "still representing the customer in
expediting"; after being asked to "scour [his] recollection" for the substance of his con-
versation with the employee concerning that subject, and after long hesitation, he said
he came to the employee "about an order."
Even in that role, the employees would naturally regard him as speaking for manage-
ment. But his role as the one with the apparent power of decision concerning person-
nel matters is confirmed by events relating to a job newly opened up or about to be so
in the window department. According to the undenied testimony of Moller, Leroy
Osdol, the foreman of that department, about a week and a half before the election,
"told us this job was open and if anybody wanted to see about it, go talk to him about
it. His separate conversations with Moller and Charles Horner are treated in the
portion of this Decision concerned with Respondent's conduct. But the premise of
the talks, which included (as Hodge admitted it did) Hodge's describing the job to
them, was that the decision of who would fill it rested with him.
The incident bears out the understanding derived by the employees of what Hodge's
status was during his conversation with them. Moller testified that against the back-
ground of Fuldner's still subsisting announcement of November, when Foreman Osdol
told the employees that Hodge was the one to see about the new position, "we thought
[Hodge] was assistant superintendent." Homer testified that when we went to see
Hodge about it, "I thought he was more or less in charge of personnel as he always
had been." Elmer Hancock testified that when Hodge asked him how he felt about
the Union, he was "superintendent, that is what I understood it to be, and I think most
of the other boys did too." Adelbert Richter testified that when Hodge spoke to him
in February 1963 about the coming election, "it was my impression he was my boss.
Anytime I went above my foreman, he was the next in line."
In the light of all of the above, briefing counsel's total reliance on the testimony of
Fuldner and Hodge concerning the uncommunicated limitations it put on Hodge's
actual authority within its inner councils would seem to have about as much point as
would reliance on testimony by a president, in disclaimer of the supervisory status of
a superintendent, that the president nevertheless retained all power of decision in him-
self; nor is its position discernibly different from one that a board of directors might
advance to the effect that however exalted the president is in the eyes of the employees,
he is not even a supervisor because the directors reserve all power of decision in them-
selves. Management does not ordinarily bestow the appearance of authority on one in
EFCO CORPORATION 1509
whom it does not intend to vest it. Much as this would seem exemplified by the evi-
dence here, that ' is not the issue. Management gave the employees reason to under-
stand that Hodge was still in authority over them and, as management knew or had
reason to know, they so understood him. For purposes of the kind of issue here before
us, this is quite enough , whether on the theory that through April 1963 at least, he was
a supervisor within the meaning of Section 2 (11), as I find and conclude he was, or on
the broader premise that he continued to be, as he still is , so closely identified with
management that employees would and did , with management 's knowledge , reasonably
regard him as speaking for it on labor relations matters. N .L.R.B. v. Solo-Cup Com-
pany, 237 F. 2d 521, 524 (C.A. 8); and N.L.R.B. v. Arkansas-Louisiana Gas Co., 333
F. 2d 790 (C.A. 8), 56 LRRM 2623, 2627.E -
C. The requirement of job applicants to disclose their union affiliation
Since Respondent moved its plant to Monett in 1958, the form required to be filled
out by job applicants has included a space calling for: "UNION AFFILIATION IF
ANY -----------------------------
Respondent in its answer to the complaint states that it "has never required any
employee to answer that question ; nor has [it] any time ever used that question or the
answer thereto to interfere with , restrain , coerce, or in any way affect hiring or the
rights of its employees or the Union in violation of Section 7 of the Act or. as an unfair
labor practice within the meaning of the Act." Three former employees testified to a
rather active attention given to that question by Hodge when he interviewed them for
their jobs.7 Adelbert Richter testified that when he was hired in May 1962 he had
left the answer blank, whereupon Hodge said , "I see you didn 't put in anything there";
and he specifically asked him for an answer ; Richter explained he did not know how
to answer it because he had worked at a plant which had a union and "saw some of
the things that went on," but he did not really join , because it was not required. Paul
Thomas testified that when he was hired . in April 1962, he answered "no" to whether
he had belonged to a union . Hodge nevertheless asked him , "How do you stand with
the union , about the union ," explaining that "a year or so ago [when there had been a
Board election , which the Union lost] we had a little trouble with the Union. How do
you feel about it?" Thomas answered that he did not "know a thing about it," that
0 Respondent suggests that the broader base, exemplified by the cases cited in the
text above, is foreclosed here because the General Counsel in his complaint and at the
hearing relied solely on Hodge's supervisory capacity." The record refutes each facet
of that contention. The complaint alleges that "the individuals named below were dgents,
representatives, and supervisors of Respondent . .." [emphasis supplied], and the issue
of employer responsibility for Hodge's conduct was litigated on the plenary basis stated
in the complaint.
7 Despite the fact that Respondent itself put that item in issue by the portion of the
answer above quoted, and the apparent acquiescence in the receipt of that testimony at
the hearing, counsel on the brief claim that the testimony is foreclosed for all purposes
because the job interviews occurred earlier than 6 months preceding the original charge.
When the testimony on that point was initially given, though no objection was made to
it, I explained that it "cannot be the subject of an unfair labor practice charge,"
but "will be considered as to how events occurring within the 6 months are to be inter-
preted." Respondent contends that that evidence is nevertheless barred for all
purposes, under the, doctrine of Local Lodge No. 1424, International Association of
Machinists, AFL-CIO (Bryan Manufacturing Co.) v. N.L R.B., 362 U.S. 411. Even were
Respondent's interpretation of that doctrine correct, the significance of the item in issue
would not be altered in view of Hodge's and Fuldner's later recited admissions concerning
how it is still used. But it must be said that counsel have misread the doctrine of the
Local Lodge No. 1424 case. The court there was at pains to draw a distinction between two
uses of prelimination events; namely (a) one where the within-limitation conduct in issue
is "perfectly lawful on the face of things" and "can be charged to be an unfair labor prac-
tice only through reliance, on [a prelimitation] unfair labor practice," and (b) one
"where occurrences within the 6-month limitation period in and of themselves may
constitute as a substantive matter unfair labor practices" As to (a), reliance on a
prelimitation unfair labor practice which "does not simply lay bare a putative current
unfair labor practice," but only "serves to cloak with illegality that which was other-
wise lawful," is not permissible because it "results in reviving a legally defunct unfair
labor practice" (p. 417). As to (b) on the other hand, the use of prelimitation events
in clarification of conduct which "may" be an unfair labor practice in itself is a valid
application of traditional doctrine that "earlier events may be used to shed light on the
true character of matters occurring within the limitations period." (P. 416.)
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the union is only good where it is needed, and I don't think it is needed here." Hodge
replied, "Well, that's good." Billy Gray, employed in 1961, the ,year of the "trouble"
referred to by Hodge, testified that Hodge, after being satisfied with his qualifications,
called Gray's attention to the part of the application here involved and specifically
asked him whether he had "ever been affiliated with the union." Gray answered he
"had been," and Hodge said, "Well, I'm going to hire you, but if Terry Fuldner ever
looks at this application, he may fire you right on the spot."
Hodge was specifically asked about the conversations only with Richter and Paul
Thomas. He recalled neither of them, but testified that he had conversations of the
kind described by Richter with "all employees"; that he "went strictly by the applica-
tion" and "if it wasn't filled in where the question was I would ask him" to do so, as he
did with "all questions pertaining to the application"; and further that "if there would
be some kind of answer on it that looked questionable [he] would ask it." In thus
testifying to how he implemented that item in the application, Hodge gave no indica-
tion that he followed a different practice in the interviews that he conducted from
November through April 1963 in his then capacity from what he had followed during
his full superintendency before then. -
President Fuldner testified that the question "is a necessary and integral part of the
whole application," being "merely one of the many questions to help,[him] determine
the overall picture or qualification of the man seeking employment"; that a yes answer
is not fatal to a man's chances, he having instructed the supervisors to give no more
weight to that item than to the others, and, indeed, as shown by a chart which he pro-
duced and which was admitted in evidence, applicants have been hired and are still
working, who have given a yes answer.
Respondent contends that the item in the application was not a violation of Section
8(a) (1), and claims the sole criterion therefor to be whether it has "been applied in a
discriminatory manner." This is equivalent to saying that interrogation concerning.
union affiliation is coercive only when actually used as an instrument of discrimination
in violation of Section 8(a) (3). The criterion here, as with all violations of Section
8(a) (1), is whether, in the circumstances, it would have a normal tendency to restrain
employees in the free exercise of their rights under Section 7. See, T,ransamerican
Freight Lines, 122 NLRB 1033, approved as to this but remanded on other grounds
275 F. 2d 311, 314 (C.A. 7); Schott Metal Products Company, 128 NLRB 415, 430;
Clark Printing Company, Inc., 146 NLRB 121, footnote 3.8 Whatever might be about
whether requiring a job applicant to disclose his union affiliation does not inherently
tend to make him apprehensive that a yes answer would weigh against him, a require-
ment of that character would have such a tendency in the context here presented, some
of which consists of matters awaiting our later review. Deferring it at this time and
ignoring also Hodge's description to Gray of the dim view that Fuldner would take of
a yes answer, we have Fuldner's testimony that the applicant's answer on that score is
given some weight in determining his "overall ... qualification," an admission that
would invalidate the item even on the criterion advanced by Respondent. The coercive
tendency of the requirement is accentuated further by its use from the time of its insti-
tution contemporaneously with the removal from St. Louis to Monett. In later
detailed -statements to employees by President Fuldner, Hodge, and Forelady Tran-
tham before the election, that removal was explained as having had as its objective (as
an employee quoted Fuldner), "to get away from [the Union]." This is hardly calcu-
s Respondent cites three cases. Two of them (N L.R B' v Sebastopol Apple Growers
Union, 269 F. 2d 705 (C.A. 9), and NL.R.B. v. Ozark Dam Constructors (Flippin Mate-
rials Company), 190 F. 2d 222 (CA. 8)) concern a dispute over the very fact which is
here not in contest ; namely, whether an application form, which inquired about affilia-
tion with "organizations," called for disclosure of union affiliation,, the court in each
instance holding that the evidence did not warrant giving that part of the form such
an interpretation. In the third case, Parkhurst Manufacturing Company, Inc, 136
NLRB 872, Trial Examiner John Fischer recommended, dismissal of the portion,of a
complaint alleging 8(a) (1) on the basis of an' inquiry about union affiliation on a job
application blank. In so doing, he stated a criterion similar to what Respondent advances
here In a "short form" Order, the Board adopted without , Comment the, end-result
decision, which included resolutions of numerous other issues against that respondent,
and which went to enforcement, 317 F. 2d 513 (C.A. 8). Neither the Trial Examiner
nor the Board in Parkhurst mentioned,the Transamerican or Schott cases or their doc-
trine. It is hardly likely that the Board there intended to make any inroad on traditional
doctrine applying to such questions the "reasonable tendency" criterion applicable to
all 8(a) (1) issues. The contrary is indicated by the Board's recent express reaffirmance
in Clark Printing Company, Inc., supra, footnote 3, of the doctrine of Transamerican
and Schott. .
EFCO CORPORATION 1511
lated to reassure applicants on how a yes answer would sit with the employer, nor is
it calculated to reassure present employees, who were hired in spite of a yes answer, on
how such an item in their background would weigh with the employer in considering
his "overall qualification" in respect to a layoff or a promotion. Additionally, employ-
ees would have reason to be apprehensive that in a campaign of organization con-
ducted by the Union, an employer, who by his own avowal was driven to move in
order to "get away" from it, would take less than kindly to their support of it, and they
would have reason also to expect that during such a campaign, those employees whose
applications show a background of union affiliation would be marked for special
attention or watchfulness on the part of management, concerning their support of or
sympathy with the Union.
D. The conversations regarding the Union 9
1. President Fuldner
Rale Thomas and Frank Craker: About 2 weeks before the election of February 12,
Fuldner came to the table where Dale Thomas and Frank Craker were working.
Thomas testified:
He said, "Well, I guess you boys know what we are up against. I 'said, "Yes, I
heard of it." And he said, "Down there passing out these cards, trying to get a
union organized," 'and then he went on to say how it would hurt us, it couldn't
help us in any way. And then he said, "If you have or if you plan on signing these
cards, this doesn't mean that you will be fired or lose your job or anything
like that, but," he said, "Be sure and think twice before you sign one of these
cards." ,
Thomas further testified that he "asked [Fuldner] some questions about the
union," and:
He told us that, as far as he was concerned, he did not want the union in
there, and anyway, it could not help us. He said they first got away from
this in St. Louis, and said, "We moved down here to get away from it," and
he said "We are going to try to keep away from it if at all possible." He
again told us to be sure and use our judgment about signing.
Craker, who according to Thomas was "out of earshot for a little while," quoted
Fuldner as saying that "his company, like anybody else's, was too small to absorb
that added payroll and ... if the union came in they would have to fire to absorb
the added expense. If the union did get in he and his supervisory personnel would
still have full control of the plant and they could fire and hire whom they please."
The discussion also covered items such as Fuldner's description of arbitration
procedures, his answer to Thomas on whether "in case the union got in would it
be as good as what we had," that "he did not know at the present time what the
union had to offer," giving the, same reply specifically in respect to "vacations and
fringe benefits," and a second reassurance that signing a card "doesn't mean you
will lose your job," and reminding them again to "think twice before you do."
6 Respondent claims the charges as filed by the Union do not lay a proper' foundation
for the 8(a) (1) allegations of the complaint as issued by the General Counsel. The
original charge, served June 14, 1963, stated that on February 13, 1963, Respondent
discriminatorily laid off a number of employees, and that thereby "and by other acts and
conduct, [Respondent) interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act." Such a general charge of
violation of 8(a)(1) filed by a private party has been sustained as a valid foundation for
particularized 8(a) (1) allegations in a complaint as issued by the General Counsel See
N.LR.B. v. Kohler Company, 220 F. 2d 3, •6-7 (CA. 7), and cases cited; National
Lvcomce Company v. N L R.B, 309 U S. 350; N L R B. v. Pant Milling Company, 360
U S 301 Respondent's I sole reliance is on N.L R B v LB S. Mfg. Co., 210 F. 2d
634 (CA 5), where a charge alleging discrimination was held not to-be a proper founda-
tion for a complaint alleging a refusal to bargain. That same court, under the prin-
ciple that "the charge should . . be construed broadly so as to allow any specific
allegations in the complaint that are of the `same general nature' " (Kohler, at p. 6), has
upheld, as a proper foundation for a particularized '8,(a) (1) complaint by the General
Counsel, a charge by a private party, like the one here, which attributes to an employer
an act of discrimination and interference with employees' organizational, rights by that
and "other acts or conduct " N L.R.B. v Raymond Pearson, Inc., 243 F 2d 456, 458-459
(C A 5); and cases cited.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fuldner testified it was "essentially correct" that he opened with "Well, I guess
you boys know what we are up against," as was also the reminder to "think twice,"
it being "from the standpoint of weighing both sides of the-picture." Fuldner
denied making the statements attributed to him by Craker, and in response to
whether he discussed that subject in a way that might have given "the witness [a]
distorted or ... wrong impression," he indicated he had often stated "the economic
impact on the corporation from the standpoint of wage demands and what they
would do to us," and that his statements "were designed to electioneer and state
the position of EFCO Corporation from a statement of fact and what had gone on
before and in other plants." He was not asked about nor did he. deny telling
Thomas Respondent had moved to Monett "to get away from [the Union]." In
response to my question of whether "there was some operation in St. Louis that
was discontinued and brought over here," he stated, "We were economically
squeezed from a working standpoint and floor standpoint and we did not have the
money to expand in St. Louis because they had no plans of assistance up there."
The "economically squeezed from a working standpoint" part of his answer is con-
sistent with the undenied statement Thomas attributed him, and like the statement
attributed to him by Craker about Respondent's capacity to maintain the size of
the work force under the added costs of a unionized plant, would be a matter to
which the admitted "you boys know what we're up against" would be the natural
opening., (A similar appeal was attributed to Hodge in two conversations later to
be related.) Thomas and Craker are credited.
2. Superintendent's Assistant Hodge
a. Credibility
Six witnesses implicated Hodge in eight conversations. Respondent asks that
we discredit the lot of them as against Hodge (except where he expressly admitted
,a part of what was attributed to him; namely, interrogation of Charles Homer and
Dale Thomas). Respondent impugns the witnesses as a disgruntled crew, who
quit with a feeling of aggrievement. This cannot be said of the two who are
still there, Moller, who implicated Hodge in three conversations, and Elmer Han-
cock, who testified to a single act of interrogation. Neither can it be said of Dale
Thomas, who, as company counsel elicited from him on cross, had not "been con-
nected with the Union in any way," and as the previously treated account of his
conversations with Fuldner indicates, was not prone to exaggerate. Adalbert
Richter was not a union enthusiast either, and he quit to go into business for him-
self after being frustrated in his aspirations to become a foreman. Billy Gray and
Charles Horner had been supporters of the Union. Gray quit of his own accord,
and, in response to a subpena, came from California in order to testify. Horner
was one of about a dozen employees in respect to whom the Union filed charges
of discrimination, which the General Counsel, on investigation, concluded did not
warrant prosecution. These were a 6-week layoff of him and 10 or 11 others the
day after the election (which the Union won) and his quitting the job about a
month after his "return, under pressure, as he claimed, of an unfair accusation
that his work was substandard, which, like the layoff, he attributed to his support
of the Union.
Gray and Horner thus had a bias, as perhaps so too did the self-valuing Richter,
for a different reason. Weighing their testimony against that of Hodge, who had
a bias of his own, it must be said that their testimony, like that of the other
three, did not appear contrived and had the kind of inner and mutual consistency
which called for more than what Hodge gave us. He did not give us much. What
he did was to excise the damaging part from the remainder, and meet it with a
bone-dry denial. Asked to give his version of any of these conversations, he drew
a blank. At times, without referring to any particular conversation, he would
volunteer that he merely answered questions. But in every instance except the
previously stated ones where Moller and Homer came to see him about the newly
opened job and one with Lawrence Strauss, as described by Billy Gray, it was he
who approached the employee and began the conversations.- As to the one or
two-he admitted he had begun by coming to the worktable he explained that, in
accordance with his custom with all employees, he came to them to talk about
their "work," a reason which undermined the credibility of his previously treated
disclaimers that he retained any authority over production. We have earlier
referred to the portion of his testimony, in which he was asked to state the sub-
stance of - a conversation which he claimed was about the employee's "work" (it
referred to his third one with Moller, which was after the election),.oand he
EFCO CORPORATION 1513
answered after long hesitation, that it was about an "order," again with no inkling
as to content and with self-defeating belatedness, since had that been why he came
to Moller, he would have said so from the start. And there was also his dis-
credited answer, previously treated, concerning the length of his assistantship to
Kennedy after the latter succeeded him as superintendent. Hodge's testimony was
not of a quality which can be said to have stood up against the high probability
of truth borne by the mutually consistent testimony of six witnesses, some still
employed, some not, and all giving versions which were not shaken on cross-
examination and did not have earmarks of falsification or exaggeration. The con-
versations hereafter recited are based upon the credited versions of these wit-
nesses. The version in each instance was that of the employee to whom Hodge
spoke, except that the one with Lawrence Strauss (who did not testify) was nar-
rated by Billy Gray, who witnessed it.
b. The statements
Jerry Moller (first conversation with him): About 2 weeks before the election
Hodge came to Moller's table. The talk "got around, to union," and Hodge
"started giving all the points of EFCO . like a break in the -afternoon and
morning, and he asked [Moller] how he felt about the union." In the course of
it also, Hodge stated that "if the union did get in, we will have to start all over
about getting breaks and vacations and all that." 10 Moller testified "I got angry
and he just-I told him that I already had made up my mind how I was going
to vote and that ended it."
Moller (second conversation with him) and Charles Horner: As related in the
prior portion dealing with Hodge's status, about a week or a week and a half
before the election, pursuant to Foreman Osdol's telling the employees that Hodge
was, the one to see about it, Moller and Charles Horner were among the four or
five who went to speak to him about a newly created job in the department. Each
had a separate conversation with Hodge and on receiving the details of the job
from him, they in fact lost interest in it. But this matter they narrated dealt with
the discussion while they still had an interest in it. Hodge, after speaking to
Moller encouragingly of his chances, concluded with, "Of course, I can't promise
you nothing until after the election."
To Horner too Hodge said he "had a chance at it," and before he left "asked
[him] how [he] felt about the union." Horner said he "couldn't see it did [him]
much good" at prior places of employment, but he "didn't know anything about
this one." Hodge related that "EFCO had borrowed a large sum of money in the
last few months and that they had a year to pay this money back" and "if they
had to pay these wages it would be impossible to be in business a year later."
Hodge also told Horner that "if the union was defeated that there probably would
be a raise." 11 The background context of this remark was a raise which, as
Hodge pointed out in his later detailed conversation with Lawrence Strauss,
Respondent had given after the Union lost the election of 1961.
Dale Thomas: About a week before the election, Hodge walked up to where
Thomas was working and addressing him by name, asked, "What do you think about
this union deal?" Thomas said he "wouldn't commit" himself, and Hodge said, It
can't do us no good in any way.... We are just a young company trying to get ahead.
. It could only hurt us, slow us down.. •.. If you do want to know anything about
it, come over to my office and I will be glad to go through the whole thing and
explain it all to you."
10 This last, omitted by Moller on direct, was elicited by company counsel on recross
in response to whether Hodge ever "threatened" him with discharge or a wage cut, the
answer in each instance being no, and then in respect to "fringe benefits," the answer
being what is recited in the text. I asked Moller why he had omitted it
on direct, and he answered "I just now remembered." I asked that he "tell us what
you remember about it," and the witness repeated the version recited in the text. Com-
pany counsel asked if he was "telling us what Bill Hodge said or what your inter-
pretation is of what Mr. Hodge said," and he replied, "I am telling what Mr. Hodge said."
"This last item too was elicited for the first time on cross-examination in response
to whether Hodge had ever "threatened" the witness with loss of his job or a wage cut,
the answer in each instance being no, and finally whether "he ever made any promises
if you would be on EFCO's side," the answer being, "No, he never made any promise.
He said if the union was defeated there probably would be a raise."
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elmer Hancock: During the same week, Hodge came to where Hancock was
working and asked him how he "felt about the union," receiving the reply "I thought
it would be a good thing for EFCO."
Lawrence Strauss: Strauss did not testify, and, as earlier mentioned, Hodge's con-
versation with him was narrated by Billy Gray, who was part of a group listening
to it. Gray testified that the conversation was in fact started by Strauss about 5
minutes before closing time. Strauss told Hodge he "hadn't fully made up his mind
. about the election" that he "heard the union side from the employees," and in
order to "get both sides of the story," he "wanted to get the management side" from
him. Hodge related that "the reason that EFCO Corporation moved from St. Louis
to Monett was that they had voted a union in St. Louis and the operating costs
became so great they had to close the doors, and that they moved to Monett because
they would get cheaper labor there, and their operating costs wouldn't be so great."
Gray testified he took this to mean that if the Union won, Respondent would have to
move the plant elsewhere.12 In that conversation, Strauss asked Hodge "if the
Union was voted out . . . would [he] receive any increase." Hodge replied, "We
received a 10 cents an hour increase when they voted it out." Hodge thereby indicated
that the answer to whether Respondent would grant a raise if the union was defeated
in the present election was to be found in what it had done when the Union was
defeated in the 1961 election.
Adelbert Richter: On the Friday before the election, Hodge came by Richter's
machine and asked, "What do you think about the union?" Richter said he did not
yet know how he would vote, and Hodge urged him to "think about it," saying "this
company has done the best we can to provide good working conditions." He men-
tioned paid vacations and extra fringe benefits, such as "medical and our breakfast
every day," adding, that "all of these will be taken away from you if the union comes
in." The conversation ended with Hodge saying, "I am not telling you how to vote,
but I wish you would think about it."
Jerry Moller (third conversation with him) and Billy Gray: About a week after
the election, Moller attended a meeting of the Union in Joplin. The next morning
Hodge came to Moller's worktable and (with Gray nearby) asked whether he had
been to the meeting.13 Moller replied he had, and Hodge asked, "Did you learn any-
thing?" Moller replied, "You-might be surprised," and asked why Hodge had not
gone; Hodge said "he wasn't invited," and Moller said he thought all could attend
who wanted to. Hodge then turned to Gray and said, "It looks like that crazy guy
will never learn anything, doesn't it?" Gray testified, "I jokingly agreed with him,"
adding that "the basis was we had an election for the Union before and it was
defeated and Jerry had voted for the Union at an election before and he was out of
work for a period of time after that election when it was defeated." Moller testified
that after Hodge left he and Gray "kind of joked about Bill coming up and asking
me if I went to the meeting or not."
Respondent contends that Gray's testimony that he "jokingly" agreed with Hodge
and Moller's testimony that he "jokingly" talked with Gray about Hodge's question-
ing him drains the incident of significance. Laughter is a valued attribute, and few
situations are not made the brighter for it. Yet it does not follow that it invariably
has the neutralizing quality Respondent claims for it.14 The statement that the crazy
guy will never learn anything," made to Gray on the heels of his eliciting from
12 Gray first testified he interpreted it to mean Respondent "would have to close the
doors and move to Arkansas " This gave the impression that the witness was quoting
Hodge, so I asked him how "Arkansas came to be mentioned [sic]." The witness
indicated that the morning after the election Fuldner "told us the union won the election"
and, "If that is what you want, that is what you are going to get" Also:
Immediately after the election Mr. Fuldner disappeared He wasn't in the plant
for several days and they wondered where he was The union won the election
Mr. Fuldner disappeared. He was gone
I again asked how Arkansas entered into the picture, since Hodge's conversation with
Strauss was a week before the election The witness replied, "I will retiact Arkansas
until later. He said move the plant." The witness had thus been giving his interpreta-
tion of Hodge's statement in a total context which included events immediately after the
Union's victory in the election.
11 This was the conversation Hodge testified pertained to Moller's "work," and then
to an "order " "
14 See, e.g., A. P. Green Fire Brick Company v N.L R B , 326 F. 2d 910, 914 (C A. 8).
EFCO CORPORATION 1515
Moller in Gray's presence a yes answer to whether he had attended the union meet-
ing, reasonably referred to the element in Moller's prior job experience, which made
that characterization meaningful . To be noted also is that the statement was made
during an existing layoff of about a dozen employees, which occurred the day after
the election. To make that point entirely clear, it should be emphasized that the
Union's charge that the layoff was discriminatory was dismissed by the General
Counsel , and though it was not an accusation that the Respondent was obliged to
meet , I nevertheless , over the General Counsel 's objection and to dispel any inuendo
which might lurk in the record concerning the motivation for that measure , permitted
resident Fuldner to explain the genuine economic motive for it and the nondiscrim-
inatory manner of selection . But though the layoff and the manner of selection were
legal, for a management representative to suggest in such a context that an employee's
lingering support of the Union shows he was too "crazy " to "learn anything" reason-
ably conveys that he has not yet grasped management's preelection message of the
futility and indeed the peril courted by supporting the Union.
3. Forelady Trantham
Dale Thomas: Thomas testified that a day or two after President Fuldner spoke
to him, Francis [sic] Trantham, his forelady, came to where he was working and
said, "You know you surprise me." He asked why, and she said, "I didn't know you
were so strong for the union ." Thomas protested he was "neutral ," and she said,
"I know you are for the union since we were over on the other side of the building."
"In a joking way," he "asked her how she knew," and "she said she knew," and "she
said to think twice before [he] signed any of these cards because the union could not
help us in any way."
Charles Horner: Horner testified that about 2 weeks before the election Mrs.
Trantham asked him if he "knew anything about these union cards or who had been
passing out the cards." He "told her no, and she was pretty sure [he] did because
they were sure who signed them." Homer testified she also told him "the union
could do us no longer any good. They had moved from St. Louis because of it."
Trantham's versions: Mrs. Trantham testified she had a conversation with Thomas,
which she was "sure " was "before the election" because it concerned "insurance,"
that in response to his asking her to do so, she compared the policy at Monett with
what "we had in St. Louis." She did not "remember" whether any other subject was
mentioned or whether "the union [was] ever mentioned ." As to "think twice before
you sign or join the union," she "may have said it while we were talking about the
insurance ... I can 't remember."
As to Horner, she denied asking him "approximately 2 weeks before the election
... if he knew about the union." She did not indicate whether she had any con-
versation with him relating to such a subject at any other time, nor was she specifi-
cally asked about the other statements imputed to her; namely, her telling Horner
she was "sure" he knew who had passed out the union cards because Respondent was
"sure who signed them" and that Respondent "moved from St. Louis because of
[the Union]."
On whether she told Thomas (after he fended off her remark about being "strong
for the union," by professing to be "neutral") that she knew he was "for the union,"
she testified she made such a statement to him "a long time ago, even before the first
election," because "some of his fellow workers told me when he was on the night
shift he did quite a bit of union talk."
Resolution of conflict: Fellow workers do not ordinarily volunteer information of
the kind described by Forelady Trantham unless they are asked, as Homer testified
she asked him before the present election. In talking to Thomas before this election,
as he admitted she did , her objective was the same as during the preceding one-to
accomplish the defeat of the Union. Trantham never indicated what if anything
would have impelled her to forego during the present election the methods she vol-
unteered she used for the same objective during the earlier one. Trantham's testi-
mony, featured by piecemeal revelations of undermining details, a claimed inability
to remember whether the Union was as much as mentioned in a talk whose sole sub-
ject under her own version closely bore on how the employee should vote at the
election ; a denial of Horner's testimony , having aspects of a negative pregnant; and
the admission of conduct during the preceding election akin to that imputed to her
in the present one, tends to corroborate the unshaken versions of Thomas and Horner.
On total balance, including the manner in which the testimony was given, the weight
of credibility is in their favor, and they are credited.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. General Foreman Burleson
George Kirkendall: Employee Kirkendall testified that in February 1964 (about
a year after the election), he asked Louis R. Burleson, the general foreman, "about
the possibilities of a raise in the immediate future" and that Burleson answered that
he "felt almost certain we would get a raise ... when this union activity was settled";
that Kirkendall asked why the raise was not given "immediately if they intended to
give [one]" and that Burleson "laughed [and]" said that "Terry Fuldner, knowing
Terry Fuldner as bullheaded as he was wasn't about to give a raise until this union
activity was cleared." Burleson testified his answer was that he "wasn't the one to give
[the raise] and [he] wouldn't promise it to him." The testimony concerning his reply,
in manner and content, was an evasion since he could hardly have made a reply so
unresponsive to the information that he knew the employee was seeking from him.
Kirkendall is credited.
As to how Burleson's actual reply to the employee is reasonably to be interpreted,
a fair indication of its meaning is the one on which company counsel premised his
own question to the witness, thus:
Q. Did you say you thought there might be an almost certain raise if the
union was voted out?
A. I don't recall saying that.
An employee would reasonably interpret Burleson's answer to Kirkendall in the
same manner. To be sure, since the election had already taken place and the Union
was certified, the "voted out" terminology does not literally apply. But a certifica-
tion is not an end in itself; it is the "end of the beginning," in that the employees have
thereby brought the employer under a duty to bargain with them collectively through
their designated agent. The agent's effectiveness in the negotiations hinges on the
continued adherence of the electorate to it, and after the expiration of the 1-year
period (in which the exclusive representative status under the certification is invulner-
able to even a loss of majority, Ray Brooks v. N.L.R.B., 348 U S. 96), the exclusive
agency status of the certified representative is vulnerable if by then there are defec-
tions in sufficient numbers to warrant a "good-faith doubt" in the employer that it
still has a majority. Celanese Corporation of America, 95 NLRB 664.
As President Fuldner described the current situation, it has been one of continuing
impasse since July 1963. He testified that on July 13, 1963, after "extensive nego-
tiations [which were] attended by a Federal mediator," on the latter's suggestion, "it
was agreed to abandon any further attempts until one of us had something to meet
on." Nothing else appears in the record concerning that matter, and we know nothing
of the nature of the impasse. But an impasse does not of itself terminate the certified
representative's status as exclusive bargaining agent. That is so even if because of
the impasse the employer is now free to grant a raise unilaterally without running
afoul of his bargaining obligation under 8(a)(5) (depending on whether it is one
which in the negotiations he offered and the bargaining agent rejected, as distinguished
from one which the agent requested and the employer refused to give. N L.R.B. v.
Crompton-Highland Mills, Inc., 337 U.S. 217). But an employer may not con-
sistently with 8(a)(1) condition a raise on the repudiation by the employees of
their certified representative, whether the raise be one which, after an impasse, he
may not grant unilaterally, or on,- which he may thus grant consistently with his
8(a)(5) obligation.
The fair sense of what Burleson was conveying to the employee is to be derived
from the total context. Before the election, Respondent was seeking to have the
employees reject the Union on the plea, among others, that it would in effect mean a
frustration of its "cheaper labor" objective in moving away from St. Louis to Monett,
that it would do them "no good," and that, as had happened after the previous elec-
tion, the employees would get a raise if they rejected the Union this time too. Thus
the pitch before the election was that the employees could not hope for improvement
in working conditions through the Union and that any improvement had to be from
Respondent directly, without the Union in the picture. The reasonable import of
Burleson's statement in total context, was that Respondent, through President Fuldner,
was holding up a raise it was otherwise willing to give until it no longer had to deal
with the Union. This hinged on the employees repudiating or abandoning the Union
as their bargaining agent.
E. Concluding findings
To bring matters into proper focus, we repeat that an inquiry under 8(a)(1) is
concerned not, as in an 8(a)(3) case, with the motive for the conduct, but its effect
EFCO CORPORATION 1517
on the employees. This last means not its accomplished effect but its reasonable
tendency. As has often been stated:
The test is whether the employer is engaged in conduct, which it may reasonably
be said, tends to interfere with the free exercise of employee rights under the
Act. N.L.R.B. v. Illinois Tool Works 7 Cir. 153 F. 2d 811, 814. N.L R B. v
Link Belt Company, 311 U.S. 584, 588, 598-600 . . ; N.L.R.B. v. Aintree
Corp. 7 Cir. 134 R. 2d 419, 472, certiorari denied 318 U.S. 774 . .. .15
To be kept in mind also is that under review here are not disjoined events occurring
"individually and in isolation," but a course of conduct, in which the component parts
are viewed "cumulatively and compositely as well, in arriving at [the proper] infer-
ences and conclusions." The Canyon Corp v. N.L.R.B., 128 F. 2d 953, 955 (C.A. 8).
This is not to say that no conduct is capable of evaluation without added context.
Others are appeals to reason that cannot be stretched beyond the legitimate domain
of argument and opinion even if made in a context of coercive statements. Examples
of each appear in Hodge's conversation regarding fringe benefits with Adelbert Richter
and Jerry Moller. His reference to the fringe benefits already enjoyed by the
employees was a legitimate argument for continuing the existing mode of -individual
as against collective bargaining. On the other hand, his statement to Richter that if
the Union came in, the employees would lose these benefits, and his statement to
Moller that the employees would "have to start all over about getting [them]," were
warnings of the adverse action Respondent would take in the event the employees
should choose the Union. Their coercive tendency was not neutralized by Hodge's
preliminary reference to these benefits. N.L.R.B. v. New England Upholstery, Co.,
Inc., 268 F. 2d 590, 594 (C.A. 1).
A similar instance appears in Forelady Trantham's conversation with Dale Thomas
(that is, if we add to his credited version that she countered his protestation of
neutrality with the statement that she knew he was for the Union, the further item,
to which she testified) where she compared the insurance policy at Monett with the
one in St. Louis. This last was an argument within the legitimate protection of
Section 8(c) and, though it was such, it did not neutralize the coercive tendency of
the impression of surveillance conveyed by her statement to Thomas and, even
more pointedly, in her statement to Homer (when he professed not to know the
answer to who was passing out the union cards), that she was "sure" he knew because
Respondent was "sure who signed them.". Neither did that argument lose its pro-
tected character because of her other coercive statements as described. . Similarly,
Hodge's promise of a raise, even if made at the end of his respective conversations
with Horner and with Strauss, were not within the protection of 8(c), whatever might
be said of the remainder of his separate talks with them, to be treated later.
These are instances where the character of the statements inheres in their content,
and just as the threat or promise is not dependent on its context for inferring its
reasonable tendency to coerce, so does a statement which is indisputably a mere
argument not lose its 8(c) immunity because it is made with other statements which
do not have it.
Not all statements or conduct, however, are thus independent of a context for
their interpretation. It is normally the other way. The classic instance under con-
trolling doctrine , of course , is interrogation concerning union affiliations or sympathy.
Under controlling doctrine, an isolated question of that character, while not protected
as an expression of views, argument , or opinion , is not coercive , unless the total con-
text gives it that connotation. Some of, the acts of interrogation here considered
occurred in the very conversations in which'the coercive statements as found were
made-like Trantham's asking Horner if he knew who passed out the union cards,
before telling him Respondent knew "who signed them," and Hodge's asking Moller
and Richter how they felt about the Union with which he started the conversation
culminating in the,threat that the fringe benefits would be removed if the Union
won, and his similar inquiry of Horner preceding his promise that there would prob-
ably be a raise if the Union lost. However, whether the interrogation has a coercive
thrust turns not merely on the context supplied by the conversation itself, but on the
total context. This is so in the case of Hodge's like question to Dale Thomas, what-
ever might be said for his statement that followed it, and his question to Elmer
Hancock, which was not followed or preceded by any other statements. And I would
think that Hddge's questioning of Moller in the presence of Billy Gray, about a week
after the election, concerning whether he attended a meeting of the Union the
Is N.L.R.B. v. Wilbur H. Ford, d/b/a Ford Brothers , 170 F. 2d 735 (C A. 6.)
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previous night and had "learned anything," followed by the statement to Gray that
"that crazy guy will never learn anything," was coercive within its immediate context
and the total one supplied by Respondent's actions as a whole.
What has been said above concerning the oral interrogation of employees on the
job applies with greater force to the item on the job application calling for disclosure
of union affiliation. Whatever might be said for or against the premise that that
kind of an inquiry, "in the absence of disclosed and legitimate reason therefor,"
would normally tend to make an applicant apprehensive that disclosure of union
affiliation would weigh against his chances on the job,16 the context of Respondent's
other conduct as previously reviewed would indicate that such a question would
reasonably tend to make an applicant fearful that a yes answer would lessen his
chances; and the very act of keeping that question in continuous force would reason-
ably make the employees themselves apprehensive that during employment, informa-
tion on an application showing a background of union affiliation marks the employee
for special observation in future union campaigns, and weakens him competitively
in selection for layoff or promotion. We have previously noted Fuldner's admission
that the answer to the question is given some weight in determining the applicant's
"overall ... qualification," and the fact that the question has been in continuous force
from the time of Respondent's removal to its present location, which in management's
"electioneer[ing]" before the election, was explained to the employees as being in
order "to get away from [the Union]." This brings us to an independent evaluation
of that statement and of the corollary references to the adverse economic sequels to
a union victory.
We have previously treated with the statements of Hodge to Moller and Richter that
if the Union won the fringe benefits would be lost. These present no problem, since,
under case lore too replete to need specific citation, they are invalid threats of "loss
of benefit and economic reprisal." 17 The same applies to Forelady Trantham's
statement to Horner, made in the context of coercive interrogation concerning the
identity of the Union's protagonists and the creation of an impression of surveillance,
that the Union "could no longer do us any good," and that Respondent "moved from
St. Louis because of it." Thus unqualified, it implied that in selecting the Union, the
employees courted a similar peril to the plant's being kept in its present location.
A more involved issue is presented where the employer links the step to inability
to meet projected union demands, as in Hodge's statements to Horner, Strauss, and
Dale Thomas, and Fuldner's statement to the latter and Craker. The Board in a
series of recent decisions has indicated that such statements, based as they are on
assumptions of what the union demands will be and how it will try to enforce them,
before the Union has even begun to bargain or been chosen for that purpose, may
well be veiled threats of how the employer will react to the employees electing to
deal with him through a union, rather than a genuine forecast of economic necessity,
even though couched in such phraseology. It has so held where an employer said
the Union "would make excessive demands which would force Respondent to elim-
inate overtime and to close the plant within 120 days" (Miller-Charles and Company
146 NLRB 402), or threatened to close the plant "predicated upon his inability to
meet union wage scales, an assertion not supported by record evidence." Johnnie's
Poultry Co., 146 NLRB 770. See also Remington Rand, 141 NLRB 1052; Texas
Industries, 139 NLRB 365.
The above substantially accords with judicial pronouncements that "an employer's
`prediction' of untoward economic events may constitute a threat if he has it within
his power to make the prediction come true." International Union of Electrical,
Radio, and Machine Workers, AFL-CIO (NECO Electrical Products Corp.) V.
N.L.R.B., 289 F. 2d 757, 762 (citing cases), and that a statement "that it might be
necessary to close the plant, made during a period when unionization of its employ-
ees was sought to be effected, must be regarded as coercive, notwithstanding sincere
belief that such result would follow." United Fireworks Mfg. Co., Inc. v. N.L.R.B.,
252 F. 2d 428, 430 (C.A. 6), and as put by that court still more strongly, "even
though such statements may be expressive of opinion only, if their reasonable tend-
ency is to coerce, they are violative of Section 8(a)(1)." N.L.R.B. v. E. S. Kings-
ford, d/bla King's Motor Car Co., 313 F. 2d 826, 832 (C.A. 6) (citing cases).
16 See Trial Examiner Schneider's rationale in Transamerican Freight, 122 NLRB at
1043, and the Board's reliance in Clark Printing Company, Inc.,- supra, on the failure
of the employer there to advance "any valid justification for inquiring into job ap-
plicants' union affiliation "
17 Compare. e g N L R B. v. Marsh Supermarkets, Inc, 327 F 2d 109, 111 (C.A. 7),
cert. denied 377 U.S. 944 (" if a union got in . . . we [will have to] st;irt from scratch").
EFCO CORPORATION 1519
Some courts, while upholding the Board's finding of coercion in the given instance,
have stated a distinction, as did the court in N.L.R.B. V. New England Upholstery
Co., Inc., 268 F. 2d 590, 592 (C.A. 1), between a statement that "if the union won
[the] department would close down," which is coercive, and one that "if costs
increased due to recognition and negotiation with the Union it would be necessary to
shut [it] down," which "in itself" is within 8(c) protection. Chief Judge Biggs sug-
gested a like distinction in N.L.R.B. v. Morris Fishman and Sons, Inc., 278 F. 2d
792, 796 (C.A. 3). In so doing, he stated that the determination of whether a given
statement falls in one category or the other hinges on "the context of the statement,
the characters and economic positions of those who heard it, and the relationship
between a company and its employees."
The Board's standard is substantially the same. This is exemplified by the exon-
eration of the employer, under the circumstances presented in such cases as Henry I.
Siegel, Co., Inc., 143 NLRB 386 (with court approval 328 F. 2d 25 (C.A. 2), and
Texas Boot Manufacturing Co., Inc., 143 NLRB 264. Chairman McCulloch, in
his concurrence in the Miller-Charles case, drew a distinction between what in essence,
was "a reasoned explanation of the costs problem, unaccompanied by threats or
other unlawful conduct" coupled with an assurance that "if you vote for the union,
my feelings will not change," as in Henry I. Siegel, and one where, as in Miller-
Charles, despite the language of economic imperative in which it was couched, the
"statement to employees in context [was] a threat to future employment if an outside
union were selected as bargaining representative." [Emphasis supplied.]
Applying the above standard, Fuldner's statement, as Dale Thomas quoted him,
assuring him and Craker against discrimination if they supported the Union, is indeed
entitled to favorable weight. Yet the absence of any reassurances concerning how
the group as a whole would fare if they elected the Union is made the more pointed
by his statement that "he did not want the union in there," that "we moved down
here to get away from it" and would "try to keep away from it if at all possible."
Like Forelady Trantham's statement to Horner, this implied that just as Respondent
moved from St. Louis to "get away" from the Union, so to might a victory for the
Union prompt Respondent to like action here. That and his statement that "if the
Union came in they would have to fire to absorb the added expenses" had its counter-
part in Hodge's statement to Horner, when the latter went to see him about the newly
opened position, to the effect that the Company would fold after a year under a union
scale of wages, and to Strauss that it "moved to Monett because they would get
cheaper labor there." In each such instance, Hodge coupled this with a promise that
if the Union lost, the employees would receive a raise. In total context, the conno-
tation was one of rewarding the employees if the Union lost and that if it won, such
an outcome would imperil Respondent's remaining in .Monett or keeping all the
men on the job.
While it would appear from the total context before the election that whatever the
niceties of phraseology, such would be the employees reasonable interpretation of
these statements, another legitimate item in the total context is what happened imme-
diately after the election. To make that point clear, it is again noted that on the
motivation for the layoff and the selections made, though the Union in its charge
claimed they were discriminatory, the General Counsel, after investigation, concluded
Respondent was in the clear, and, in his complaint, did not ascribe any illegality to
that action; also, at the hearing, over the General Counsel's objection, Respondent
was permitted to show the genuine economic motive for the step and the nondis-
criminatory basis for the selection made. However, the issue here is not the legality
of the layoff but of the preelection statements: how, in the light of such an occurrence
would employees be likely to interpret management's preelection warning of detri-
ment in the event of a union victory, and how free are they likely to feel about
supporting the bargaining agent they have thus selected? As indicated earlier, the
selection of a bargaining agent is not the end of the journey: it is merely the end of
the first step in it, in that now the employees have succeeded in putting the employer
under a legal obligation to bargain collectively with them through their elected repre-
sentative. But if the representation is to be meaningful, the bargaining agent must
retain the support which the employees have given it in the election. The employees
would fear to give it if led reasonably to believe that they are thereby courting retalia-
tion by the employer to the group. Management statements that a victory for the
Union will have "untoward economic" results 18 would all the more convey a message
of punitive intent in a shortly ensuing context of an occurrence in seeming con-
1s International Union of Electrical, Radio, and Machine Workers, AFL--CIO V. N.L.R.B.,
289 F. 2d at 762.
775-692x68-vol. 150-97
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formity with the warning. Respondent, when these statements were made, already
knew it would put the layoff into effect. Fuldner explained it was due to the pe-
rennial drop in business in the winter, and that the layoff would in normal course have
been made earlier except that he put it off till after the election in order "to keep our
personnel on so that they could hear our side of the story, and my words, you might
call it electioneering." There is no indication that he told this to the employees
beforehand so as to obviate their linking it with the result of the election, in the
manner implied by the electioneering statements. Hardly calculated to dispel the
employees thus linking the layoff with management's preelection warnings were the
other occurrences the day after'the election; namely, Fuldner' s announcing the result
with the statement, "If that is what you want, that is what you are going to get," and
coupling the layoff with a departure tending to give color to the implication that
underlay management's preelection explanation that it had moved the plant to its
present location to "get away" from the Union. The preelection warnings, made as
they were with management knowing it would take the postelection action that it
did, were calculated to-insure the preelection statements achieving an impact in the
event of a union victory that they might fall short of attaining in the voting booth,
thereby in effect bringing home the lesson of the futility of such a choice that man-
agement was underscoring in its electioneering statements. Management's confidence
that its preelection message had now taken hold is reasonably reflected in Hodge's
characterization of Moller's attendance of a union meeting a week after the election.
The statement that "that crazy guy will never learn anything" is a rather singular
way to characterize an employee's supporting a union which, despite management's
preelection warnings, achieved a vote of confidence from a majority of the employ-
ees only the week before, unless the employees' vote of confidence notwithstanding,
some supervening event has served to vest the preelection warnings with a seeming
significance that an employee whom it eluded before the election would have to be
"crazy" to fail to grasp now.
The conclusion is that in total context, Hodge's statement of loss of fringe benefits
in the event of a union victory as made to Moller and Richter, his statements to
Homer, Strauss, and Dale Thomas calculated to convey that a union victory would
cause Respondent to discontinue operations in Monett, coupled with promises to
Horner and Strauss that the employees would be given a raise if the Union should
be defeated, Trantham's and Fuldner's statements attributing the removal to the
present location to a desire to "get away" from the Union, and Fuldner's statement
of a reduction in force that would be necessitated in the event of a union victory,
Hodge's "crazy guy" characterization of Moller's continued support of the Union
after the election, and during a layoff occurring a day after the Union's victory, and
General Foreman Burlson's statement that Respondent would grant a raise on the
contingency, implied in his reference to the Union, that the employees repudiate the
Union as their bargaining representative, when viewed "cumulatively and compositely"
(The Canyon Corp. v. N.L.R.B., supra, at 955), reasonably tended to convey to the
employees as a body that their rejection or repudiation of the Union as bargaining
representative would be rewarded and their selection or adherence to it would be to
prompt management to take detrimental economic measures, such as removal, shut
down, reduction of force, or elimination of fringe benefits.19
By all of these acts in combination, including interrogation of job applicants con-
cerning union affiliation, interrogation of employees concerning the identity of union
protagonists, and of their union sympathies, and the creation of an impression of
surveillance of union activities, Respondent interfered with, restrained , and coerced
employees in the exercise of their right as guaranteed in Section 7, thereby violating
Section 8(a) (1) of the Act 2°
19 Hodge's telling Moller that he could promise him nothing in regard to the newly
opened position until after the election , while pertinent as bearing on his , supervisory
status, is too inconclusive to warrant the inference claimed by the General Counsel that
he was implying that the outcome hinged on either the result of the election or how
Moller aligned himself. The statement is held not to have been coercive and has been
given no weight in the decision relating to the merits.
20 Respondent claims it was denied due process by two rulings on questions of its
counsel to President Fuldner toward the end of the case. These were: (a) whether he
ever made any promises of favor based on support or opposition to the Union, and (b)
what instructions he gave his supervisors in regard to union activities.
As to (a), Respondent claims that although I allowed the question over the General
Counsel's objection , I nevertheless , on the General Counsel's objection , struck the whole
EFCO CORPORATION
III. THE REMEDY
1521
It will be recommended that Respondent cease and desist from the unfair labor
practices found under a broad provision, in view of the pervasive opposition to having
to deal with the Union which prompted its actions. This will include also discon-
tinuing the use of the job application blanks containing the question regarding union
affiliation and elimination of that question, the posting of appropriate notices assur-
ing the employees that they have been discontinued, that the information in them
concerning that subject will not be given any weight in respect to hiring or firing, or
layoffs or promotions, or other personnel action, and that Respondent will respect
the employees' rights as guaranteed in the National Labor Relations Act.
Upon the foregoing findings and the entire record, I hereby state the following:
CONCLUSIONS OF LAW
By threatening employees that their selection of the Union will cause the plant to
be closed down or moved, the force to be reduced , and the fringe benefits to be dis-
continued , by promising a wage raise if the Union is defeated , or if the employees
repudiate it as their representative , by questioning employees about the identity of
the union supporters and about their union sympathies , by maintaining and using
an application blank calling for disclosure of. union affiliation , and giving the reason-
able impression that employees ' union activities are under surveillance , Respondent
interfered with , restrained , and coerced its employees in the exercise of their rights
guaranteed in Section 7, thereby engaging and being engaged in unfair labor prac-
tices within the meaning of Section 7 of the Act, and affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
hereby ordered that the Respondent, Efco Corporation, its officers, agents, successors,
and assigns , shall:
answer. Neither the objection nor the ruling had that breadth. The General Counsel's
objection and my ruling referred to the tail end of an answer which consumed eight lines
of transcript. It was in the nature of an appendage to the answer itself, as follows:
. . . and certainly no employee has ever been discriminated against under any
circumstances.
The objection and the ruling read:
Mr. BLAKE: That is a conclusion.
TRIAL EXAMINER : We will strike that out.
In addition to being subject to the objection as stated, the appendage was not responsive
to the question. Company counsel who tried the case could hardly have understood
the ruling to have had the breadth now claimed for it, for If he had, it is reasonably
to be expected that he would ask to be heard in order to retain some portion of the
long answer, which was not subject to the stated objection. At any rate, except for
the stricken appendage previously quoted; the whole answer has at all times been regarded
as being in the record, and has been considered and weighed, along with the rest of the
evidence.
As to (b), Respondent claims that I "agree[d]" with the General Counsel's objection
that it was "immaterial." This implies that I did not permit Respondent to go into
the subject of what instructions Fuldner gave his supervisors. The record shows the
reverse: the question embraced "all" the supervisory personnel , and when I pointed
out Its breadth, company counsel asked what instructions he gave the supervisors who
are implicated, specifically naming Hodge, Trantham, and Burleson. Fuldner's answer
to that question too has been considered. He testified that he instructed them to refrain
from promises or threats and to "stay as far away from the situation as they could,
unless, they were asked questions regarding our present benefit, fringes , wage rates "
But, as stated in Hendrico Manufacturing Company, Inc v. N.L R.B., 321 F. 2d 100,
104 (CA.5):
When . . . an employer sets out to campaign against a union, one of the risks is
that out of zeal, Ignorance, or otherwise, foremen, supervisors and similar representa-
tives, in championing the anti-union cause, will overstep the mark.
Another "risk" is that the employer too may stray from his own line. In initiating the
talk with Dale Thomas, whatever might be said for its content, Fuldner could hardly
have thought he was following his own instruction to stay away until asked.
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Threatening employees that selection of the Union will cause it to close
down or move the plant, to reduce its work force, to discontinue its fringe benefits,
or to take other action detrimental to the employees.
(b) Questioning employees concerning their own or other employees' support of
the Union or their sentiments regarding the Union, for the purpose of or with the
reasonably foreseeable effect of restraining them in the free exercise of the rights to
self-organization or any other rights as guaranteed in Section 7 of the Act.
(c) Asking applicants orally or on written applications for disclosure of their
union affiliations.
(d) Promising a raise if the employees reject the Union in an election or if they
should repudiate or abandon it as their exclusive bargaining representative.
(e) Creating the impression, whether directly or by claims of knowledge of the
extent of employees' activity on behalf of or in support of the Union, that their union
activities are under surveillance.
(f) In any other manner interfering with , restraining , or coercing the employees
in their right to self-organization, to join or assist Carpenters District Council of
Kansas City and Vicinity, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization, to bargain collectively through it or any
other labor organization, or to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from doing so.
2. Take the following affirmative action, which it is found will effectuate the policies
of the Act:
(a) Discontinue the use of the job application blanks containing an inquiry con-
cerning union affiliation, and eliminate that question in its application blanks.
(b) Post at its plant in Monett, Missouri, copies of the attached notice marked
"Appendix." 21 Copies of the notice, to be furnished by the Regional Director of
Region 17, after being signed by Respondent's authorized representative, shall be
posted and maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director, in writing, within 20 days from receipt of this
Decision, what steps Respondent has taken to comply with the above provision.22
21 Should the Board adopt the Recommended Order, the words "the Decision and
Order" shall replace "the Decision and Recommended Order of a Trial Examiner" in
the notice. Should the Board's Order, in turn, be enforced, the words used shall be,
"a Decree of the United States Court of Appeals, Enforcing an Order "
22If the Board adopts the Recommended Order, the report shall be within 10 days
after the Board's Order ; if enforced by a court, then within 10 days after decree.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Recommended Order of a Trial Examiner of the
National Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify you that:
WE WILL NOT threaten employees with closing down or removing the plant,
or cutting down our working force, or with loss of fringe benefits, or other
economic detriment in the event of either the selection or retention of the union
named below as the employees' bargaining representative.
WE WILL NOT question employees concerning their or any other employees'
activity on behalf of the Union or their sentiments regarding it, for the purpose
of or with the reasonably foreseeable result of impeding or restraining any of
you in the free exercise of your right to self-organization or any other right guar-
anteed under the National Labor Relations Act.
WE WILL NOT require job applicants, orally or on written applications, 'to dis-
close their union affiliation and WE WILL discontinue the use of the application
form calling for disclosure of union affiliation, and WE WILL NOT give weight to
any information given in answer to such inquiry in respect to raises, hiring, firing,
promotion, layoff, or other personnel action.
WE WILL NOT promise raises conditioned on, or for the purpose of, causing
you to reject the Union or repudiate it as your bargaining representative.
PURITY FOOD STORES, INC. (SAV-MORE FOOD STORES) 1523
WE WILL NOT, by claiming to know the extent of employees' support of the
union and the identity of active supporters , or in any other way, give or try
to give employees the impression that their union activities are under surveillance.
WE WILL respect your right to join, assist , or support Carpenters District Coun-
cil of Kansas City and Vicinity, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, or any other labor organization, to bargain collectively
through it or any other labor organization , or to engage in concerted activity for
mutual aid or protection , or to refrain from doing so, all as guaranteed under
the National Labor Relations Act.
EFCO CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from date of posting, and
must not be altered , defaced , or covered by any other material.
Any employees who have a question concerning this notice or compliance with it
may inquire by mail, telephone , or in person at the Board 's Regional Office, 1200
Rialto Building , 906 Grand Avenue, Kansas City , Missouri , Telephone No. Baltimore
1-7000, Extension 731.
Purity Food Stores, Inc. (Sav-More Food Stores ) and Local 1435,
Retail Clerks International Association , AFL-CIO. Case No.
1-CA-4644. February 3, 1965
DECISION AND ORDER
On November 9, 1964, Trial Examiner C. W. Whittemore issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that Re-
spondent has not engaged in certain other unfair labor practices
and recommended dismissal of the complaint as to them. There-
after, the General Counsel and the Charging Party filed exceptions
and briefs in support thereof. Respondent also filed exceptions
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 con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
The Board has reviewed the ruling 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 case, and finds merit in the General Counsel's
and Charging Party's exceptions. Accordingly, the Board adopts
the Trial Examiner's findings, conclusions, and recommendations
only to the extent consistent with our Decision and Order.
150 NLRB No. 148.