Excelsior Laundry Co.

National Labor Relations Board - Board Decisions

Nov 30, 1970

186 N.L.R.B. 914 (N.L.R.B. 1970)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Excelsior Laundry Company and Communications
Workers of America, AFL-CIO. Cases
28-CA- 1519 and 28-RC- 1393
November 30, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On September 18, 1967, the National Labor
Relations Board issued a Decision and Order in this
proceeding,' in which it found that the Respondent
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, by refusing to bargain
with the Union, which had been certified by the
Board on March 15, 1967, as the collective-bargaining
representative of the Respondent's employees follow-
ing a second election among employees in the
stipulated unit. Subsequently, the Respondent filed
with the United States Court of Appeals for the Tenth
Circuit, a petition for the review of the Board's Order.
By its answer to the petition, the Board sought
enforcement of its Order. Thereafter, on March 14,
1969, the court denied enforcement and remanded the
matter without prejudice to further consideration if,
after a hearing on all pertinent objections to the first
election held herein, the Board determines that as a
matter of fact there was coercion affecting the fairness
of the first election.
On June 23, 1969, the Board issued an order
reopening the record and remanding the proceeding
to the Regional Director for hearing. On January 12,
1970, Trial Examiner E. Don Wilson issued his
Decision in the above-entitled proceeding finding that
the Union's objections 1, 2, and 5 to the first election
had merit, and that the Respondent had engaged in
coercive conduct affecting the fairness of the first
election. Thereafter the Respondent filed exceptions
to the Trial Examiner's Supplemental Decision and a
supporting brief; the Union filed an answering brief,
cross-exceptions to the Trial Examiner's Supplemen-
tal Decision, and a supporting brief; the Respondent
filed an answering brief to the Union's cross-excep-
tions; and the General Counsel filed a brief in support
of the Trial Examiner's Supplemental 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 these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
1 167 NLRB 455
2 We do not adopt the holding of the Trial Examiner that the
Respondent engaged in objectionable conduct by campaigning against the
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 Supplemental Decision, the exceptions,
the cross-exceptions, and briefs, and the entire record
in this proceeding, and hereby adopts the findings,
conclusions,2 and recommendations of the Trial
Examiner for the reasons set forth below.
In its objections the Union alleged, among other
things, that the Respondent coerced employees by
harassing them while soliciting their signatures on
cards repudiating the Union, by asserting the inevita-
bility of strikes and the lost job opportunities which
would follow if they selected the Union as their
collective-bargaining representative, and by interro-
gating employees with respect to their union sympa-
thy and interests.
The record shows that approximately 1 month
before the first election, the Respondent prepared and
distributed to employees cards which read as follows:
Petition for National Labor Relations Board
We, the undersigned employees, of our own free
will and accord and without any coercion or
undue influence whatsoever from any party, wish
to inform the National Labor Relations Board that
we are opposed to the unionization of the
employees of the Excelsior Laundry by the
Communications Workers or any other union.
Date Signed
The Respondent's supervisors were told to distribute
the cards and, in obtaining signatures , thereby
determine the strength of the Union.
One morning, about 2 weeks before the election,
Blaza Bachicha (then Hinojos) was approached by
her supervisor, Howard Wilson, and asked to sign a
card. She normally performed thejob of checker, but,
earlier on the day in question , Wilson had her moved
to what she considered a less desirable job. Bachicha
refused to sign the card, as requested, but did ask to be
put back at her oldjob. Wilson told her that she could
go home. When she asked if she were fired, he told her
that she could have her job back. About noon, Wilson
told her, "I will give you another chance if you want to
sign the card." Bachicha then checked with several of
her friends who told her that she might as well sign the
card, as nearly everyone else had done so. She signed,
and Wilson put her back at her old job as checker.
At a union meeting held shortly after this incident,
Bachicha told several employees what had taken
place. On the following day, Wilson asked her why
Union during worktime merely because it denied employees the same
opportunity
186 NLRB No. 129
EXCELSIOR LAUNDRY COMPANY
they had said at the union meeting that he was going
to fire her.
Like the Trial Examiner , we hold such conduct to be
objectionable .3 It is clear that the Respondent
conditioned Bachicha's return to her customary job
upon her signing the card in question . It is also clear
that this incident was communicated to employees.
We need not elaborate upon the extent to which such
conduct introduces fear and uncertainty into the
election process , thereby denying employees the
opportunity to express a free and untrammeled
choice.
The record also shows that the Respondent engaged
in a vigorous campaign to dissuade employees from
selecting the Union prior to the first election. This
campaign took the form of written communications
which were addressed to "fellow workers" or were
signed by the "employees committee ." The thrust of
these communications is exemplified by a letter
distributed to each employee with his paycheck on
November 19, 1965, approximately 2 weeks before the
election , in which the following statements were
made:
1. WHERE THERE ARE UNIONS THERE
ARE STRIKES, AND THIS MEANS THAT
YOUR PAY CHECKS STOP AND MUCH
HARDSHIP IS ENDURED BY YOU AND
YOUR FAMILY.
2. IT CAN HAPPEN THAT THE UNION
WILL MAKE YOU GO ON STRIKE AND THE
COMPANY WILL HIRE PERMANENT RE-
PLACEMENTS. THIS MEANS YOU HAVE
NO LEGAL RIGHT TO BE REHIRED.
3. SHOULD THE UNION BE ELECTED IT
WOULD COST YOU MONEY, NOT ONLY IN
DUES AND ASSESSMENTS, BUT ALSO IN
THE FORM OF FINES IF YOU CHOSE NOT
TO FOLLOW ONE OF THEIR MANY OR-
DERS.
4. WHATEVER PROMISES THE UNION
MIGHT MAKE MAY NOT NECESSARILY BE
FULFILLED, BECAUSE THE LAW DOES
NOT REQUIRE THAT THE EMPLOYER
COMPLY WITH ALL DEMANDS OF THE
UNION.
Like the Trial Examiner , we find that the message
' The court of appeals, in remanding the instant proceeding, held that
the mere distribution of the cards in question did not , per se, constitute
objectionable conduct. That rule remains the law of this case Accordingly,
the court held that the Board abused its discretion by refusing to consider
some 70 affidavits, purportedly rejected by the Regional Director, which
the Respondent claims it offered to show that card signatures were not
obtained by coercive means , as alleged in two affidavits furnished by the
Union On the record before us, we find no evidence that the Respondent
offered the 70 affidavits in question to the Regional Director , as claimed
Moreover, the Respondent apparently made no effort , at the hearing held
pursuant to the court remand, to introduce into evidence any of these
affidavits nor to adduce testimony from any of the alleged affiants on
matters supposedly covered therein
915
communicated to employees sought to persuade them
as to the inevitability of strikes, economic disruptions,
and unnecessary expenses to employees, should the
Union win the election.
This message was reinforced in conversations
between supervisory personnel and unit employees;
On the very morning of the election here in question,
Tony Jackson, a son of the Respondent's president
and an admitted supervisor, called together 25 to 30
employees and told them that if the Union got in there
would be a strike and the employees would be
replaced. The Trial Examiner found, and we agree,
that the communications thus directed to employees
inhibited their free and untrammeled choice in the
first election held herem.4
The Trial Examiner also found that the Respondent
engaged in objectionable conduct by placing employ-
ees' union activities under surveillance, by attempting
to recruit employees for the purpose of engaging in
surveillance activities, and by communicating to
employees the fact that their organizing efforts were
under surveillance. We agree. The record shows that
prior to the election here in question, Henry Benton,
who the Union claims is a supervisor, maintained
surveillance over a union meeting.5 Benton reported
what he saw to Tony Jackson who thereafter inquired
of Jack Lucas, an admitted supervisor, if there were
others who could be recruited to engage in surveil-
lance activities. Lucas, in turn, asked Maggie Davis,
an employee, if she would like to attend a union
meeting and report what she was able to observe.
Davis agreed, attended such a meeting, and reported
what she saw to Lucas and Tony Jackson.
It is equally clear that the Respondent's surveillance
activities were made known to employees. As previ-
ously mentioned, Blaza Bachicha's supervisor, Wil-
son, demanded to know why they had said at a union
meeting that he had threatened to fire her. The
atmosphere of suspicion created by the Respondent's
open surveillance further denied employees the
opportunity to express a free and untrammeled choice
in the first election. In sum, we find that the
Respondent, by coercing employees to put their
signatures on cards purporting to repudiate their
interest in all unions, by threatening employees with
loss of jobs, by engaging in surveillance, by soliciting
4 Chairman Miller would not find that the Respondent engaged in
objectionable conduct merely by stating that employees might fall victim to
economic warfare and lose jobs if the Union won the election
Assuming arguendo that the Respondent 's remarks were not in
themselves objectionable , we hold, nevertheless , that they constitute
additional grounds for setting aside the election here in question to the
extent that they were made to the assembled employees on the morning of
the election in violation of the rule established in Peerless Plywood Co, 107
NLRB 427
5 We find it unnecessary to decide whether or not Henry Benton is a
supervisor , as our finding that he engaged in surveillance, on the
Respondent 's behalf, is in no way affected by his status as a supervisor
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to engage in surveillance, and by interro-
gating employees with respect to their union
sympathies,6 has interfered with employees in the
exercise of their right freely to choose or not to choose
a collective-bargaining representative.
Accordingly, we hold that the first election held
herein was properly set aside and a new election
directed. As the Union was properly certified upon
conclusion of the second election, we shall reaffirm
our original Decision and Order, finding that the
Respondent violated Section 8(a)(5) of the Act, and
requiring that it bargain, upon request, with the
Union.
SUPPLEMENTAL ORDER
In view of the foregoing, and on the basis of the
entire record herein, the National Labor Relations
Board hereby reaffirms its Decision and Order of
September 18, 1967, entered in this proceeding.
6 It is uncontroverted on the record that employee Yocum was asked,
both by Tony Jackson and Supervisor Lucas, what he thought about the
Union We hold that these separate acts of interrogation, in the context of
Respondent's other coercive activities, constitute objectionable conduct
and additional grounds warranting the setting aside of the first election
held herein
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Subsequently, I shall
make findings as to how this matter came to be heard
before me on September 30 through October 2, 1969. The
simple fact is that I was hearing a remand from the 10th
Circuit Court of Appeals which had been accepted by the
Board. I was ordered to conduct an evidentiary hearing on
the pertinent objections to the so-called first election. All
pertinent objections to that election were to be heard.' I
was to determine whether the Board, after hearing,
determined "that as a matter of fact there was coercion
affecting the fairness of the election." I find on the basis of
all the credible and probative and substantial evidence that
Respondent engaged in, before the first election "coercion
affecting the fairness of the election." The Board's
subsequent certification was well and good and Respon-
dent's refusal to bargain was violative of Section 8(a)(5) and
(1) of the Act as previously found by the Board.
Of course, I find, as did the Board that the Respondent-
Employer was engaged in commerce within the meaning of
the Act, and that the Communications Workers of
America, herein Union or Petitioner, is a labor organization
within the meaning of the Act.
THE ISSUES
They are simple. Did Respondent unlawfully coerce its
employees in their free choice of the Union in the first
election , and are the Union's "pertinent objections"
supported by a preponderance of the probative and
substantial evidence and "was there coercion affecting the
fairness of the election?" I find the answer to these
questions to be "Yes."
1. FINDINGS WITH RESPECT TO THE CLARIFIED BOARD
ORDER REMANDING THIS CASE FOR HEARING
PURSUANT TO THE DECISION OF THE UNITED STATES
COURT OF APPEALS , TENTH CIRCUIT, DENYING
ENFORCEMENT OF THE BOARD'S DECISION AND
ORDER , REPORTED AT 167 NLRB NO. 64
The court denied enforcement of the Board 's Decision
and Order in Case 28 -CA-1519, in which the Board found
Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union , which had been
certified by the Board on March 15, 1967, in Case
28-RC-1393.
It was on October 14, 1968 , that the Court denied
enforcement and remanded the matter "without prejudice
to further consideration" if, after a hearing on all "pertinent
objections" to the first election herein , the Board deter-
mined "that as a matter of fact there was coercion affecting
the fairness of the [first ] election ." The Board accepted the
Court's remand and ordered that 28-RC- 1393 be consoli-
dated with 28-CA- 1519, and the hearing be reopened and
that a full hearing be held , "consistent with the remand of
the Court," before a Trial Examiner . The Court had
ordered that " the hearing should encompass all pertinent
objections ." The Court said it would give further considera-
tion to the Board 's Petition if, after the hearing, "the Board
determines that as a matter of fact there was coercion
affecting the fairness of the election. " [ Emphasis supplied.]
The Board , after accepting the Court's remand, found
that the Union 's Objections , 1, 2, and 5 , were "pertinent."
In Case 28-RC-1393, the Regional Director summed up
Objections 1, 2, and 5 , as follows'
1. Agents, officers , and representatives of the Employ-
er harrassed employees by soliciting them to sign a form
repudiating the Union.
2. The Employer predicted a strike by the Union and
stated what management would do in the event of a
strike.
5. Prior to the conduct of the election employees were
consistently interrogated concerning their "union
intentions."
The original election in this case was held on December
2, 1965,2 after a stipulated consent election agreement was
entered into between the Union and Respondent on
November 15. The Union lost and filed timely objections
which are the subject of this Decision. On December 23, the
Regional Director found merit to Objections I and 2 as
above, with further appropriate recommendations; Res-
pondent , on January 11, 1966, filed exceptions and on
March 4, 1966, the Board issued its Order and Direction of
Second Election, sustaining Objection I and not passing on
Objection 2. After another election , won by the Union, and
after timely objections by Respondent, and after Respon-
dent 's objections were found without merit by the Regional
i Objections 1, 2, and 5, as in the Board's Order granting motion for 2 Hereinafter, unless otherwise stated, all dates refer to 1965
reclarification
EXCELSIOR LAUNDRY COMPANY 917
Director, and after a hearing on challenged ballots by a
hearing officer, the Board issued a Second Supplemental
Decision and Certification of Representative on March 15,
1967. Thereafter, and at all material times, since March 24,
1967, Respondent has admittedly refused to bargain with
the Union. I am deciding the issues presented by the
Board's remand, the Board having accepted the remand of
the Court, as noted herein above.
Petition for National Labor Relations Board
We, the undersigned employees , of our own free will
and accord and without any coercion or undue
influence whatsoever from any party, wish to inform the
National Labor Relations Board that we are opposed to
the unionization of the employees of the Excelsior
Laundry by the Communications Workers or any other
union.
A. Matters Not Specifically Mentioned in the
Union 's Objections to the First Election
As previously noted the Court indicated that a "hearing"
be held, as has been done by me, to determine whether as a
matter of fact, "there was coercion affecting the fairness of
the [first] election;" It is noted, as set forth by General
Counsel in his brief, that the Regional Director in good
faith relied upon information furnished by Respondent
"which the latter admittedly later repudiated." I have no
doubt, in light of the Court's Remand that I properly
received evidence as to the distribution of the Union's
Exhibit 2, particularly in view of oral statements made by
Respondent's representatives to employees with respect to
matters contained in Petitioner's Exhibit 2. I find I properly
received and should resolve all evidence of "coercion
affecting the fairness of the election" as directed by the
Court and as the Board has decided to accept the Court
remand.3
I find I may properly consider all evidence of objectiona-
ble (coercive) conduct occurring from November 15 to
December 2. 1 shall make findings and conclusions as to
alleged surveillance by Respondent of its employees' union
activities and solicitation of employees to engage in such
conduct as well as any threats to close the business if
Respondent were unionized According to the Court's
remand, I am to determine "that as a matter of fact their
[sic] was coercion affecting the fairness of the election."
The cards were admittedly distributed by Respondent, as
found by the Board and the Court. The Court pointed out
that Respondent never had an "opportunity to be heard on
this issue."4 I specifically afforded such an opportunity and
Respondent availed itself not at all.5
B. The Antiunion Cards
As the court found, Respondent admitted that about a
month before the election its supervisors distributed
throughout the Respondent's premises approximately 60
Company-prepared cards and solicited employees' signa-
tures. As the Court found, the text of the card was:
3 G C Exh Remand 1(a)
a The issue of coercion and the circumstances and effect of the card
distribution
5 Respondent's attorney admitted at this hearing that all of the so-called
70 affidavits had not been signed when he discussed this matter with the
representative of the Regional Director Although afforded the
opportunity, he never offered before me one or any of these so-called
affidavits , and never offered one of the so-called affiants as a witness
Marron stated he had "no further statements " If he never had a hearing
before, on these so-called 70 affidavits, he certainly was afforded one
before me Please note that General Counsel specifically denied they were
Date Signed
The court found, and the Board accepted its remand, that
the Board found the card distribution "was a per se
violation which invalidated the election." The Court held
that there must be "some showing of other coercion or
union animosity."6 This hearing is but an extension of the
Regional Director's postelection investigation. I was
directed by the Court, and am to determine whether there
"was coercion affecting the fairness of the election."7
C. The So-Called 70 Affidavits Referred to by the
Court
The Court herein stated that, "In the administrative
proceedings, 70 counter-affidavits offered by the Company
were rejected." Respondent at no time in this remanded
hearing, offered to the Trial Examiner any of the so-called
70 affidavits, although I offered Respondent the opportuni-
ty to do so, pointing out that I would probably consider
them as hearsay, and hearing no argument or offer to the
contrary from Respondent. I stated they could be placed in
the rejected exhibit file. They were never offered for any
purpose. None of the alleged affiants was offered to prove
no "coercion," in the "fairness of the election." I should and
do consider whether Respondent interfered with the
laboratory conditions of the first election by coercive
conduct. I, no more than the Regional Director, am not
limited to the issues raised by the parties, in making a
posthearing investigation, particularly in light of the clear
language of the Court of Appeals which directed that there
be a hearing to determine whether there "was coercion
affecting the fairness of the election."
I shall subsequently find that there was coercive
solicitation of employees to sign these forms, as well as
other coercive conduct affecting the fairness of the first
election. I shall hereinafter pinpoint that Respondent's
distribution of the forms was accompanied by coercion.
Certainly, the Regional Director's determination was not
arbitrary or capricious.
ever rejected by the Regional Director The record is clear that despite the
specific words of the Court 's remand , Respondent offered not one affidavit
nor one witness of the 70 it professed to have It was not precluded from so
doing
6 Note that the Honorable Court found 70 of Respondent 's counter-
affidavits were rejected by the Board . I have previously found that
Respondent offered not one counter-affidavit or witness before me
although the Court indicated it should have had an opportunity to be
heard on this issue
7 See J P Stephens & Company, 167 NLRB No 37 (SeeJudge Leedom's
Decision )
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Distribution of the Cards
According to S. Y. Jackson, at present Respondent's
president, he was Respondent's general manager in 1965.
According to him, the cards were prepared by one of
Respondent's attorneys and 200 were printed. It is clear
that they were ready for distribution as early as October 28.
Respondent's supervisors were told to distribute the cards,
the idea being, according to Jackson, that they would
"indicate the desire or the opposite, on behalf of the
employees in the unit." Clearly, the cards were distributed
to determine the strength of the Union.8 The language of
the cards makes clear that Respondent sought to have the
employees reject not only the Union but all labor
organizations. Jackson indicated in his testimony that each
employee received a card when he was ready to leave at the
end of the day .9
Blaza Bachicha, whose name was Hinojos when she was
employed by Respondent in 1965, was a completely honest
and credible witness when she testified before me, although
four years had passed since the events concerning which
she testified. She had been employed as a checker or
assembler in the dry cleaning department; At the time of
the 1965 election, her supervisors were Howard Wilson and
Tony Jackson and his father, S. Y. Jackson. She was not
employed by Respondent when she testified. She impressed
me as a sincere and forthright witness who endeavored at
all times to tell the whole truth as she knew it. Her
demeanor impressed me most favorably.
Wilson received the cards referred to supra, for distnbu-
tion. In November, about two weeks before the election,
during working hours, Supervisor Wilson gave her a card;
It has been noted that almost four years elapsed between
the time of this distribution and the time of her testimony. I
find it only natural that her testimony needed refreshing.
The refreshment did not put words into her mouth but
simply aided her in her truthful recollection and testimony.
In the morning, she was performing her usual work as an
assembler. Wilson asked her to sign the card. She refused.
Wilson then assigned her to a different job.10 Before lunch,
Wilson again asked her to sign the card. She asked him why
he had changed her job. She had difficulty in remembering
events so far back but her recollection was truthfully
refreshed by General Counsel's Exhibit 4. She had tried her
best honestly to recall all the events. She truthfully testified
that her recollection was more clear and accurate at the
time she signed General Counsel's Exhibit 4 in November
1965, than when she testified on October 1, 1969. She
testified that when Wilson asked her the second time to sign
the card, she asked him why she was transferred from her
usual work. He told her she could go home. She asked him
if she were fired. He said no, so she stayed there. She
admitted to me that he did not say at that time that he had
changed her job because she had refused to sign the card;
She testified she did not have a recollection of her
conversation with Wilson, but she knew that the contents of
General Counsel's Exhibit 4 were true when she signed it.
8 The Board conducts elections for this purpose
9 This sounds like the distribution of more than 60 cards
10 Which she did not like
11 As past recollection recorded
12 No explanation was given for his failure to testify
She did remember, apart from the affidavit, that when she
refused Wilson's request to sign the card, he changed her
job assignment. She later agreed to sign the card, on that
day, and Wilson put her back on her former, apparently
more desirable, job. Without objection, General Counsel's
Exhibit 4 was received in evidence as past recollection
recorded. I find, based on her credited testimony, that it is
true. ii I find that Wilson subsequently asked her, before the
election why they said at a union meeting that they wanted
to know why Wilson had said he was going to fire her. I
specifically find that Wilson told her, "I will give you
another chance if you want to sign the card." He thanked
her when she finally did sign the card. Wilson was not
called to testify.12 I credit Bachicha's testimony, as
amplified by her affidavit, in its entirety, and find
Respondent coercively attempted to procure her signature
to a card repudiating unions and particularly the Union;
There was a clearly demonstrated violation of Section
8(a)(1) of the Act. Clearly her job assignment, or even her
job, depended upon her willingness to sign the card.
Clearly, this woman "felt in some way restrained in the
exercise of [her] rights;"13 There is no probative evidence
by Respondent that it ever advised the employees of the
noncoercive nature, if any, of the distribution of the cards,
or that they were being distributed for legitimate and
noncoercive reasons. Clearly they were being interrogated
as to their union feelings or attitudes and they were
afforded, so far as the record is concerned, no safeguards
that revelation, truthful, by them, might not be used to their
detriment. Note that Bachicha discussed Wilson's coercive
statements with "some of the boys who work in the
laundry." 14 Obviously, she discussed Wilson's threat to fire
her "at a union meeting." Her testimony establishes that at
least in her case, the card was "circulated in a manner
suggesting that the employee had better sign it if [she] knew
what was good for [her]." 15 Wilson made it clear to her that
she had the choices of signing the antiunion card, or having
her job changed, or being fired. Respondent clearly
attempted to coerce her and she naturally made this known
to other employees. S.Y. Jackson clearly testified that the
cards were distributed by Respondent to determine the
employees ' desires for a union. This is why elections are
held. is
E. Petitioner 's Exhibit 2
It was stipulated that between October 23 and December
2, Respondent distributed among its employees, the
following communications:
Stop - Listen - Think Thursday morning, December
2nd, you will have a chance to vote for or against a
union in your laundry and dry cleaning plant.
Don't let other people tell you how to vote. Think for
yourself - Do what is best for you and your family.
If you vote for the union , you must pay union dues
every month. [Emphasis contained.] You may also have
other costs, such as initiation costs - picket line duty
13 S H Kress & Co v NLRB , 9 Cir, 371 F 2d 225-228-229
14 Wilson's coercion was clearly not "isolated "
1' N L R B v California Compress Company, 9 Cir, 274 F.2d 104
16 It is not up to employers to make such determinations
EXCELSIOR LAUNDRY COMPANY 919
- fines The union may even call a strike which could
cost you your job, if replaced. This would place a
hardship on you and your family.
If you vote for the union , you must [emphasis
contained] attend their meetings and be subject to call
by the union. In the plant, a steward will tell you what
you can do and what you cannot do [Emphasis supplied.]
Without a union you will pay no dues (Emphasis
contained.)
You will have no fines to pay. There will be no
strikes, and you will have steady employment. . .
Your time is your own-no meetings to attend - no
picket lines - no strikes - if you vote no [emphasis
contained] to a union in your plant.
(Signed) Employees' Committee 17
In the same period, Respondent distributed to its
employees another communication, addressed "Dear
Fellow Workers," thereby implying that it was being
distributed by "fellow workers" rather than Respondent
Among other things, Respondent advised its employees
during this time:
One thing we want you to know is that you WILL
NOT [emphasis contained] be required to join any
union without your own consent and co-operation in
order that you may hold yourjob in our plant
if a majority of the employees do vote for a union,
you WILL [emphasis contained] be required to pay
dues and possibly other costs.
A few days prior to the first election, Respondent
distributed to its employees a letter stating in material part.
You are not required to vote for the union. Stop and
consider what is really best for you and your family.
Remember, you do not have to belong to any union to
work at [Respondent.] This could well be the most
important decision you have ever made. . .
F. Petitioner's Exhibit 3
The Regional Director in his Report on Objections, etc.,
General Counsel's Exhibit 2-B, discussed two letters which
the Respondent admitted, at that time, were sent to its
employees on November 30 and November 19. The
Regional Director referred to them as Attachments, "A"
and "B" Respondent before the Court and the Board and
before me maintained these were not distributed by it.
it i find no probative and substantial evidence that there was ever such
an Employees' Committee It was Respondent which distributed this
communication It is obvious that this was deliberate misinformation
distributed by Respondent
18 It was not written by fellow workers
19 Again, no probative evidence that fellow workers prepared the letter
20 This is a patently untrue and coercive statement Strikes are not
inevitable with the advent of a union This is what Congress intended to
avoid with its requirement for "good faith" bargaining To tell employees
they can accomplish nothing through mutual good-faith bargaining is to
predetermine that they have no Section (7) rights.
21 Respondent thus ignored and coerced the employees' rights as
possible unfair labor practice strikers it untruthfully told the employees
that the Union could make them go on strike in spite of their Section 7
rights and thereby coerced them Obviously, in light of recent Court
Decisions, it is deceptively coercive to tell employees that they have no
The November 19 letter was addressed to "Dear Fellow
Workers and Your Families." 18
This letter stated, in material part, that "You should
know that the election of the union to be your bargaining
representative could prove costly to you and might lead to the
loss of yourjob with the company." [Emphasis supplied.] The
letter added, "We believe there will be a strike against the
company" if the Union wins the election Respondent
added this would cause a hardship on the employees and
their families. [Emphasis supplied.] The letter added, with
no documentation, that the Union would demand a union
shop. The letter added that Respondent was strongly
opposed to such demand, and strongly suggested there
would be a strike for such demand. The letter specifically
added that the Union would have little to lose if it lost a
strike, but after not subtly predicting one, Respondent
stated, "A strike can have a serious affect on the employees.
In addition to the loss of its paycheck, an employee could lose
his job as well " [Emphasis supplied.] The letter continued
with an explanation of Respondent's right to replace an
economic striker but said nothing about the rights of an
unfair labor practice striker.
Also, prior to the election, Marron, one of Respondent's
attorneys, and a part owner, prepared for distribution by
Respondent a letter to "Dear Fellow Workers" 19 stating
that Respondent proposed to use every proper means to
prevent the Union from being established. The letter added,
"where there are Unions there are strikes, and this means that
your paychecks stop and much hardship is endured by you and
your family. "20 [Emphasis supplied.]
In this letter Respondent stated categorically that the
Union "will make you go on strike, and the company will hire
permanent replacements. This means you have no legal right to
be rehired. "21 [Emphasis supplied.]
The letter continued, "Should this Union be elected it
would cost you money, not only in dues and assessments, but
also in the form of fines, if you choose not to follow one of their
many orders. "22
The letter continued, "If anyone causes you trouble at
work or at home,23 please inform us and we shall see that
such activity is stopped." 24
Although Respondent obviously carried on antiunion
activities on the job, it advised the employees that any
employee who carried on prounion activities on the job
would be discharged. This was obviously discriminatory
and in violation of Section 8(a)(1) of the Act
With respect to Petitioner's Exhibit 3, Respondent
consistently insisted the so-called Exhibits "A" and "B,"
legal right to be rehired even if they are replaced especially if the
replacements leave'f
22 Obviously, in the non-event of a union shop . which Respondent
would not have to agree to and said it would not, an employee would not
be obliged without free choice, to pay either dues , or assessments or fines
This was an untruthful statement coercively designed to influence
employees in the exercise of their Section 7 rights under the Act In the
absence of a lawful union security agreement, they would not even have to
join the Union or pay lawful dues Even with such, as the letter indicated
to the contrary, they would not have to pay assessments or fines as a means
of job security Also, all union fines are not legally enforceable and can be
unfair labor practices
23 Solicitation for the Union is not too subtly suggested
24 Obviously, Respondent was advising its employees that it would
unlawfully see to it that union activities , on or off the job, were to be
brought to a surcease
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been distributed to the employees. It admits
distribution of Petitioner's Exhibit 2. I find that at the least,
Respondent forecast the inevitability of a strike and that its
expressed reaction thereto to its employees was coercive. I
note particularly that I credit the testimony of ex-
Supervisor Jack Lucas that the communications contained
in Petitioner's Exhibit 3 were in fact distributed to the
employees. Respondent, in writing, and verbally, insisted
upon the futility of voting for the Union and coercively
discouraged support for the Union before the first election.
Respondent clearly stated to the employees that a vote for
the Union would mean a strike and loss of jobs even if the
strike were an unfair labor practice strike.25 Note that in
one letter Respondent told the employees that if they
"voted" for the Union they "must pay union dues every
month." 26 In the same period, Respondent engaged in an
anticipatory refusal to bargain about a mandatory subject
of collective-bargaining, union security, by writing all the
employees, "One thing we want you to know is that you
WILL NOT [emphasis supplied] be required to join any
union without your own consent and co-operation in order
that you may hold your job in our plant." On the one hand,
Respondent untruthfully told the employees that a vote for
the Union meant they must pay dues to the Union and on
the other hand, it assured the employees they would not be
required to join the Union without their own consent.27
Respondent untruthfully and coercively told all the
employees that merely because the Union was voted in as
majority representative, each employee would have to pay
the union dues and possibly other costs.28 Obviously, such
is a coercive prevarication, since union security is a subject
of collective bargaining even though a union may win an
election.29 The Respondent might not agree to union
security.30
In spite of Respondent's denials, I credit completely the
testimony of Jack L. Lucas, who was not employed by
Respondent when he testified. He had been employed by
Respondent for about 8 years, and terminated in 1967. He
was a supervisor of the Finish Department in October -
December 1965. He knew of the Union's activity a week or
two before the Petition was filed on October 21 Tony
Jackson told him to keep his eyes open to see what union
activity there was in the plant and report directly to him. He
was told to tell inquiring employees that if they went on
strike,31 they could be replaced. He asked employee Jack
Yocum what he thought of the Union. He told a couple of
employees before the election that there probably would be
a strike by the Union.32
He posted a copy of the "Stop, Listen, and Think" letter
on Respondent's bulletin board, after receiving it from
Tony Jackson. The letter was so posted that all Respon-
dent's employees could read it. He told employees who
asked him questions (apparently a number did) that "if they
voted for the Union they would have to pay union dues." 33
He told them if the Union called a strike, without regard to
a possibly unfair labor practice strike, that they could be
permanently replaced.34 He told them, coercively, that if
they voted for the Union they must attend union meetings
"and be subject to call by the Union." 35
The questions began to be addressed to Lucas after the
"Stop, Think, and Listen" letter was posted.
In late October, Lucas was told by Henry Benton that he
was going to "observe" a union meeting. Benton said he
was going to park about a block away "and see some of the
faces that was going in." He said he was going to see who
attended and report back to Tony Jackson.36 He heard
Benton report back to Tony Jackson. Benton was never, so
far as the credible evidence is concerned, forbidden to
engage in such activity. Jackson did tell Benton , after his
report that such action may have been a "little risky."37
Such activity was clearly coercive surveillance.38
Before the election, Lucas asked Maggie Davis, a
presser,39 if she would like to attend a union meeting and
"report back what she saw and who she saw." Davis agreed.
She reported back to Lucas, and Tony Jackson said she had
reported back to him Jackson had inquired if there was
some one of the employees they could trust to attend the
union meetmgs.40
Lucas was told by Jackson to keep an eye on one Rick
Roberts to see whether he engaged in union activities
during working hours and report back to Jackson. This was
coercive
Lucas 41 heard Tony Jackson tell about 10 employees,
before the election, that there would probably be a strike
and anybody that went out on strike could be replaced and
lose his job. Again, particularly considering the rights of
unfair labor practice strikers, I find this coercive.
Despite Respondent's contentions after the exceptions to
the first election were filed, and contrary to its earlier
admissions, I specifically credit Lucas' testimony that the
"Dear Fellow Workers and Your Families" letter in
Petitioner's Exhibit 3 was either handed out to the
employees or given with their checks. Lucas was "sure of
that."
The "Dear Fellow Workers" letter forming part of
Petitioner's Exhibit 3 was distributed by hand to all the
employees by their supervisors, in the plant, according to
Lucas. I find this is true.
25 Although it did not mention the latter
26 Obviously false and coercively indicating they would be forced to
join a union
27 Either was coercive
28 Including assessments and fines, etc
29 Respondent was coercively telling employees they would have to join
the Union in the absence of a lawful union security agreement
30 It told the employees it would not.
31 No reference to unfair labor practice strikes
32 Statistics establish that strikes are not probable. good-faith bargaining
is required
33 This was apparently without regard to the fact that the Union might
lose, or that if it won there might never be a union security agreement This
was not only false but coercive
37 False and coercive in that it was at best a half truth as to their
Section 7 rights
15 There is no evidence of union bylaws Of course, merely voting for a
union does not carry such consequences Even a valid union security
agreement does not permit such requirements As pointed out, perhaps ad
nauseant , there might never be a union security agreement These
employees were being coercively misled and threatened as to their Section
7 rights
16 There is no evidence that Lucas told him not to engage in such
unlawful surveillance
17 He was not told he should not have done so
iS Lucas didn't forbid it and Jackson did not reject it or warn that it
should not be repeated
19 A rank and file employee
40 This activity was clearly coercive
4i As I have noted , I find all his testimony credible
EXCELSIOR LAUNDRY COMPANY 921
I find specifically that Lucas bore no animosity toward
Respondent or anyone connected with it. He impressed me
as honest and unbiased
Lucas truthfully testified that he did not permit
employees to engage in union activities or social activities
or just gabbing on company time.42
It is clear from the entire record that Respondent, by
letter and verbally , told the employees that if they voted for
the Union a strike was inevitable , 43 and the employees
voting for the Union would be forced to strike , and would
lose their Jobs because they would be replaced.44
It was clearly coercive for Respondent to write to its
employees , "You WILL NOT be required to Join any union
without your own consent and cooperation in order that
you may hold your job in our plant" This was a clear
statement to the employees that Respondent had a closed
mind and would refuse to bargain with the Union, if
certified , about union security, a mandatory subject of
collective bargaining . This was coercive , and a violation of
Section 8(a)(1).
So, also, was it a violation of Section 8(a)(1) of the Act,
for Respondent to write to its employees and tell them that
if they voted for the Union without reference to whether it
was certified or won, "You must pay union dues every
month ." Such is not true, and was a coercive statement that
every person who voted for the Union would have it
crammed down his throat . Respondent even had the
temerity to tell its employees that if anyone voted for the
Union, he "must" attend union meetings So, too, did
Respondent wantonly mislead and coerce its employees by
telling them that if any voted for the Union, "a steward will
tell you what you can do and what you cannot do." Even if
the Union were certified, Respondent could bargain about
its prerogatives . A vote for a Union does not mean that you
have selected a "steward" as your "supervisor." This
statement was not only substantially false but also was
coercive within the meaning of Section 8(a)(1) of the Act, in
that Respondent in substance told the employees a union
representative would supplant Respondent who gives the
pay, etc.
In the "Stop, Listen, and Think " letter Respondent
plainly implied , if it did not say it , that an employee would
have to pay "fines " if there were a union . Not only is this
not true, in that many and many a union member has never
been fined but, also, fines or their collection , cannot be a
condition of employment .45 Respondent assured that there
would be "steady employment," with no union but thereby
implied there would not be steady employment if there were
a union . This was an unlawful promise of benefit as well as
coercion
Respondent 's statement to its employees that there would
be no strikes-no picket lines, if they voted "no" to a union
in the plant , ignores and negates entirely their Section 7
rights to engage in such activities for their own mutual aid
and protection even without a union.
Plainly, in writing and verbally, Respondent made it clear
to its employees that the alternative to choosing a union
was "steady employment," The other side of the coin is
obvious and coercive.46 Respondent, in violation of Section
8(a)(1) of the Act, created an atmosphere of fear and futility
in selecting the Union as bargaining agent and thereby
prevented the employees in their free choice under Section
7 of the Act. Respondent coercively made it clear to its
employees that they were not free in exercising their
protected free choice in an election or their other protected
rights. Respondent made it clear that it was futile for them
to select the Union as their bargaining representative and
that the Union's selection could only bring strikes and loss
of jobs. This was coercive.
As noted, Respondent originally admitted that the letters
contained in Petitioner's or Union's Exhibit 3 were sent to
all Respondent's employees. This was subsequently denied
by Respondent. At the instant hearing, S. Y. Jackson
testified that the first letter in this Exhibit was prepared by
Rufas Poole, its attorney, and the second was prepared by
Marron, one of its owners and one of its attorneys. Marron
led S. Y Jackson into stating that after these letters had
been prepared, Marron and Poole decided the letters would
be reproduced and mailed to Respondent's employees. I
was unfavorably impressed by the demeanor of S. Y.
Jackson and do not credit any of his testimony unless
corroborated by otherwise credited testimony. I specifically
do not credit his testimony that Jackson, without consulta-
tion with Poole, a highly experienced and expert attorney,
or Marron, an owner and one of his able legal advisers,
decided not to distribute these letters,47 which had been
prepared by them.
S. Y. Jackson admitted under examination by Marron,
that Marron, Poole, and he discussed Petitioner's Exhibit 3,
and decided they should be distributed He testified he
ignored his Counsel's judgement. He admitted there was no
Employees' Committee against union organization "per
se." He testified he believed that a vote in favor of the
Union would require each individual employee to pay
union dues.48
It was merely his supposition, incorrect, that a union
member will attend union meetings. In Petitioner's Exhibit
2, he told the employees coercively, under the false
appellation of "Employees' Committee," that each employ-
ee who voted for the Union, "must attend [Union] meetings
and be subject to call by the Union." This was false and
clearly coercive Jackson coerced the employees by telling
them, that apparently with no exception, including good-
faith bargaining about union security they would be
required to join a union, and in the next paragraph, without
advising them of the Employer's rights under Section
42 The record is clear that Respondent engaged in antiunion activities
on company time Lucas, for example, distributed the antiunion cards on
company time
43 Demonstrably false
44 Obviously not true, and an unlawful threat, if the employees engaged
in an unfair labor practice strike, and there was no assurance that any
strike of any kind would ever be called Good-faith bargaining resulting in
a contract or no contract is not unusual These employees without any
subtlety were threatened with probable loss of their jobs if they voted for
the Union This was coercion
45 There are also unlawful fines
46 See Indiana Rayon Corporation, 151 NLRB No 5
ar Allegedly. Jackson did not advise his so competent Counsel that the
letters had not been distributed, until after the Regional Director's
Decision setting forth that they had admittedly been distributed
4' Obviously, a misapprehension under the law and contrary to
statements in other letters
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(5), Respondent falsely and coercively told them that if
a majority of the employees vote for a union, "you WILL
be required to pay dues and possibly other costs." 49
I specifically do not credit S. Y. Jackson's testimony
unless corroborated by otherwise credited testimony, and
especially where it conflicts with that of Lucas who
impressed me as a totally unbiased and honest witness.
It is manifest from Jackson's testimony that he believed,
and so advised his 150 or more employees that if a majority
of them voted for the Union, "they would have in turn had
to pay dues [to the Union]." He admitted that he falsely,
although he didn't admit the falsity, told the employees
"that if they voted for the Union, they'd have to undertake
picket line duty." This was false and coercive.50
Respondent, Jackson, admitted he had, to my knowledge,
most competent labor counsel. There was no need for him
to fabricate to his employees. Particularly with respect to
Petitioner's Exhibit 3, which Jackson claimed was prepared
for distribution by his so able counsel, and which Jackson
testified was not distributed despite his learned counsel's
advice he stated, "When you hire an attorney, the old
saying is you are a fool if you don't take his advice." Yet, he
testified, and unsuccessfully tried to persuade me with
respect to Petitioner's Exhibit 3, that Respondent was
"second guessing" its attorneys. I find Petitioner's Exhibits
1, 2, and 3 were distributed by Respondent to its employees
and that along with oral statements, as found, they were
coercive within the meaning of the Act.51
I have not reviewed in extenso the testimony of Tony
Jackson. In any event his demeanor impressed me
unfavorably, and considering his testimony in light of the
record as a whole, I do not credit it. As I have noted, Lucas
testified truthfully and without bias. He was fully conscious
of the sanctity of an oath and adhered to it.52
Clearly Respondent, in addition to other coercive
misstatements in its propaganda, threatened the inevitabili-
ty of a strike if the Union won and warned of loss of jobs
due to such a strike.53 Bear in mind that Lucas told at least
six or seven employees the Union could call a strike and
they could be permanently replaced 54
I here note that I do not in any way credit the testimony
of Sherwood Jackson, Jr. (Tony) unless his testimony has
been corroborated by otherwise credited testimony or is
against Respondent's interest. His demeanor impressed me
unfavorably and I specifically do not believe that he
interpreted the "Stop, Think, and Listen" letter contrary to
its contents, as prepared by Respondent's attorneys, even
though he did interpret the letter to various employees. I
specifically credit Jack Yocum's testimony that Tony told
him that if the Union came in the Union would ask for
49 Respondent bombarded its employees with coercive misstatements to
their rights
50 Union members have a protected right to refrain from picketing
51 In Petitioner 's Exh 5, Jackson swore (although he had at least 150
copies) he deposited in the mail or Post Office a dozen letters of what the
entire record refers to as "Exhibit A." Nonetheless, at the hearing herein,
he swore they were not mailed
52 1 inadvertently mislead Lucas into some small confusion in his
testimony I have considered this and find him to have been essentially
truthful
53 This was clearly a threat and coercion and a message of futility if
employees exercised their Sec 7 rights This was a violation of Sec
8(a)(l)(iai) of the Act
higher wages and that if Respondent had to give higher
wages it would have to close down the shop. This was
coercive since it subtly suggested that this antiunion
employer would not agree to any demand of the Union and
would have to close down rather than bargain. I find
nothing coercive in a mere statement by Respondent that it
would have to close down if its costs increased so that
financially it would be unable to operate. But I find here
not a mere prognostication, but a statement to an
uninitiated and uninformed employee that the advent of
the Union would present a factual plant closure. Jackson
told Yocum that if the Union came in, the Union would ask
for higher wages and if they had to be given, the shop would
be closed down 55 Jackson further said that if the Union
came in the employees "would have to strike" and "would
have to picket." This was coercive in violation of Section
8(a)(1). I do not credit Tony Jackson's denials of his
conversations with Yocum. Yocum was without bias
and/or prejudice and was a truthful witness. Petitioner's
Exhibit 9 was a truthful statement of a past recollection
recorded of events as they occurred almost four years
before he testified. He also testified that an affidavit given
to General Counsel about four years before he testified was
true when he gave it. The record makes clear that it was
truly past recollection when recorded. A night or two after
he was rehired, on October 21, Tony Jackson asked him if
Rick Roberts had started the Union. This was coercive.
Tony Jackson then said to him, "If we get a union the
laundry will go broke and we will have to go broke." 56 This
was coercive and was clear in the witness' mind after it had
been legitimately refreshed.
Respondent, coercively, insisted in its communications to
its employees that it had a predisposition to resist all union
demands for union security. This was coercive and violative
of Section 8(a)(1) of the Act.57
I have specifically credited the testimony of Lucas, and
discredited the testimony of S. Y. Jackson, that the letters
contained in Petitioner's Exhibit 3 were distributed by one
means or another to the employees. They were misleading
and coercive within the meaning of Section 8(a)(1) of the
Act.58
Lucas truthfully testified he told Monica Turnetta and
Pefie Martinez, employees, that there probably would be a
strike by the Union.59 He admittedly told another group of
six or seven employees that if the Union called a strike
(unfair labor practice strike or not) they could be
permanently replaced.60
I find Yocum was an honest witness and that his
testimony, including his past recollection recorded, Peti-
tioner's Exhibit 9, is true. Tony Jackson's testimony, to the
54 Obviously , with no reference to "unfair labor practice strikes "
55 There is no probative evidence that such was Respondent's financial
picture
56 No probative evidence of the truth of this
51 It had a closed mind as to mandatory subjects of collective
bargaining
58 See G C Exh 2(B), pp 3-4
59 This was before the election and was coercive within the meaning of
Sec 8 (a)(l) of the Act Of course a strike was possible, but not forseeably
probable, and these employees might be liable for a loss of wages or jobs
60 He did not distinguish between economic and unfair labor practice
strikes
EXCELSIOR LAUNDRY COMPANY 923
extent that it contradicts Yocum's, is not credited, nor is it
credited in any way unless it is corroborated by otherwise
credited testimony.
I specifically credit the testimony of Pefie Martinez, a
discharged marine who was in the Vietnam conflict and
Rita Garcia who is no longer employed by Respondent.
Martinez truthfully testified that before the election, Tony
Jackson told a group of employees that if the Union came
in, Respondent could not afford to pay them and if they
demanded raises, Respondent would have to close the shop,
and if they went on strike Respondent could replace them
and they would be out of a job. This was coercive, in
violation of Section 8(a)(1) of the Act. Garcia truthfully
testified that Jackson told about 25-30 employees, that "If
the Union got in we would strike and we would be
replaced." He added that the union dues would be very
high and there would be about a $60 initiation fee.61 I find
these statements were misleading and coercive within the
meaning of Section 8(a)(1) of the Act.62
G. Activities of Henry Benton
I find insufficient evidence that Benton was a supervisor
within the meaning of the Act and disregard any testimony
indicating that he engaged in any illegal activities binding
upon Respondent.63
H. Unlawful Interrogations of Employees and Other
Acts of Coercion
I find that about five weeks before the election, Jackson
(Tony) asked Yocum what he thought about the Union
coming in. He also asked him what he had heard about
"Rick" Roberts joining the Union. Jackson added that if
the Union came in the Union would ask for higher wages
and that if they had to give higher wages, they "would have
to close down the shop." Jackson added that if the Union
came in the employees would have to strike for higher
wages and they would have to picket and the strikers would
be replaced. I find all of this coercive within the meaning of
Section 8(a)(1) of the Act. Jackson further coercively asked
Yocum to tell his wife to get out of the Union since "it
wasn 't good for neither one of us."
According to the credited testimony of Yocum, about
three weeks before the election, Lucas asked him what he
thought about the Union I find all of this to be restraint
and coercion in violation of Section 8(a)(l) of the Act and
coercive.
Tony Jackson admitted that to an applicant for
employment about November (Mayfield) that he had told
Mayfield that if a union got in and a wage demand was
made "we would have to adjust prices and would then lose
61 The average wage was about 82 cents per hour
62 1 find that prior inconsistent statements made to Marron by these
witnesses, weaken their sworn testimony before me not at all Marron was
not only counsel, but also part owner of Respondent Martinez said
truthfully that he did not give truthful answers to Marron, "because I
figured I might get fired " Garcia truthfully testified that she was afraid she
might get fired if she told the truth and the whole truth to Respondent
when management questioned her 1 credit the testimony of these witnesses
as given before me, in entirety. 1 have considered the extensive coercive
activity of Respondent and have looked at their prior inconsistent
statements to Respondent's lawyer and part owner in this light. I credit
their unbiased testimony as given before me entirely
volume." He told Mayfield that the Union was trying to
organize the plant, and asked him if he had any feelings
about it.64 He told Mayfield that the Union was trying to
organize the plant and he asked him what his feelings were
about a plant where a union was trying to organize. This
was clearly coercive. He told Mayfield that if anyone
bothered him about the Union to let him know about it.65
Garcia's testimony made clear that interrogation of her
implanted a fear that a truthful answer would be a matter,
at least, of embarrassment. "The step from embarrassment
to restraint or intimidation [or coercion] is a short one."66
The "Stop, Think and Listen" letters were at least a fraud
and coercion. So were the other letters and many of the oral
statements.
Jackson, incorrectly, stated the law as a reason for writing
each of his employees that if they voted for the Union, they
must pay dues every month. He stated in his testimony that
if a majority of the employees voted to join the Union, as I
interpret his testimony, all employees would have to pay
dues. I find this untrue and coercive within the meaning of
the Act, without regard to any so-called "good faith." He
substantially admitted that he was not telling his employees
the whole truth with respect to the Union winning the
election. I find that by his half-truths and outright lies he
coerced the employees in their Section 7 rights. Jackson
testified that he advised each of his employees that if he
voted for the Union he must pay union dues every month.
In the absence of a valid union security agreement this was
a false and coercive statement. He similarly told his
employees that a vote in favor of the Union would mean
that "the individual employees would be required to pay
union dues." 67 This was coercive.
It was coercive conduct in violation of Section 8(a)(1) of
the Act for Respondent to procure surveillance by Maggie
Davis.68
I find Henry Benton's surveillance as described, supra,
was coercive within the meaning of the Act, without regard
to whether he was a supervisor within the meaning of the
Act.69
I find General Counsel's Exhibit 4 to be true. In the next
to the last paragraph, Wilson made it clear to Bachicha that
union meetings were subject to surveillance by Respondent.
This was coercive.
I find insufficient probative evidence that Benton was a
supervisor within the meaning of the Act. It is an extremely
close question and in light of the credited testimony of
Martinez and Garcia and since Benton failed to testify, I
may well be reversed. But I call them as I see them.
64 With the exception of the surveillance sanctioned by Lucas and Tony
Jackson
64 I find this was coercive within the meaning of Section 8(a)(1)
61 This was coercive
66 See N LR B v Syracuse Color Press, inc, 209 F 2d at 600
61 Note that the Court ordered a hearing that should encompass not
only "all pertinent objections," but also, whether "there was coercion
affecting the fairness of the [First l election ."
68 See Tony Jackson at pp 149-150
69 See Lucas-Tr 242-244. and Jackson 's admission at Tr 151 that
Benton reported to him as to who had attended the union meeting
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
As remanded, by the Court of Appeals and the Board, I
find that Respondent engaged in much coercive conduct in
violation of Section 8(a)(1) of the Act in addition to the
distribution of the so-called antiunion cards, and that this
conduct was roughly about the time of such circulation,
and that all of this misconduct rendered the first election
invalid as not free from Respondent 's coercion . The Board
properly set aside the first election and directed a second
election which the Union won and the Union was properly
certified . Prior to the first election , Respondent endeavored
to and did commit many violations of Section 8(a)(1) of the
Act by interfering with, restraining and coercing its
employees in their protected right freely to choose and
select or not a collective -bargaining representative. The
Board correctly set aside the first election, and the
certification after the second election is and has been
correct and outstanding.70
PostScript
Let the record and this Decision reflect that Respondent
concedes in its brief that if the "Stop , Listen , Think" letter
were read by itself (as I am certain many an employee did),
it "could be construed as advice to the reader that if he
alone cast his vote for the Union the consequences of
liability for dues, initiation costs, fines , picketing , amenabil-
ity to the direction of a union steward , and job loss on
account of going out on strike could befall him."
Respondent insists each reader must have known that the
"consequences of unionism described in the letter were
those which could flow from a union victory." [Emphasis
supplied.] I do not agree. This Respondent was paying its
average employee 82 cents an hour I do not find
Respondent 's employees have been demonstrated to be
imaginative rather than literal . I would expect them to
believe their employer . He told each coercive nontruths and
I cannot but believe that they, at 82 cents an hour,
completely dependent upon Respondent, believed what
Respondent told them. Respondent 's messages were not
vague. They were to the point and in many instances they
misled and coerced the employees as to their Section 7
rights. Respondent is not to be heard to say it told
employees that which was untrue , but I should find the
employees did not believe what it said.
70 1 doubt that I am called upon to make this latter finding under the
remands
Imagine, Respondent in its brief claimed it clarified any
ambiguity in a prior letter by stating , "If a majority of the
employees do vote for a union you will be required to pay
dues and possibly other costs " This is untrue, misleading and
coercive in that it ignores the Act 's requirement that union
security must be bargained for and Respondent told its
employees they would never have to join a union.
When Respondent told its employees that they must join
the Union, etc., in the event they voted for the Union, it was
not merely prophesying what a union would demand,
rather, it was, as I read the letters , telling them , falsely, their
legal responsibilities and coercing them . With most able
counsel , it was falsely and coercively advising its employees
as to possible adverse consequences which might flow from
their exercise of Section 7 rights. I have taken into account
the economic dependence 71 of the employees on Respon-
dent "and the necessary tendency of the former, because of
that relationship , to pick up intended implications of the
latter that might be readily dismissed by a more disinterest-
ed ear " 72 Just think what effect the words of a lawyer-
owner must have had on these employees making but 82
cents an hour!
Let it be well noted that I do not credit the testimony of
Tony Jackson , whose demeanor impressed me unfavorably,
but I do credit the testimony before me of Martinez and
Garcia, and do not in anyway credit their alleged prior
inconsistent statements.
CONCLUSIONS
I conclude that the record clearly and substantially
establishes the validity of Petitioner 's Objections 1, 2, and 5
and "that as a matter of fact there was coercion affecting
the fairness of the [first ] Election."
Believing that the first election was properly set aside and
that the Board 's Certification after the second election was
proper , it is respectfully recommended that Respondent be
ordered to bargain with the Union for at least one year
from the time it begins "good faith " bargaining with the
Union . Since the original petition was filed in 1965, it is
respectfully recommended that this case be expedited.
Respondent 's employees have unlawfully been deprived of
a bargaining representative for over four years. There was
"coercion affecting the fairness of the [first] Election."
71 Eighty-two cents an hour
72 N L R B v Gissel Packing Co, et al, supra