McEwen Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 3, 1968

172 N.L.R.B. 990 (N.L.R.B. 1968)

990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McEwen Manufacturing Company and Washington
Industries , Inc. and Amalgamated Clothing Work-
ers of America , AFL-CIO. Case 26-CA-2598
July 3, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On May 23, 1967, Trial Examiner Lowell Goer-
lich issued his Decision in the above-entitled
proceeding, finding that the Respondent McEwen
Manufacturing Company (herein called McEwen)
had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent McEwen had' not engaged in certain
other unfair labor practices alleged in the com-
plaint and recommended that these allegations of
the complaint be dismissed . The Trial Examiner
granted the motion to dismiss the complaint as to
Respondent Washington Industries , Inc. (herein
called Washington). Thereafter, Respondent
McEwen, the General Counsel, and the Charging
Party each filed exceptions to the Trial Examiner's
Decision and a brief in support thereof. In addition,
the General Counsel and the Charging Party filed
briefs in answer to the Respondent's exceptions;
and, finally , Respondent Washington filed an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, briefs,
answering briefs, and the entire record in the case,
and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner with the
modifications discussed below:
I In agreement with the Trial Examiner , we find
that the Respondent McEwen is the sole employer
.of the employees here involved, and that the com-
plaint against Washington Industries , Inc. (herein
called Washington ), as a joint employer was
properly dismissed.2
2. The Trial Examiner found, and we agree, that
the Respondent 's no-solicitation rule, being valid
on its face,3 was lawfully posted on May 20, 1966,4
in order to maintain orderly and efficient produc-
tion in the plant . Contrary to the General Counsel's
contention , the record supports the Trial Ex-
aminer 's finding that the rule was posted only after
the Respondent noticed the quality and quantity of
the employees' work had declined . In these circum-
stances, the fact that the rule was posted soon after
the Union 's organizing efforts began does not war-
rant an inference that its purpose and intent was to
discourage union activities among the employees.5
3. We agree with the Trial Examiner 's conclu-
sion without , however , adopting his rationale, that
the Respondent violated Section 8(a)(1) of the Act
by Plant President Pedigo's letter of July 14 and
speech of July 26 to all employees. Unlike the Trial
' Respondent McEwen has excepted to many of the credibility findings
made by the Trial Examiner It is the Board 's established policy, however,
not to overrule a Trial Examiner's resolutions with respect to credibility un-
less, as is not the case here, the preponderance of all the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
r M Lowenstein & Sons, etc , 150 NLRB 737, fn 2 at 738, cf Interna-
tional Union of Operating Engineers , Local 428 ( See Bee Slurry Matic, Inc ),
169 NLRB 184, and cf Miami Newspaper Printing Pressmen Local No 46
(Knight Newspapers , Inc ), 138 NLRB 1346, enfd sub nom Miami
Newspaper Printing Pressmen 's Local 46 v N L R B, 322 F 2d 405
(C A D C ) Member Brown , in agreement with the General Counsel's con-
tention, would find that Washington and McEwen are joint employers for
purposes of this proceeding in view of their close ownership and manage-
ment relationships As more fully described by the Trial Examiner,
Washington , a holding company , is the sole owner of First National Com-
pany (FNC), of which McEwen is a wholly owned subsidiary In addition,
Washington owns 89-1/2 percent of the voting stock of Washington Manu-
facturing Company ( WMC), a jobbing and wholesale operation , which is
McEwen 's only customer McEwen's entire production output consists of
garments made to order , under a cost -plus contract , for WMC from materi-
als provided by the latter Thus, McEwen, in effect , functions merely as the
production arm of WMC In this posture , the latter is in a strategic position
to dictate and control McEwen 's production policies including, of course,
wages paid McEwen 's employees Washington , presiding over WMC, FNC,
and McEwen, controls and manages its subsidiaries through interlocking
and overlapping boards of directors and corporate officers Washington
selects the directors of FNC who, in turn , pick the directors of McEwen
McEwen 's president, vice president , and secretary -treasurer are also
directors of WMC In addition, McEwen 's vice president and secretary-
treasurer are officers and directors of FNC and Washington
The executive offices of Washington , FNC, and WMC are located in the
same building in Nashville , Tennessee In Member Brown's opimon, these
facts are distinguishable from those in the cases cited by his colleagues and
amply support a finding that Washington exercises such control over the in-
ternal labor policies of McEwen as to render it a joint employer with
McEwen and he would so find Freda Redmond and Sir James , Inc, 147
NLRB 1025, cf Phil-Modes, Inc, and Harold Berlin d/b/a Berlin Coat
Manufacturing Co, 159 NLRB 944, 947
3 No exception was taken to the Trial Examiner 's finding that the rule
was lawful on its face
Unless otherwise indicated, all dates are in 1966
Member Brown would find that the record establishes that this rule was
promulgated for the unlawful purpose of frustrating employee exercise of
Sec 7 rights , since he views the evidence as indicating that Robertson
looked for some work deviations when he learned of the union activities
and "later"found the work was not "quite as good "
172 NLRB No. 99
McEWEN MFG . COMPANY 991
Examiner,' however, we base our conclusion solely
upon the threatening remarks contained in these
communications.' Thus, in both the letter and
speech Pedigo recalled what happened to a particu-
lar manufacturing company in nearby Henderson,
Tennessee, which closed soon after the employees
there selected this Union to represent them.
Pedigo,s letter warned the employees that "this
[closing the plant] could happen here [at McEwen]
if a union is voted into this plant...." And, in his
speech, Pedigo threatened that "this Union will do
the same thing for you ... that the Union has done
to the employees of [the closed plant in Hender-
son].... We do not want that to happen. It will not
happen if we have any control of the matter, but if
the Union comes in the Company cannot be
responsible for what happens ...." In addition,
Pedigo's letter warned the employees that if they
select the Union to represent them, the Company
might decide not to renew its lease with the city of
McEwen for the land on which the plant is located,
reminding them that the present lease would expire
within a few months. We find that these remarks
clearly threatened the employees with plant closure
if they selected a bargaining representative, and
that the Respondent thereby interfered with,
coerced, and restrained the employees in violation
of Section 8(a)(1) of the Act.
4. We also agree with the Trial Examiner that
the Respondent, through its supervisors, Robertson,
Hargis and Parchman, violated Section 8(a)(1) of
the Act by variously interrogating the employees
about their union sympathies, threatening em-
ployees with economic reprisals if they selected the
Union to represent them, promising them benefits if
they refrained from supporting the Union, and
making other derogatory remarks about union af-
filiation, all of which, we find, tended to interfere
with, coerce, and restrain the employees in the ex-
ercise of their Section 7 rights. Unlike the Trial Ex-
aminer, however, we do not limit our findings to
the separate incidents of supervisory interference
detailed by him as items (a) through (i) of his con-
clusion. Rather, we view these incidents as merely
illustrative of the extensive and widespread acts of
interrogation and intimidation in which the Respon-
dent's supervisors engaged, as more fully described
in the Trial Examiner's recitation of facts, and base
our conclusion upon the totality of the Respon-
dent's conduct and the context in which the enu-
merated incidents occurred."
5. The Trial Examiner recommended dismissal
of the allegation that the Respondent violated Sec-
tion 8(a)(5) of the Act by refusing to recognize and
bargain with the Union on and after May 289
because he concluded that the Union's majority
status on that date had not been established. Con-
trary to the Trial Examiner, we find that the Union
was entitled to recognition on that date and that the
Respondent's refusal to grant recognition and to
bargain with the Union violated Section 8(a)(5) of
the Act.
As more fully described in the Trial Examiner's
Decision, the Union began its campaign to organize
the Respondent's production and maintenance em-
ployees early in May and by May 28 it had obtained
signed authorization cards from 109 of the 172 em-
ployees then in the bargaining unit. Of the 109
cards which were offered in evidence to establish
the Union's claim of majority status , the Trial Ex-
aminer admitted 100 cards 10 in evidence as
"seemingly valid." And, of the 100 cards thus ad-
mitted, the Trial Examiner found that 14 were in-
valid for one reason or another, and that the
Union's claim of majority therefore had not been
established. Thus, the Trial Examiner rejected nine
cards as invalid because he found insufficient
evidence to establish that these cards were signed
' The Trial Examiner erred in considering himself bound by, and relying
upon , the Board 's findings sustaining objections in the prior representation
proceeding , as his basis for concluding that Pedigo's speech of July 26 and
letter of July 14 were violative of Sec 8 ( a)( I) of the Act It is well settled
that the Board 's findings and conclusions with respect to conduct alleged as
objectionable in a representation proceeding are not binding upon the Trial
Examiner in a subsequent hearing where such conduct is alleged as an un-
fair labor practice, since the issues are different in the two types of
proceedings Cf Dal-Tex Optical Company, Inc, 137 NLRB 1782,
1786-87
r Member Brown would not fragmentize the letter and the speech but
would find each unlawful in its entirety In addition, Member Brown agrees
with the General Counsel's contention that the Respondent also violated
Sec 8 ( a)(I) by Pedigo's speeches of May 24 and June 15, both of which
stressed the futility of union representation and warned that unions bring
nothing but trouble
" The General Counsel has excepted to the Trial Examiner's failure to
make additional findings of 8(a)(I) violations on the basis of evidence ap-
pearing in the record While we agree that the record contains evidence of
other questionable conduct by the Respondent's supervisors, we find it un-
necessary to pass upon or make such additional findings as they would, in
any event , only be cumulative and, therefore , would not affect our remedi-
al order herein
" We find no merit in Respondent 's contention that June 23 rather than
May 28 is the crucial date for determining the Union's majority status
because the Union repeated its bargaining demand in a letter which
Respondent received on June 23 Rea Construction Company, 137 NLRB
1769, fn I at 1770 Accordingly , we also find no merit in Respondent's
contention that the authorization cards of employees who were working on
May 28 but whose employment was permanently terminated thereafter
should not be counted
10 At in 18 of his Decision , the Trial Examiner identified the nine cards
which he refused to admit in evidence but does not state any reasons for his
action At the hearing the parties stipulated , however, that six of the cards
were signed by employees whose employment was permanently terminated
prior to the demand date These cards were properly excluded The
General Counsel has excepted , however, to the exclusion of the cards
signed by Fay Branch , Lula Smith , and Bessie Lou Capps The record in-
dicates, however, that General Counsel withdrew his offer of Capps' card
and did not subsequently reoffer it in evidence The card signed by Smith is
considered in the text below
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose stated thereon, namely, to
authorize the Union to act as the employees' bar-
gaining agent, and five cards because he found that
the employees' signatures were insufficiently
authenticated since the General Counsel did not
call any of these employees as a witnesses and
failed to account for his failure to do so. The
Respondent has excepted for numerous reasons to
the Trial Examiner's failure to find 42 other cards
invalid for purposes of establishing the Union's
majority. All cards in issue are discussed below and,
to the extent possible, are considered together with
others alleged to be invalid for the same or related
reasons. The remaining 44 cards are not alleged to
be invalid.
Signatory did not testify and authenticating wit-
ness is insufficient; printed signatures: The Trial Ex-
aminer rejected 4 cards as not having been properly
authenticated," i.e., those signed by Lemuel L.
Palk, Eldton Bishop, Norma Jean Black, and Wil-
liam D. Shields, and excluded that of Lula Smith,
on these grounds and the Respondent contends that
10 others12 should be held unacceptable for the
same reason. In addition, the Respondent has at-
tacked the card of Mary M. McCaslin solely on the
ground that the signature is printed. We find these
16 cards valid for the following reasons:
Palk's card was rejected because the authenticat-
ing witness, Ellen Betty Elliott, admittedly did not
see Palk sign and he did not physically return the
card to the solicitor. We find these facts immaterial
in the circumstances herein . As found by the Trial
Examiner, based on Elliott's uncontradicted
testimony, Elliott gave Palk a blank authorization
card which she asked him to sign; later, when she
asked Palk for this card, he told her to get it from
the glove compartment of his car. Accordingly, she
took it from his car, at which time it had already
been signed and the blanks thereon had been filled
in, except that she inserted the name of the com-
pany and the job Palk held. The Board has long
held that an authorization card may be properly
authenticated by a person other than the signer and
that the latter's absence as a witness need not be
accounted for.13 Thus, a card may be authenticated
by a witness who testifies that he observed its ex-
ecution ," but the Board will also accept as authen-
tic any authorization cards which were returned by
the signatory to the person soliciting them even
though the solicitor did not witness the actual act of
signing . 15 In this case , Palk not only returned the
card in due course by telling Elliott where to pick
up his card,16 but he also thereby acknowledged
any writing thereon as his own." Nor is a card
which is otherwise properly authenticated rendered
invalid simply because the signer had not filled in
all of the blanks when he turned it in to the
Union.1°
A card excluded from evidence by the Trial Ex-
aminer for similar reasons was that of Lula Smith.
We find merit in the General Counsel's position
that this card should have been admitted into
evidence and counted as a valid designation of the
Union. Bonnie Jane Brooks solicited employee
Smith's signature and testified without contradic-
tion that she personally witnessed Lula Smith' s sign-
ing of the card on the date indicated thereon-"
She further testified, and it is undenied, that
Smith's name and job title had been written on the
card before it was returned, but she was unable to
state with certainty that the Respondent' s name ap-
peared on the card when it was turned over to her.
It was this uncertainty, coupled with the fact that
Smith was not called to testify, that led the Trial
Examiner to refuse to accept the card. However, in
view of the general rules summarized above and
cases cited in connection with Palk's card, it is
patent that this holding was not warranted by these
factors, either together or standing alone.
A similar question is raised with respect to the
cards signed by the 10 persons listed in footnote 13,
above. The Respondent contends these cards were
insufficiently authenticated and should be held in-
valid for purposes of determining majority status
because the individuals who signed the cards did
not testify.20 However, in each instance another em-
ployee who had solicited the signature testified
without contradiction that she had seen the card
" The Trial Examiner correctly rejected two other cards-that of Ruby
Nell Christian because the evidence fails to establish that this card was
signed on or before May 28 and that of Fay Branch because it is not
established that she was considered to be on temporary leave for maternity
" Annabelle Crowell, Joyce Dotson, Helen M Larkin , Jackie Cook,
Joslyn M Smith , Gladys Hinson , Betty Ann Turner, Violet Bailey, Lola
Craft, and Pearl Pate
" Thrift Drug Company of Pennsylvania, 167 NLRB 426 , Universal Metal
Finishing , A Division of C A Roberts Co , 156 NLRB 138, 146 (card of
Sewards)
Thrift Drug Company, supra, and cases cited at fn 7 (TXD)
's Id and cases cited at in 8 (TXD)
N L.R B. v Howell Chevrolet Company, 204 F 2d 79, 85-86 (C A 9),
enfg 95 NLRB 410
" Verlin L Pulley, et al, dlbla Capitol-Varsity Cleaning Co, 163 NLRB
1057 (card of Marjorie Maynor), enfd in pertinent part 395 F 2d 870
(CA 6, June 5, 1968)
1s Jbid ( Marjorie Maynor's card)
1s All parties had full opportunity to examine and cross-examine Brooks
concerning the facts on which we rely
20 We note that the card of Annabelle Crowell, which is one of those with
which we are concerned here, had the signer 's name printed rather than
written , but the Respondent has not attacked it on that basis as it has others
discussed hereinafter Rather , it relies solely on the failure of the signatory
to testify in person
McEWEN MFG. COMPANY 993
signed on the date shown thereon, that the signa-
tory then turned over the card to the solicitor, and
that she (the solicitor) in turn gave the card to
Agnes Hooper. As stated above, it is well settled
that either the testimony of a witness to the signa-
ture, or the testimony of the solicitor that the card
was returned in due course, is sufficient to authen-
ticate the card for purposes of establishing its
validity.
The Trial Examiner rejected, as insufficiently
authenticated, the cards of Bishop and Black not
only because they were not called to verify their
signatures , but also because their names were
printed on the cards in the space provided for
signature. Agnes Hooper testified that she gave
Bishop a blank authorization card which Bishop ex-
ecuted in her presence on May 11 by printing his
name in the space provided for signature and
thereupon returned it to her. Hooper admittedly
wrote Bishop's name on the card above the words
"Print your full name here." And, as to Black's
card, employee Carolyn Betty testified that she
gave a blank card to Norma Jean Black and that,
when Black subsequently returned the card to her,
Black's name had been printed in the signature
space. Betty admittedly did not witness the execu-
tion of Black 's card. In view of the foregoing un-
contradicted testimony, we find that these cards are
not rendered invalid by the fact that they bear
printed signatures rather than being signed in
script,21 or by the fact that Bishop and Black were
not called to testify, or by the fact that Black's
signature was not witnessed.22
Another card which bears a printed signature and
which the Respondent urges should be rejected for
purposes of determining majority is that of Mary M.
McCaslin. However, Mrs. McCaslin testified in per-
son and identified her card and signature as having
been completed on the date shown upon it. It is
therefore clear that her card is not rendered invalid
because she printed her name rather than writing it
in script.
The final card in this group is that bearing the
name "William D. Shields." The Trial Examiner re-
jected this card because that name did not appear
on the Respondent's payroll for May 28 and
because Shields' absence as a witness was not ac-
counted for. However, we find that Shields' card
was properly authenticated and may be counted in
computing the Union's representative status. The
record shows that a "Billy Shields" whose Form
W-4 is signed "Billy D. Shields," was on the
Respondent's payroll on the critical date. Further-
more, Agnes Hooper testified, without contradic-
tion, that employee Bobbie Shields gave William D.
Shields a blank authorization card on May 10, and
that the latter then filled in and signed the card in
Hooper's presence. In view of this testimony, it was
not fatal to the validity of Shields' card that he was
not called personally to identify his signature. Nor
does Respondent contend that "Billy D. Shields" is
not the same person as "William D. Shields."
Rather, Respondent challenged the validity of
Shields' card on the ground that his employment
was permanently terminated on June 6, before the
Union's second demand for recognition and before
the election of July 27. We have heretofore re-
jected the contention that cards signed by persons
terminated after May 28 should not be counted.23
Employees who quit after May 28: The Respon-
dent contends that 20 employees who signed
cards24 were no longer its employees at the time of
the hearing, having voluntarily severed their em-
ployment relationship sometime after May 28 and
that their cards must be rejected. Only one of these
employees, Mary Profitt, is alleged to have quit
prior to May 28. However, it is clear from the
record that in the middle of May she learned that
she was to have surgery performed and so informed
the Respondent, but did not quit her job. The
Respondent's payroll list of May 28 shows that she
was carried as an employee, and its records show
that she was terminated August 29. It is well settled
that the determination of a union's representative
status must be based on whether it had been
designated as a representative by a majority of the
employees on the payroll in the appropriate unit on
the crucial date, and we have found that May 28,
the date of the Union' s initial demand , is the time
as of which the finding must be made. Accordingly,
it is clear that there is no merit to the Respondent's
contention and that these 20 cards signed by per-
sons in the Respondent's employ on May 28 should
be counted.
Signatory's intent to designate the Union not
established; employees told or thought cards were for
purpose of having an election : Included in this group
are the 9 cards rejected by the Trial Examiner and
10 attacked by the Respondent25 on this basis.
The Trial Examiner appears to have assessed the
" Verlin L Pulley, et al , supra (cards of Marjorie Maynor and Wilma
Reidenbach)
as Id , Universal Metal Finishing, supra
23 Fn 9, supra
24 Mary Profitt , Diane Gray ( Whitaker ), Shirley Rickard , John Andrew
Mallady, Jessie Marie Elliott , Alneita Rye, Jo Ann Parchman , Zella M Tid-
well, Fern Ann Turner, Bonnie S Brown ( Weatherley ), Gloria J Tidwell,
Bonnie Jane Brooks, Agnes Hooper, Pearl F Jones, Ruth W Curtis, Mar-
garet Geraldean Ross, Bonnie Page, Ethel Barnes, Bonnie Hooper, and
Juanita Herbison
u Sara Suer, Jennie Ethridge, Ruby Poston, Sue Lory, Patsy A Hooper,
Carletta Bernice Coram, Verlene Caballero, Vergie Ethridge, Mary Petty,
and Mildred Curtis
354-126 O-LT - 73 - pt. 1 - 64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
validity of certain cards on the basis of whether the
General Counsel had established the subjective in-
tent of the signer .26 In this respect, the Trial Ex-
aminer appears to have deviated from the principle
that "an employee's thoughts (or afterthoughts) as
to why he signed a union card and what he thought
that card meant cannot negative the overt action of
having signed a card .... 1117 Thus, in the case of
Pearlene Brooks' card, the Trial Examiner con-
cluded that it could not be inferred that she signed
it for the purpose of authorizing the Union to
represent her. Brooks, however, testifying on'
Respondent's behalf, admittedly signed the card
after personally filling in the blanks thereon, and
she then returned it to the person who had solicited
her signature. Under the circumstances, the fact
that she may have been told that the purpose of the
card was "to show that we might be interested in
the Union" (which is in fact a fair representation of
its purpose, but in any event is far from a statement
that the card would not be used for the purposes
stated on it), does not constitute probative
evidence to negative her overt act of signing.28 Ac-
cordingly, her card should be counted.
Since the Trial Examiner obviously applied an in-
correct standard in determining the validity of the
cards, it is necessary to reexamine the remaining 8
rejected on this basis, as well as the 10 questioned
by the Respondent.29 Of these 18 cards, there are 5
as to which there is no assertion that any statement
was made that the union card was for the purpose
of an election, and 1 as to which the statement as-
sertedly made was clearly overcome by other
evidence showing nonreliance on that statement.
Thus, Sara Siler testified that she was told that they
"needed so many to send to the union ," without
any reference to an election; Dorothy Parchman
testified that she was told the card was "for an elec-
tion of the Union"; Vergie Ethridge testified that
she had no discussion with anyone concerning its
purpose before signing the card, but she signed to
have an election; Sue Lory testified that she read
the card before she filled in the last three lines, in-
cluding her signature, and "understood" that the
card was to get an election; and Patsy A. Hooper
testified that she knew it was a union card that she
SB See fn 20 of the Trial Examiner 's Decision, infra
rr Joy Silk Mills, Inc v N L.R.B , 185 F 2d 732, 744 (C A D C ) cert de-
nied 341 U S 914 , enfg as modified 85 NLRB 1263
1 Delight Bakery, Inc, 145 NLRB 893, 904, enfd 353 F 2d 344 (C A
6)
"The remaining 44 cards admitted into evidence are not alleged by the
Respondent to be invalid As each was identified and authenticated on the
record, we find that they may be relied on to determine the Union's
representative status
70 An election , pursuant to stipulation for certification upon consent
election , was conducted on July 27 in the following unit, which we hereby
find to be appropriate
signed, but "thought it would be a union and if the
election came you could vote the way you wanted
to." Verlene Caballero testified that she was told
that "if they had a certain percentage they could
get an election at the plant." But in addition, she
testified that she wanted to know what was going
on and figured that if she joined she would know
what was going on, thus indicating unequivocally
that she signed for the express purpose of joining
the Union. Caballero could not render her designa-
tion of the Union ineffective by a mental reserva-
tion, if she had one. Since each of these witnesses
was testifying to her own subjective purposes or
thoughts in signing , this testimony in this respect
did not serve to negative the probative force of
their own act of signing, and we therefore find
these six are valid designations of the Union.
Of the remaining cards, five signatories (Carletta
Bernice Coram, Mary Petty, Hazel Curtis, Ruth
Pittman, and Margie Adams) each testified to the
effect that when she was asked to sign she was told
that they needed to get enough cards for an elec-
tion, and seven (Margie James, Margaret Nell
Frazee, Blanche White, Irene Buchanan, Jennie
Ethridge, Ruby Poston, and Mildred Curtis) each
testified to the general effect that she was told that
they needed "so many cards" to get an election and
there was no membership obligation as a result of
signing , that they did not have to vote for a union
even if they signed the card. Even under the most
stringent tests, for the reasons set forth below, we
are unable to conclude that under the circum-
stances here, where an election was held30 in the
context of widespread interrogation and threats by
the Respondent, the cards of Coram, Petty, Hazel
Curtis, Pittman, and Adams must be rejected. As to
the latter seven, referred to above, we need not de-
cide whether under our rationale, infra, these cards
may properly be counted, inasmuch as the other
cards found above to be valid total 92 and hence
constitute a majority of the 172 employees in the
unit on May 28.
The central inquiry in determining the effect to
be given authorization cards is whether the em-
ployees, by their act of signing, manifested an in-
tent to designate the union as their bargaining
All production and maintenance employees of the Employer at its
McEwen , Tennessee, plant , including the shipping clerk, the
mechanics, the ticket and recut girl and the marker, but excluding the
foreladies , cutting department foreman, all office clerical employees,
and all guards , professional employees and supervisors as defined in
the Act
The Union lost that election by a vote of 96 to 60, and , thereafter, filed
timely objections to conduct affecting the election The Regional Director,
upon investigation , recommended that the objections be sustained Excep-
tions to the Regional Director 's report were duly filed and, on November
18, 1966, the Board issued a Decision and Order setting the election aside
and directing a second election
McEWEN MFG . COMPANY
agent . 31 In assessing that intent, the wording of the
card is of paramount importance. Where a card on
its face clearly declares a purpose to designate the
union , the card itself effectively advises the em-
ployee of that purpose, and particularly so where,
as here, the form of the card is such as to leave no
room for possible ambiguity.32 An employee who
signs such a card may perhaps not understand all
the legal ramifications that may follow his signing,
but if he can read he should and must be assumed
to be aware at least that by his act of signing he is
effectuating the authorization the card declares.33
Without ascribing to the signing of such cards all
the solemnity and binding effect associated with
such legal documents as deeds or contracts, we be-
lieve there is no valid basis in reason or law for
denying face value to the signed cards, as in the
case of other signed instruments , absent affirmative
proof that the signing was a product of
misrepresentation or coercion.34
Declarations to employees that authorization
cards are desired to gain an election do not under
ordinary circumstances constitute misrepresenta-
tions either of fact or of purpose.35 That purpose,
moreover, is one that is entirely consistent with the
authorization purpose expressed in the cards as well
as with the use of the cards to establish majority
support. A point sometimes overlooked is that, in
basic purpose, there is no essential difference
between cards that are needed for a showing of in-
terest to gain an election and cards that must be
used to support a claim of majority designation in
" Levi Strauss & Co, 172 NLRB
Because the card here involved is forthright and unambiguous in its
heading and text , the instant case is distinguishable for that reason alone
from N L R B v Peterson Brothers , Inc, 342 F 2d 221 (C A 5), in which
the court was concerned with and based its decision on a card which it re-
garded as ambiguous on its face And in I T T Semi-Conductors, Inc v
N L R B , 395 F 2d 257 (C A 5, 1968), reversing in relevant part 165
NLRB 716, the court found the card even more ambiguous than the one in
the Peterson case
'For this reason , and in the absence of evidence that they were
prevented from doing so, we find it immaterial that a number of the em-
ployees herein testified that they did not read the card before signing it In
any event , it seems inconceivable that in a campaign as vigorous as that
carried on in this situation by both the Union and the Respondent the em-
ployees would be unaware of the nature of cards that were being dis-
tributed and they were being asked to sign Cf Levi Strauss & Co , supra
"See Cumberland Shoe Corporation , 144 NLRB 1268, and Order
Amending Decision , January 13, 1964, enfd 351 F 2d 917 (C A 6) For
other recent court cases upholding that principle , see, e g , International
Union , United Automobile , Aerospace and Agricultural Implement Workers
of America UA W (Preston Products Company, Inc v N L R B, 373 F 2d
671 (C A D C 1967), enfg 158 NLRB 322, Amalgamated Clothing
Workers of America, AFL-CIO (Sagamore Shirt Co) v. N L R.B ,
365 F 2d 898, 906-907 (C A.D C), Happach v N L R B., 353 F 2d
629 (C.A 7)
Recent court decisions which have questioned the validity of the Board's
principles concerning authorization cards include N L R B. v Dan Howard
Mfg Co, 390 F 2d 304 (CA 7, 1968), Crawford Mfg Co, Inc v
NLRB , 386 F.2d 367 (C.A 4), cert. denied 390 U S 1028 (1968),
N L.R.B v Swan Super Cleaners, 384 F 2d 609 (C A 6), N L R B v Peter-
son Bros , Inc , supra , Engineers & Fabricators , Inc v N L R B , 376 F 2d
482,486-487 (C A 5)
995
an 8(a)(5) unfair labor practice proceeding. The
requisite showing under Section 9(c)(1)(A) that "a
substantial number of employees ... wish to be
represented for collective-bargaining purposes"
cannot be made by cards which simply request an
election, but must be by cards stating the wish to be
represented by the particular union. Such a require-
ment entails an expression of intent in all respects
the same as that in a card which authorizes
representation for bargaining purposes.
The fact that employees may be told that an elec-
tion is contemplated or that the card will make an
election possible does not in our view provide suffi-
cient basis in itself to vitiate unambiguously worded
authorization cards on the theory of misrepresenta-
tion. A different situation is presented, of course,
where union organizers solicit cards on the explicit
or indirectly expressed representation that they will
use such cards only for an election and sub-
sequently seek to use them for a different purpose;
i.e., to establish the union's majority independently.
In such a situation the Board invalidates the cards
for majority computation since the nature of the
representation is such as to induce a conditional
delivery for a restrictive purpose.36
We believe that this standard comports not only
with sound legal principles but also with the reali-
ties of union organizational practices.37 The Board's
experience shows that in nearly all organizational
situations unions expect to, and do, proceed via the
election route in their effort to gain representation
rights, and they obtain designation cards with the
'SNLRB v Cf Glasgow Co,356F2d476(CA 7)
98 The foregoing does not imply that a finding of misrepresentation is
confined to situations where employees are expressly told in haec verba that
the "sole" or "only" purpose of the cards is to obtain an election The
Board does not suggest such a mechanistic application of the foregoing
principles , but looks to substance rather than to form It is not the use or
nonuse of certain key or "magic" words that is controlling , but whether or
not the totality of circumstances surrounding the card solicitation assures
the card signer that his card will be used for no purpose other than to help
get an election
'i With due deference to the view expressed by the U S Court of Ap-
peals for the Fifth Circuit in its opinion in Engineers & Fabricators, Inc v
N L R B , supra, until the matter has been passed upon by the U S
Supreme Court, we are unable to concur that our approach applies too lax
a standard or that when cards are "challenged because of alleged
misrepresentations in their procurement " the Board must probe " Into the
subjective intent of the challenged signers " Such a standard is at odds with
a long line of judicial authority holding that in the absence of clear proof of
fraud or coercion, full effect must be given a clear authorization card re-
gardless of the subjective state of mind of the signer See, e g , N L R B v
Fosdal, Electric 367 F 2d 784, 786-787 (C A 7), N L R B v Gorbea, Perez
& Morell, S en C 300 F 2d 886, 887 (C A 1), Joy Silk Mills v N L R B.,
supra, Furr's Inc v NLRB , 381 F 2d 562 (C A 10) To open up avenues
of proof of subjective intent would create strong temptations to induce em-
ployees to assert a retroactive repentance or disavowal which would not be
subject to the normal evidentiary checks on truth or falsity In this connec-
tion, see, e g , the discussion by the court in International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America v
NLRB,supra
996 DECISIONS OF NATIONAL
thought of using them first in the preliminary step
to obtaining recognition ; i.e., to make the showing
of interest required for the processing of a
representation petition . It is therefore only to be ex-
pected that there will be considerable discussion
during an organization campaign of a contemplated
representation proceeding and of the need for suffi-
cient authorization cards for that purpose . Indeed,
it would be surprising if no such mention were
made . It is in the exceptional and relatively in-
frequent situations in which an employer by his un-
fair labor practices has made a fair election impossi-
ble38 that unions with a card majority resort to
8(a)(5) complaint proceedings in an effort to
establish their right to representation- in fact, that
avenue is normally closed to unions unless substan-
tial independent unfair labor practices have oc-
curred . 39 We perceive no valid reason for refusing
in a complaint proceeding to accord the usual
probative value to unambiguous authorization cards
simply because at the time the union still thought it
could participate in a fair election it may have
stressed the election use of the cards rather than
the alternative use to which they were later put. As
noted above , there is no conflict or contradiction in
purpose between the use of cards to make a show-
ing of interest in election cases and their use to
establish majority in the limited situations arising
under the Joy Silk doctrine . Absent some other dis-
ability , their use, or proposed use, to secure an
election does not alter their essential character as
designations of the union to act as collective-bar-
gaining representative . To hold otherwise would
only result in allowing an employer to profit from
his own unfair labor practices and thereby frustrate
statutory policy.
In this case , as noted above , we have found that
there was no direct or indirect representation to the
card signers whose cards we have counted toward
the majority that the only purpose of the cards was
to get an election. We have further found that other
matters relied upon by the Respondent do not in-
validate the cards . Accordingly , we conclude that
the Union represented a majority of the employees
at the time it demanded recognition and that the
Respondent violated Section 8(a)(5) in refusing to
grant such recognition for unlawful reasons. As we
have shown , supra, after the Union made its de-
mand for recognition, Respondent engaged in un-
4 Joy Silk Mills, Inc, 85 NLRB 1263, enfd 185 F 2d 732 (C A D C ),
cert denied 341 U S 914
98 This is borne out by the Board's case statistics In fiscal year 1967, for
instance, the Board conducted 8,116 elections . Contested cases in which
union majority was determined by cards, apart from elections, numbered
157-about 1 9 percent of the number of elections conducted Of the
aforesaid 157 cases, all but 16 involved situations where a fair election was
made impossible or was invalidated by employer unfair labor practices
LABOR RELATIONS BOARD
fair labor practice conduct designed to induce em-
ployees to abandon their support of the Union.
Such conduct demonstrates that, in fact, Respon-
dent refused to bargain and filed a representation
petition not because it had a good-faith doubt as to
the majority status of the Union, but in order to
gain time within which to dissipate the Union's
majority and, thereby, to evade its statutory obliga-
tion to recognize and bargain with the Union.40 We
find, moreover, that the unlawful conduct made im-
possible the holding of a free election and that,
consequently, "the Board has no alternative but to
look to signed authorization cards as the only
available proof of the choice employees would have
made absent the employer's unfair labor prac-
tices. "41
THE REMEDY
As we have found that the Respondent has en-
gaged in additional violations of the Act, which go
to the heart of the Act, and that these violations
have been extensive and prolonged, we deem it ap-
propriate to issue a broad cease-and-desist order in
place of the narrow one recommended by the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respon-
dent , McEwen Manufacturing Company , its of-
ficers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
union membership , activities , or sympathies to
discourage their membership in, or support of,
Amalgamated Clothing Workers of America,
AFL-CIO , in a manner constituting interference,
restraint, or coercion within the meaning of Section
8(a)(1).
(b) Threatening to close down the plant or en-
gage in other reprisals if the employees engage in
union activities or if a majority of the employees
select the above Union , or any other labor or-
ganization , as their collective -bargaining represen-
tative.
(c) Refusing to recognize and bargain collective-
These 157 cases were not only those in which Board decisions issued, but
included all such cases, whether closed by informal or formal settlement
agreement in the Region, by Trial Examiner recommendation , by Board
Order, or by court decree
Joy Silk Mills, supra
" Bryant Chucking Grinder Company, 160 NLRB 1526, 1530, enfd 389
F 2d 565 (C A.), cert demed 392 U S 908; New England Liquor Sales
Co., Inc 157 NLRB 153,164.
McEWEN MFG. COMPANY 997
ly with Amalgamated Clothing Workers of Amer-
ica, AFL-CIO.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights to self-organization, to form labor
organizations, to join or assist Amalgamated
Clothing Workers of America, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with the
above-named Union as the exclusive representative
of the employees in the following unit with respect
to rates of pay, wages, hours of work, and other
terms and conditions of employment and, if an un-
derstanding is reached, embody the same in a
signed agreement. The bargaining unit is:
All production and maintenance employees at
the McEwen Manufacturing Company plant at
McEwen, Tennessee, including the shipping
clerk, the mechanics, the ticket and recut girl
and the marker, but excluding the foreladies,
cutting department foreman, and all office
clerical employees, and all guards, professional
employees and supervisors as defined in the
Act.
(b) Post at its plant in McEwen, Tennessee, cop-
ies of the attached notice marked "Appendix." 42
Copies of said notice, on forms provided by the Re-
gional Director for Region 26, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
42 In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order " the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
Following a trial in which the Company, the
Union, and the General Counsel of the National
Labor Relations Board participated and offered
their evidence, the National Labor Relations Board
has found that we violated the law and has ordered
us to post this notice and to abide by what we say in
this notice.
WE WILL NOT interrogate our employees
concerning their union membership, activities,
or sympathies to discourage their membership
in or support of Amalgamated Clothing Wor-
kers of America, AFL-CIO, or any other labor
organization, in a manner constituting inter-
ference, restraint, or coercion within the mean-
ing of Section 8(a)(1).
WE WILL NOT threaten that the plant will
close down, or that you will lose your jobs, or
that other reprisals will be taken if you engage
in union activities or if a majority of the em-
ployees select a union to represent them.
WE WILL NOT refuse to recognize and bar-
gain collectively with Amalgamated Clothing
Workers of America, AFL-CIO.
WE WILL, upon request, bargain collectively
with Amalgamated Clothing Workers of Amer-
ica, AFL-CIO, as the exclusive representative
of our employees in the following unit with
respect to rates of pay, wages, hours of work,
and other terms and conditions of employment
and, if an understanding is reached, we will put
it in writing and sign it . The bargaining unit is:
All production and maintenance em-
ployees at the McEwen, Manufacturing
Company plant at McEwen, Tennessee,
including the shipping clerk, the
mechanics , the ticket and recut girl and
the marker, but excluding the foreladies,
cutting department foreman, all office
clerical employees, and all guards, profes-
sional employees and supervisors as
defined in the Act.
All our employees are free to become or remain,
or to refrain from becoming or remaining , members
of any labor organization.
APPENDIX
NOTICE TO ALL EMPLOYEES Dated By
Pursuant to a Decision and Order of the National
McEwEN
MANUFACTURING
COMPANY
(Employer)
(Representative ) (Title)
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered. defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 746 Federal Office Building , 167 North
Main Street, Memphis, Tennessee 38103,
Telephone 534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GOERLICH, Trial Examiner: On June 15, 1966, a
petition for an election was filed by McEwen
Manufacturing Company sometimes referred to
herein as McEwen. On July 8, 1966, a stipulation
for certification upon consent agreement was ex-
ecuted by the Amalgamated Clothing Workers of
America, AFL-CIO, herein referred to as the
Union, and McEwen. On July 27, 1966, a Board-
conducted election was held among McEwen's em-
ployees; 60 ballots were cast for the Union, 96 bal-
lots were cast against the Union, and 1 ballot was
challenged. On August 3, 1966, objections to con-
duct affecting the results of the election were filed
by the Union and on September 2, 1966, a report
on objections was issued by the Regional Director
for Region 26 recommending that the election be
set aside and that a new election be directed.
McEwen and the Union filed timely exceptions with
the Board to the report on objections. On
November 18, 1966, the Board issued a Decision
and Order setting aside the election conducted on
July 27, 1966, and directing a second election.
In its Decision, Order, and Direction of Second
Election, the Board, for the reasons set forth in the
Regional Director's report, adopted the Regional
Director's findings and recommendations.'
On November 10, 1966, the Union filed an unfair
labor practice charge and on December 7, 1966, it
filed a first amended charge. Upon these charges
the General Counsel for the National Labor Rela-
tions Board (herein called the Board) on behalf of
the Board by the Regional Director for Region 26
on December 30, 1966, issued a complaint and
notice of hearing naming McEwen Manufacturing
Company and Washington Industries, Inc., as the
Respondents. In the complaint, it was alleged that
the Respondents had engaged in and were engaging
in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, as amended, herein
called the Act.2 The Respondents, by answers time-
' The Regional Director, among other things, found "that by its letter of
July 14 or 15 and the speech of Pedigo on July 26, the Employer created an
atmosphere of fear in which the free expression of choice of the employees
was rendered impossible
ly filed, denied that they had engaged in or were
engaging in the unfair labor practices alleged.
Hearing was held at Waverly, Tennessee, on
February 7 through 10 and 13 through 17, 1967,
and at Nashville, Tennessee, on April 7, 1967. At
the hearing each party was afforded a full opportu-
nity to be heard, to call, to examine and cross-ex-
amine witnesses , to argue orally upon the record, to
submit proposed findings of fact and conclusions of
law, and to file briefs. All briefs have been reviewed
and considered by the Trial Examiner.
Issues submitted to the Trial Examiner were:
1. Whether Respondents Washington Industries,
Inc., and McEwen Manufacturing Company are
and have been a single integrated enterprise with
Respondent McEwen Manufacturing Company
being an affiliate of Washington Industries, Inc.,
with common ownership and management and
labor relations policy.
2. Whether Respondents violated Section
8(a)(1) of the Act by: Promulgating and maintain-
ing on the bulletin board at the McEwen plant a no-
solicitation rule; interrogating its employees;
threatening employees with loss of jobs, plant clo-
sure, and less desirable working conditions; and
stressing to employees the futility of selecting the
Union as their collective-bargaining representative.
3. Whether Respondents violated Section
8(a)(5) of the Act by refusing to bargain with the
Union after the Union had been designated by a
majority of Respondents' employees in an ap-
propriate unit as their representative for the pur-
poses of collective bargaining.
Upon the whole record and from his observation
of the witnesses, the Trial Examiner makes the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
Respondent, McEwen Manufacturing Company,
is now and has been at all times material herein a
Tennessee Corporation engaged in the manufacture
of overalls and dungarees at its plant located at
McEwen, Tennessee.
During the past 12 months Respondent, McEwen
Manufacturing Company, in the course and con-
duct of its business operations, purchased and
received at its McEwen, Tennessee, location
materials and supplies valued in excess of $50,000
directly from points located outside the State of
Tennessee, and during the same period manufac-
tured, sold, and shipped overalls and dungarees
valued in excess of $50,000 from its McEwen loca-
tion directly to points outside the State of Tennes-
see.
' Among other things it was alleged in the complaint that the Respon-
dents violated the Act by Pedigo's speech of July 26, 1966, and the letter of
July 14, 1966, referred to in fn I
McEWEN MFG. COMPANY 999
Albert Pedigo is the president of Respondent
McEwen Manufacturing Company, R. Hicks Clark
is the vice president, and Paul A. Hargis is the
secretary-treasurer. These three persons compose
the board of directors. McEwen's sole customer is
Washington Manufacturing Company, with which it
has a cut-and-make contract. Washington Manufac-
turing Company, a wholesaler and jobber, furnishes
the materials which are used for the manufactured
garment for which it is charged on a cost-plus basis.
Pedigo holds perferred stock in Washington Manu-
facturing Company. Respondent Washington Indus-
tries, Inc., owns 89-1/2 percent of the voting stock
of Washington Manufacturing Company and all the
voting stock of First National Company, of which
McEwen Manufacturing Company is a wholly
owned subsidiary. First National Company and
Washington Industries, Inc., have common
directors and officers. Hargis and Clark are respec-
tively the treasurer and secretary of Washington In-
dustries, Inc. Both are on the board of directors.
Other members of the board of directors of
Washington Industries, Inc., are G. L. Comer,
chairman of the board, T. W. Comer, president, E.
H. Hatcher, vice president, and B. Hatfield, vice
president. Hargis' office is located in the 200 block
of Second Avenue in Nashville, Tennessee, where
also are located the offices of other officers and
members of the board of directors of First National
Company and Washington Industries, Inc. By
reason of this proximity Hargis was frequently in
the association with the officers and directors of
First National Company and Washington Industries,
Inc. On occasion, affairs at McEwen were discussed
which included the advent of the Union. However,
Hargis testified that he sought no advice in respect
to how McEwen should treat with the Union
although he kept several of the directors of
Washington Industries, Inc., up to date on what was
happening at McEwen.
Washington Industries, Inc., engages in no activi-
ties other than the ownership of stock.
Thomas M. Robertson is the plant manager at the
McEwen plant and supervises its day-to-day opera-
tions. Pedigo, who resides at Scotsville, Kentucky,
visits the McEwen plant 2 to 4 hours a week.
Pedigo is the highest executive officer of McEwen.3
There is no direct evidence that Washington Indus-
tries, Inc., which exists as a holding company only,
administered or formulated "a common labor rela-
tions policy affecting the employees" of McEwen
Manufacturing Company. On the other hand, Har-
gis testified that McEwen's board of directors
sought to solve the problems of the corporation by
themselves.
What was stated by the Board in M. Lowenstein
& Sons, Inc., 150 NLRB 737, footnote 2, is apposite:
Lyman, doing business in South Carolina, is
one of the wholly owned subsidiaries of
Lowenstein, which is located in New York. Its
chief executive officer is a vice president and
the general manager who holds no positions
with Lowenstein. There is no common board
of directors or integration of operations. They
do not have a centrally controlled or common
labor relations policy and Lowenstein is not in-
volved in the day-to-day operations of Lyman
or otherwise involved in setting wages , hours,
working conditions, or any other terms of em-
ployment of Lyman's employees, nor was it in-
volved in any way in the commission of the un-
fair labor practices found herein. Upon the en-
tire record, we find merit in Respondents' ex-
ception and shall dismiss the complaint as to
Lowenstein.
Accordingly, the motion to dismiss of Washing-
ton Industries, Inc., is granted and the complaint is
dismissed as to the Respondent, Washington Indus-
tries, Inc.
The Respondent, McEwen Manufacturing Com-
pany, admits and the Trial Examiner finds that at
all times material herein Washington Industries,
Inc., has been and is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(1) of the
Act
1. The no-solicitation rule posted on May 20, 1966
On May 20, 1966, Plant Manager Thomas H.
Robertson posted the following rule:
There will be no solicitation of any kind, on
the plant premises by any employee during
working hours.
There will be no distribution of any literature,
notices, cards or paper of any kind in and
about the work areas of any employee at any
time. Non-employees shall not come upon or
be upon the plant premises for the purpose of
making solicitations or distrubuting literature,
notices, cards or paper of any kind.
Exceptions will be allowed to the above rules if
approved in writing by the plant superinten-
dent.
3 He described his functions , " I'm a consultant with Mr Robertson I try
to help him down there "
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robertson testified that sometime during the
second week of May 1966, he received a telephone
call from an employee advising him that union ac-
tivity was occurring. Thereafter, he noticed that
female employees frequened the restroom more
often than they had in the past and were journeying
in groups. He also observed increased visiting at the
employees' machines. According to Robertson, he
also began to notice that "the quality of the work
wasn't quite as it was." Because of the situation he
observed, Robertson testified that he caused to be
posted the rule set out above
The Ge iteral Counsel makes no claim that the
rule is illegal per se. His claim is that it was
published "during the union's organizational cam-
paign in order to discourage union membership ac-
tivities."
The Supreme Court has said in N.L.R.B. - v.
United )reelworkers of America [Nutone Inc.],
357, U.S. 357, 361, "Employer rules prohibiting
organizational solicitation are not in and of them-
selves violative of the Act, for they may duly serve
production, order and discipline." Here the un-
contradicted evidence establishes that the rule
was posted in response to interference with
production and a diminution of the quality of work
performed. The validity of a rule promulgated an("
posted under such circumstances is not impaired
because a secondary effect might result in the im-
peding of union organization, for such result to
some degree must always follow from any valid
rule. The no-solicitation rule being valid on its face
could be lawfully posted where union activities as
here were interfering with production and the
quality of the employees' work. Under such circum-
stances secondary effects resulting in the preven-
tion of unrestrained union activities are, in nature,
damnum absque injuria.4
2. President Pedigo's speeches of May 24, June 15,
and July 26, 1966, and the letter of July 14, 1966
On May 24, June 15, and July 26, 1966, Pre-
sident Pedigo addressed Respondent McEwen's em-
ployees on company time and property. In his May
24 speech among other things Pedigo advised
". . . this Company does not want a union, will
fight the union coming in this plant, and will use
every legal means open to prevent a union in this
plant." Again in his June 15 speech Pedigo said,
". . . I repeat, not only is this Company opposed
to the Union, but we will do everything that can
be done under and within the law to keep a Union
out of this plant." Pedigo ended his July 26 speech
with "Again, with all the sincerity that I have,
I ask you to vote 'NOV'
4 Ward Manufacturing, Inc, 152 NLRB 1270, cited by the General
Counsel, is distinguishable from the instant case in that in such case there
was an " absence of any evidence that any disruption had occurred " In the
other case cited by the General Counsel , Quality Production Company. 162
A letter signed by Pedigo and Manager Robert-
son was mailed to employees on July 14, 1966, in
which, among other things, appeared, "We ask you
to help yourselves and at the same time help us by
voting 'NO' when you mark your secret ballot on
July 27."
In reviewing Pedigo's speech of July 26 and the
letter of July 14 the Regional Director in his report
on objections said:
After careful reading and consideration of
the letter and speech it is found that the main
theme of the Employer's campaign was the fu-
tility of selecting the Union as the collective
bargaining representative, and the dire con-
sequences which might be expected. Thus, the
opening thrust of the letter voices the Em-
ployer's opinion that the Union would not help
the employees or the Company and expresses
the firm belief "...that the Union will hurt you
and it could destroy us-that is just how seri-
ous this matter is." [Emphasis supplied.]
Both appeals to the employees emphasized
the Union's inability to do more than make
promises and stress the fact that only the Em-
ployer could grant benefits. These appeals
were so worded as to convey the message that
the Union's request would fall on deaf ears,
and only by striking could the Union's attempt
to make good on it's promises. Having im-
pressed upon the employees the idea that a
strike was probable- rather than just a possibili-
ty if the Union were selected, the Employer
raised the spectre of plant closing, with pointed
reference to the recent closing of a plant in a
nearby city after organization by the Union.
The reference to the company's intent to
renew its lease contained a proviso which
warned the employees that the Union might
make conditions such that the Company would
not feel justified in renewing its lease, but
failed to indicate what type of conditions
would so influence the decision. Under these
circumstances it is found the letter intended to,
and did, convey the message that the mere
selection of the Union could cause the Em-
ployer to decide not to renew its lease and to
discontinue its operation.
In view of the foregoing, it is found that by
its letter of July 14 or 15 and the speech of
Pedigo on July 26, the Employer created an at-
mosphere of fear in which the free expression
of choice of the employees was rendered im-
possible, and merit is found to this objection.
The Board adopted the Regional Director's
findings and recommendations in these respects
"for the reasons set forth in his report" with the
footnote, "Member Fanning would rely only on
NLRB 1459, the Trial Examiner found that "no particular incident [other
than union activity] precipitated the promulgation of the rules " In the in-
stant case it is uncontradicted that an interference with production was oc-
curring
McEWEN MFG. COMPANY 1001
that part of the preelection statements wherein the
Employer in effect threatened not to renew its lease
and to discontinue its operations in the event the
Union won the election."
The speech and letter were both before the
Board in the representation case. From their con-
text the Board drew certain factual and legal con-
clusions. In this respect the speech and letter were
fully considered and litigated. Moreover the same
parties were before the Board in the representation
case. As to matters litigated in a prior representa-
tion case, "it is established Board policy, in the
absence of newly discovered or previously unavaila-
ble evidence not to relitigate issues which were or
could have been litigated in a prior related
representation proceeding." See Hollywood Brands,
Inc., 163 NLRB 793, and cases therein cited. Ac-
cordingly, the Trial Examiner deems himself bound
by the findings and legal conclusions of the Board
in the prior related representation case.
The findings and conclusions of the Board which
sustained the objections to the election likewise
sustain, in the light of the record as a whole, a find-
ing that Respondent McEwen also violated Section
8(a)(1) of the Act by Pedigo's speech of July 26,
1966, and the letter of July 14, 1966.
3. The alleged misconduct of Plant Manager
Thomas M. Robertson, Supervisor Edna Hargis,
and Supervisor Ova Lee Parchman
Thomas M. Robertson: Thomas M. Robertson
had been the plant manager of Respondent
McEwen Manufacturing Company for over 15
years. He lived next door to the plant in the city of
McEwen, Tennessee, which had a population of
about one thousand persons. McEwen was the prin-
cipal industry in the city. He had been elected
mayor for two terms at McEwen and also served on
the school board. McEwen commenced operations
in 1947.
About the second week in May 1966, one of the
McEwen employees called Robertson by telephone
at his home and told him there was some union ac-
tivity going on. After this telephone call, Robertson
observed that larger groups of employees were
going to the restroom, more time was being spent in
talking at machines and the quality of the work was
not as good as it had been.
Robertson discussed this situation with Pedigo,
and recommended that the no-solicitation notice
above referred to be posted. The notice was posted
on May 20, 1966.
According to Robertson, he became concerned
and began thereafter to check with the employees.5
On May 24, 1966, Pedigo addressed the em-
ployees. After Pedigo made this speech Robertson
talked to more and more of the employees about
the union situation. Robertson advised these em-
ployees that the employer "definitely did not want
any union" and that the employer "could do as
good for them as the union could." From these con-
versationss Robertson said he received the response
that "everybody just seemed perfectly happy."
Among the employees whom Robertson visited
was Zella May Tidwell with whom he conversed
around June 13, 1966. Robertson came to her
machine and told her he wanted to talk to her
about the union situation, saying that she knew
more about unions because she had worked in
union factories and knew a little more about the
situation than others. He further said that some of
the employees had worked in the factory for several
years and that had been the only job they had done.
He told her that unions in bigger factories were all
right where they didn't see their supervisors every
day, but with small factories where the supervisors
were with the employees every day any difficulty
could be ironed out that came up. He told her that
he had done her several favors in the past and he
thought she ought to do him one in return. He
asked her if there was going to be an election. She
told him she did not know, that she had not been
notified that there would be one and she didn't
know whether there would or would not be an elec-
tion. He told her then to think the situation over
and he hoped that when it came to an election she
would vote "No." He further told her that
whichever way it went, and in any event, he wanted
her to know he was her friend. He told her that the
Company would not stand for the Union and that
"if the union come in [they] might lose [their] fac-
tory."
While Robertson denied the foregoing credited
facts he testified that he told Tidwell that he "didn't
want any union" and that he thought that "the
Company would do better for the employees than
the union could do."7
Robertson also conversed with employee Ellen
Elliott at her machine on June 13, 1966. Robertson
Robertson testified.
So I began to check with the employees and ask them if-just
casually- if they were getting along all right , were they having trouble,
and so forth About if the union activity was-some of them I told I
heard the union was being organized , or something to that effect So I
just would ask them if all was all right , if they was happy on their jobs,
if they're satisfied like they was working . I didn 't get no response, so
everything was all right
° Robertson testified
Well, usually I would go up to them and of course knowing them like I
did, I would speak to them and chat with them , and maybe tell them I
would like to talk to them about the union It was after the speech, it
was definite we didn 't want any union, that was sure We definitely
didn 't want any union and of course they understood that , I was sure of
that And I would tell them that we thought we could do as good for
them as the union could, and I certainly wanted them to make up their
minds and I wanted them to vote like they thought was best, but I
hoped they would vote against the union
Having carefully observed the witnesses while testifying and in view of
the fact that statements attributed to Robertson follow a definite pattern
and tend to contribute to McEwen 's efforts to defeat the Union, an effort
which Robertson was sponsoring , the Trial Examiner has credited wit-
nesses whose testimony conflicts with that of Robertson
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that he heard that the Union claimed that a
majority of the employees had signed union cards.
He said that it would be "put to a vote." He further
said he would "like" for her to "think it over" and
"try to see his side" and that if only the Washing-
ton, D.C., company was involved they could close
the plant, but since they had contracts with other
companies, they would not let them close. The
Union, however, could force them out on a strike.
He also told her that however she voted, they had
always been friends and would still remain friends,
and if-she needed her check early, he would see if
he couldn't get it to her at any time.
Robertson likewise talked with employee Nancy
Elliott" on June 13, 1966. Elliott's testimony in
respect to the conversation (which is credited) is as
follows:
Mr. Robertson, he said, "Nancy, I would like
to talk to you about the union." He said that if
the union comes in there is liable to be trouble
and you couldn't say you hadn't been warned.
He said, "although you don't remember it, but
a union has been around before and all it
caused was trouble. The company has been
good to you and we know you want to work,
and you will work because the company has
plenty of work. The only way you wouldn't get
to work would be if the union came in and the
plant would go out of business."
He said, "Of course if it would have been up
to Washington Manufacturing Company, that
they would have closed down at the first
whisper of a union, but at the present we have
contracts with Red Ball and Big Buck and they
won't let us close." He said, "It is easy for any-
one to sign a card, but the voting is what
counts so think it over and vote no."
Robertson also visited with employee Bonnie Sue
(Brown) Weatherly at her machine.9 Robertson
said that he was sure she had "heard of the plant
closing " but that this was "not true"; that the "only
way the plant would close" was for the "Union to
come in and pull a strike." He said that if the
"Union came in it would not only mean that the peo-
ple in the plant would lose their jobs, but he would
lose his also." He further remarked that he had his
home in McEwen and that Weatherly was young
and could "get a job somewhere else, but there was
older people in the plant who couldn't do this."
Weatherly asked Robertson whether the majority
of the employees had signed cards. He answered
that it was true. Robertson further commented that
he had been "good" to Weatherly and that when
she asked him for another job he gave it to her.
A few days after Eunice Little signed her union
card,10 Robertson approached her at her machine.
He asked her whether she had signed a union card.
She answered in the affirmative. Robertson then
said, "... we don't have any union here; we don't
want no union here and if it comes to a union, the
company will fight it.... it would come to a law
suit and it would be a long drawn out affair and we
would be out of work because of it.""
Supervisor Edna Hargis: About 20 employees
worked under Supervisor Hargis, one of whom was
Gloria Tidwell. Hargis held two conversations with
Tidwell at her machine on June 18, 1966. During
the first conversation Hargis asked Tidwell what
she thought of the Union and Tidwell told her she
wasn't against it. Hargis then asked her what was
one thing the Union could do for them and Tidwell
answered that she thought the Union was all right.
On the afternoon of the same day at or about
1:15 p.m. Hargis again came to Tidwell's machine
and said she was talking to Tidwell as a friend. She
asked Tidwell if she had read the letter that the
Company sent to all of its employees. Tidwell told
her that she had read the letter. Hargis said that she
had worked for the Company for several years and
that "she knew the company wouldn't stand to have
a union come in." Hargis further said that where
the employees had steady work now there would be
less chance of having steady working conditions if
the Union came in and that if the Union called
them out on strike, there would be a "possibility"
that the girls wouldn't have their jobs when they
came back . Hargis suggested that Tidwell think it
over and think over what the letter said. Hargis
then asked whether there was anything the Union
could do for the employees. Tidwell responded that
"there were several things it could do for us." Har-
gis repeated that "the Company wouldn't stand to
have a union."12
Supervisor Ova Lee Parchman: Supervisor
a In evaluating Nancy Elliott 's testimony the Trial Examiner has taken
into consideration that her direct testimony was a memorization of her af-
fidavit given to a Board agent At the time she gave her affidavit she had ac-
cess to notes which she had prepared immediately after the conversation
with Robertson These notes were made available to the Respondent's
counsel at the hearing but were not used to impeach the testimony of El-
liott
Weatherly, a sister of Nancy Elliott, also memorized her affidavit The
Trial Examiner has not considered that such fact reflects adversely upon
the credibility of Weatherly
10 Eunice Little signed her union authorization card on May 1 I , 1966
" Robertson admitted that he had talked to Little about the Union He
testified
Well, I told Eunice that it looked like they were going to have an elec-
tion for a union-a union election possibly-and I wanted to talk to
her a minute about it, that when the time comes to vote I wanted her to
make up her mind , and also I told her that I thought that we, the com-
pany-I might have said we-could do as much for her as the union
could do
'- Hargis denied conversing with Tidwell about the Union She testified
that part of her job was to check the employees ' work daily for which pur-
pose she visited the employees ' machines According to Hargis during the
20 years she was supervisor she never talked to employees while "around
their machines about matters not relating to work " The implausibility
of such circumstance occurring , as well as the demeanor of Hargis while
testifying , persuades the Trial Examiner that Hargis was not a credible wit-
ness
McEWEN MFG. COMPANY 1003
Parchman has worked for McEwen for 10 or 12
years and presently supervises approximately 25
employees. Employee Sarah King worked for her
with whom she discussed the Union on June 3, 10,
and 17, 1966.'1
The first conversation occurred shortly after
Pedigo's speech of May 24. In the course of the
first conversation Parchman asked King how she
felt about Pedigo's speech. King asked what she
meant. Parchman replied, "The Union." King
responded, "I am for it 100%." Parchman said,
"Oh Ella ... I thought you were otherwise." Im-
mediately thereafter Parchman was seen talking to
Manager Robertson.
The second conversation took place at the band-
ing machine. Parchman said she wished the "girls
would get to work," to which King replied that she
was working her "tail off", Parchman said she did
not mean King. Parchman added, "Did you know
that there won't be any time that we won't have a
plant here?" and that "any girl that signed a union
card- should starve to death." Parchman also said
that "in a little while [the plant] would be closed
just like the plant at Waverly" and that the plant
had continued about as long as "we could have it."
The Trial Examiner finds that apropos of the en-
vironment created by the Respondent's antiunion
campaign, the Respondent interfered with,
restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act and
thereby violated Section 8(a)(1) as follows:
(a) Robertson unlawfully interrogated employees
as to whether "they were getting along alright" or
"were having trouble" and "if they were happy in
their jobs-if they're satisfied like they were work-
ing.'+14
(b) Robertson unlawfully interrogated employees
with the futility of selecting the Union, to wit: ".. .
we thought we could do as good for them as the
Union could.""
(c) Robertson unlawfully interfered with the
right of self-organization when he mentioned to em-
ployee Zella May Tidwell that he had done her
favors in the past and he thought she ought to do
him one in return; Robertson unlawfully inter-
rogated Tidwell as to whether there was going to be
an election; Robertson unlawfully threatened plant
closing when he stated that "if the Union came in
[they] might lose [their] factory"; and Robertson
unlawfully impressed Tidwell with the futility of
selecting a union by his admitted statement that
"the Company would do better for the employees
than-the Union could."
(d) Robertson created the impression of the
promise of a benefit in the light of his other re-
marks when he told Ellen Elliott that if she needed
her check early he would see if he couldn't get it to
her at any time.
(e) Robertson threatened plant closing by assert-
ing to Nancy Elliott that the "only way you won't
get to work would be if the Union came in and the
plant would go out of business."
(f) Robertson unlawfully threatened employee
Weatherly with loss of employment if the Union
prevailed by stating, in the context used, that if the
Union prevailed "people would lose their jobs" and
he "would lose his also," and Robertson interfered
with rights of self-organization when he said to her
that he had been "good" to her and that when she
asked him for another job he had given it to her.
(g) Robertson unlawfully interrogated employee
Little as to whether she signed a union card;
Robertson unlawfully threatened reprisal by assert-
ing that if the Union prevailed "it would come to a
law suit" and that employees "would be out of
work because of it."
(h) Supervisor Hargis unlawfully interrogated
employee Gloria Tidwell as to what she thought
about the Union and what the Union could do for
the employees; Hargis impressed Tidwell with the
futility of employees' choosing the Union by the
statement that the "company wouldn't stand to
have a union come in" and that there would be less
chance of having steady working conditions if the
Union prevailed.
(i) Supervisor Parchman unlawfully interrogated
employee King as to how she felt about the Union.
Parchman unlawfully threatened reprisal when she
stated that "in a little while" the plant "would be
closed" and girls who signed union cards "should
starve to death. 1116
B. The Alleged Violation of Section 8(a)(5) of the
Act
1. The showing of interest
On May 4 and 9, 1966, the Union held joint or-
" Parchman denied the testimony of King which is credited In view of
Robertson 's extensive and open contacts with employees during the union
organizational campaign , which were readily observable , and the thrust of
the McEwen 's antiunion campaign , it seems likely that Parchman would
have conversed with King and made the remarks attributed to her For this
reason the Trial Examiner has resolved credibility in favor of witness King
Demeanor has been evaluated
"The interrogations herein found to be unlawful , coming at the
beginning of a union organizational campaign among McGwen's em-
ployees, were clearly initiated in order that McEwen could elicit important
information most useful to it in formulating a program whereby it could
draw its employees away from union affection Such interrogations which
encroached upon priviledged union matters served no legitimate employer
purpose and reasonably tended to restrain or interfere with employees in
the exercise of rights guaranteed by Sec 7 of the Act See Jefferson Wire
and Cable Corp, 159 NLRB 1384
1b In The Trane Co, 137 NLRB 1506,15 10
There is no more effective way to dissuade employees from voting for
a collective bargaining representative than to tell them that their votes
for such representative will avail them nothing
In N L R B v Bailey Co, 180 F 2d 278,279 (C A 6)
An employer interferes with the right of self-organization when he
emphasizes to his employees that there is no necessity for a collective
bargaining agent
16 Each of the foregoing findings has not been considered in isolation but
have been weighed upon the basis of Respondent McEwen's entire course
of conduct and evolved from the record as a whole
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganizational meetings of McEwen and Waverly
Garment Company, Inc., employees. Employees
from both plants were present. Cleron B. Smith,
union area director, addressed both meetings.
Smith advised the employees present "to hurry up
and get people signed up." Blank union authoriza-
tion cards were given to the employees present and
they were instructed by Smith on how to solicit
other employees. McEwen employees were told to
return any signed cards obtained to McEwen em-
ployee Agnes Hooper. Some of the employees
signed authorization cards at the meetings. Other
authorizations were obtained by employee solicitors
pursuant to Smith 's instructions.
There were 109 authorization cards" offered for
the purpose of proving that a majority of McEwen's
employees had designated and selected the Union
as the exclusive representative for the purpose of
collective bargaining . Of the 109 cards, 100 were
admitted as seemingly valid cards for the purpose
of establishing the Union's alleged majority status.''
The parties stipulated that as of May 28, 1966,19
eligible employees in the appropriate unit num-
bered 172. Thus, in order for the Union to establish
a majority interest in the appropriate unit, it was
necessary, on May 28, 1966, to have in its posses-
sion valid authorization cards numbering 87. Ac-
cordingly, if 14 of the 100 cards are invalid for the
purpose of establishing the Union's majority, the
Union's claim as the representative for the purposes
of collective bargaining must fail.
The card of Margie James: James' card was
authenticated by employee Weatherly who stated
she saw James sign the card. James was called as a
witness by McEwen. James testified without con-
On the face of the card appeared
Date of Signing
1, (Print your full name here ) now employed by (Name of Company)
(Location ) have voluntarily accepted membership in the AMALGA-
MATED CLOTHING WORKERS OF AMERICA (AFL-CIO) and
designate said Union as my collective bargaining agent in all matters
pertaining to wages, hours and other conditions of employment I
hereby further subscribe to the dues deduction provisions printed on
the reverse side of this card
Signed
(Operation and Department)
(Phone No ) (Signer's Home Address)
On the reverse side of the card appeared
I hereby authorize my Employer (the Company named on the
reverse of this card ) to deduct from my wages dues, that may be due to
the Union ( the Union named on the reverse of this card ) This authori-
ty to make such deduction shall be irrevocable for the period of one
year until the termination date of the collective bargaining agreement
between my Employer and the Union, whichever occurs sooner, and I
agree and direct that this authorization shall be automatically renewed
and shall be irrevocable for successive periods of one year each and
for the period of each succeeding collective bargaining agreement
between my Employer and the Union , whichever shall be shorter, un-
less written notice is given by me to my Employer and the Union not
more than twenty (20) days and not less than ten (10) days prior to the
expiration of each period of one year or of each collective bargaining
agreement between my Employer and the Union, whichever occurs
sooner If a new worker this authorization becomes effective at the
end of my trial period
tradiction20 that Weatherly said to her that "they
had to have so many to sign the cards so they could
have an election" and if she would sign the card she
"wouldn't have to join the union if [she] didn't
want to." James did not read the card.
From the foregoing testimony it appears that
James signed the card upon the oral representation
that such card would not be used for other than
election purposes. Such a finding is buttressed by
the fact that the employee did not read the card.
Accordingly the Trial Examiner finds that James'
card cannot be counted toward establishing the
majority status of the Union. See Jefferson Wire and
Cable Corp., 159 NLRB 1384, footnote 3, and cases
therein cited.
The card of Hazel Curtis: Curtis testified (without
contradiction) in respect to what employee Pearl
Jones said to her, "She asked me if I would sign a
union card and I asked her what the card was for
and she said, `For a union election."' Curtis further
testified that she had been told of no other purpose
for signing the card. Curtis did not read the card.
For the same reasons expressed in connection
with employee James' card, the Trial Examiner
finds that Curtis' card cannot be counted toward
establishing the majority status of the Union.
The card of Margaret Nell Frazee- Frazee's card
was authenticated by employee Pearl Jones who
testified that she saw Frazee sign the card. Frazee,
called as a witness for McEwen, testified without
contradiction that Jones said "... they had to have
a majority before they could have an election and if
they didn't get that, they couldn't have an elec-
tion." Frazee did not read the card.
For the same reasons expressed in connection
"Cards of the following employees were excluded Virginia Tester, Ken-
neth Hollard , Erline Bledsoe , Pearline Dominick , Fay Branch , Lula Smith,
Bessie Lou Capps, Martha Ann Craft, and Nettie Boyd
18 May 28, 1966, was the date upon which McEwen received the Union's
letter informing it that the Union had been "designated by a majority of
[McEwen's] production and maintenance employees as their collective
bargaining representative " The letter included the paragraph
We are prepared to prove our majority by submitting our authoriza-
tion cards to a mutually agreeable third person provided that under no
circumstances will the names of those employees who signed cards be
revealed We , therefore , request at this time an appointment to meet
with you at your earliest convenience in order to commence collective
bargaining negotiations
20 In crediting witnesses called by the Respondent to rebutt the prima
facie validity of the cards considered hereafter , and in assessing the proba-
tive value of the evidence of the General Counsel and the Charging Party,
the Trial Examiner has considered that neither the General Counsel nor the
Charging Party called witnesses in rebuttal or explained their failure to call
such witnesses although such witnesses appeared to have been available for
testimony , some of whom testified in behalf of the General Counsel when
he presented his case-in-chief
In N L R B v Ohio Calcium Co, 133 F 2d 721, 727 (C A. 6), the
court said
The well-known rule is applicable to Abel's testimony that when a
party produces such evidence as it is in his power to produce, its
probative effect is enhanced by the silence of his opponent and also
where the party on whom rests the burden of evidence as to a particu-
lar fact has the evidence within his control and withholds it, the pre-
sumption is that such evidence is against his interest and insistence
McEWEN MFG. COMPANY 1005
with employee James ' card the Trial Examiner rings
that Frazee 's card cannot be counted toward
establishing the majority status of the Union.
The card of Ruth Pittman : Pittman 's card was
authenticated by employee Agnes Hooper who
stated she saw Pittman sign the card . Pittman,
called as a witness for McEwen , testified without
contradiction that she signed the card and gave it to
Hooper without reading it . She said that Pearl
Jones , Bonnie Brown ( Weatherly ), Agnes Hooper,
and Christine Forrester had "all said it was to be-
so we could have an election ." Testifying specifi-
cally concerning her conversation with Hooper she
testified , ". . . she just asked me to sign and told me
they wanted to hold an election-so they could get
enough to hold an election."
For the same reasons expressed in connection
with employee James ' card the Trial Examiner finds
that Pittman 's card cannot be counted toward
establishing the majority status of the Union.
The card of Margie Adams : Adams, called as a
witness for McEwen, testified without contradiction
that prior to signing the card she had a discussion
with Bonnie Brown [ Weatherly ] who had asked her
to sign the card . Brown said that the purpose of the
card "was to get an election ; to get enough cards
for an election ." Adams did not read the card.
For the same reason expressed in connection
with employee James ' card the Trial Examiner finds
that Adams ' card cannot be counted toward
establishing the majority status of the Union.
The card of Dorothy Parchman : Parchman, as a
witness for McEwen, testified without contradiction
that at the time she was given the card by employee
Eunice Maybury, Maybury said " it was to get so
many cards signed for an election of the Union."
Parchman did not read the card . Parchman
testified , "I just sat with her when she filled it out
and then I signed it."
For the same reasons expressed in connection
with employee James ' card the Trial Examiner finds
that Parchman 's card cannot be counted toward
establishing the majority status of the Union.
The card of Blanche White : White , as a witness
for McEwen , testified without contradiction that
she signed and dated the card given to her by em-
ployee Hettie Rye but did not read it. At the time
Rye told her that "they had to have so many before
the election...." Rye also said that she "could
vote any way [ she] wanted to vote when the elec-
tions came in."
For the same reasons expressed in connection
with employee James ' card the Trial Examiner finds
that White 's card cannot be counted toward
establishing the majority status of the Union.
The card of Pearlene Brooks: Brooks, as a witness
for McEwen , testified without contradiction that
Earline Bailey gave her the card and said that "it
was to show that we might be interested in the
Union ." Brooks did not read the card.
In view of the fact that Brooks did not read the
card it may not be inferred from the representation
of employee Bailey that Brooks signed the card for
the purpose set forth on the card. It would appear,
therefore, that the General Counsel has not
sustained his burden of proving that the card was
signed for the purpose of designating the Union as
Brooks' bargaining agent. The Trial Examiner finds
that Brooks' card cannot be counted toward
establishing the majority status of the Union.
The card of Irene Buchanan: Buchanan's card was
authenticated by Agnes Hooper who testified that
she saw Buchanan sign the card . Buchanan, as a
witness for McEwen, testified without contradiction
that Hooper said to her when she solicited the card
that "it was to get enough cards to hold an elec-
tion." Buchanan testified that she read the card and
observed the language on the back which indicated
that she was signing a checkoff of dues for the
Union. Whereupon, she asked Hooper whether she
would "automatically be a member of the Union" if
she signed the card. Hooper replied "No, it was just
to get enough for an election."
From the foregoing testimony, it follows that
Buchanan signed the card upon the representation
that it would not be used other than for election
purposes. The Trial Examiner finds that Buchanan's
card cannot be counted toward establishing the
majority status of the Union.
The card of Lemuel L. Palk: Ellen Betty Elliott
testified that she gave Palk a blank authorization
card. Later he told her it was in the pocket of his
car. Elliott picked up the card out of the pocket of
the car. At the time a signature was on the card. El-
liott inserted the name of McEwen and the word
"bundleboy." Elliott did not see the card signed.
Palk was not working for the employer at the time
of the hearing . His absence as a witness was not ac-
counted for. The Trial Examiner is of the opinion
that the General Counsel has not submitted suffi-
cient proof to establish authenticity of Palk's al-
leged signature by a preponderance of the
evidence. The Trial Examiner finds that Palk's card
cannot be counted for the purpose of establishing
the majority status of the Union.
The card of Eldton Bishop: Agnes Hooper
testified that she witnessed the execution of
Bishop's card on May 11, 1966. The printed name
Eldton Bishop appears on the card over the words
"Print your full name here" and opposite the word
"Signed." Hooper testified that she printed the
name Eldton Bishop over the words "Print your full
name here." Bishop was not called to verify his al-
leged printed signature. Bishop's Form W-4 (Em-
ployee's Withholding Exemption Certificate) signed
April 26, 1966, shows Bishop's signature signed in
script as "Roy Eldton Bishop." There is no visible
similarity between the printed signature attributed
to Bishop and the script signature appearing on the
Form W-4.
Since Bishop's alleged signature on the card does
not appear to have been written in the manner in
which he customarily signed documents connected
with his employment it is the opinion of the Trial
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner that the General Counsel has not sub-
mitted sufficient proof to establish the authenticity
of Bishop's alleged card by a preponderance of the
evidence. The Trial Examiner finds that Bishop's
card may not be counted for the purpose of
establishing the majority status of the Union.
The card of Norma Jean Black: Employee Carolyn
Betty testified that she gave a blank authorization
card to employee Black who returned it to her with
a printed signature thereon on May 10, 1966. Betty
did not see Black execute the card. Black has not
been employed by McEwen since July 15, 1966.
Black was not called for testimony. Black's Form
W-4 reveals that she signed her name in script. The
Trial Examiner is unable to discern any similarity
between the printed signature attributed to Black
and the script signature appearing in the Form W-4.
Since Black's alleged signature on the card was
not verified by Black or a person who witnessed the
execution of the signature and does not appear to
be written in the manner in which Black customari-
ly signed documents connected with her employ-
ment, it is the opinion of the Trial Examiner that
the General Counsel has not submitted sufficient
proof to establish the authenticity of Black's alleged
card by a preponderance of the evidence. The Trial
Examiner finds that Black's card can not be
counted for the purpose of establishing the majority
status of the Union.
The card of William D. Shields: Agnes Hooper
testified that she witnessed the execution of the
signature, William D. Shields, on a union authoriza-
tion card on May 10, 1966. No employee by the
name of William D. Shields was listed on McEwen's
payroll of May 28, 1966. On the payroll appears a
"Billy Shields" and a "Bobbie Shields." A Form
W-4 shows the name "Billy Shields" at the top and
"Billy D. Shields" opposite the word "Signed."
Billy Shields left the employ of McEwen during the
week ending June 6, 1966. William D. Shields
was not called for testimony. The record is barren
of any proof that the same person who signed the
Form W-4 also signed the card.
Under these circumstances the Trial Examiner is
of the opinion that the General Counsel has not
submitted sufficient evidence to establish by a pre-
ponderance of the evidence that Billy Shields
whose name appears on the May 28, 1966, payroll
is the same person who signed William D. Shields
on the card. The Trial Examiner finds that Shields'
card may not be counted for the purpose of
establishing the majority status of the Union.
The card of Ruby Nell Christian: As a witness for
McEwen, Christian verified her signature on the
card and testified that her signature was the only
entry she made on the card. Christian's signature is
in pencil; all other entries on the card are in ink.
Christian testified that to the best of her recollec-
tion the card was signed about the middle of June,
just before the vacation period. Hooper was sitting
next to Christian in an automobile at the time she
signed the card. Christian said Hooper had been
"hounding" her everyday to get her to sing the card
and that she signed it so that Hooper would "hush."
Hooper was not called to contradict the testimony
of Christian.21
Under these circumstances the Trial Examiner is
of the opinion that the General Counsel has not
submitted sufficient evidence to establish by a pre-
ponderance of the evidence that Christian signed
her card prior to May 28, 1966. The Trial Ex-
aminer finds that Christian's card can not be
counted for the purpose of establishing the majority
status of the Union as of May 28, 1966.
Thus it appears that on May 28, 1966, the Union
had not been designated or selected by the majority
of McEwen's employees in an appropriate unit as
the exclusive representative for the purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act. Accordingly those allegations in
the complaint charging a violation of Section
8(a)(5) of the Act are dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion I[[, above, occurring in connection with its
operations set forth in section I, above, have a
close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has en-
gaged in certain unfair labor practices, it is recom-
mended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Furthermore, in accordance with the Board's
decision in H. W. Elson Bottling Company, 155
NLRB 714, it is recommended that the Union be
given an opportunity to present its views to the vot-
ing unit employees assembled on company time and
premises. It is further recommended that, upon the
request of the Union, respondent shall make
available to the Union and its representatives at a
mutually agreeable time within 3 months of the
Recommended Order herein, suitable facilities such
as are customarily used for employee meetings so
that the Union may speak to the voting unit em-
ployees assembled on company time. Such facility
shall be available for one 1-hour meeting.
Y' On direct examination Hooper was handed a number of cards includ-
ing Christian's card and was asked whether they were signed on "the date
indicated on the cards " She answered , " I would say they were " Such
testimony , in answer to a leading question, in the light of Christian's
testimony , appears to have little probative value
McEWEN MFG. COMPANY 1007
It is further recommended that upon the request
of the Union made within 1 month from the date of
the Recommended Order herein , the Respondent
immediately grant the Union and its representatives
reasonable access for a 3-month period to its bul-
letin boards and all places where notices to em-
ployees are customarily posted.
CONCLUSIONS OF LAW
within the meaning of Section 2( 6) and (7) of the
Act.
3. By interfering with , restraining , and coercing
employees in the exercise of their rights guaranteed
them by Section 7 of the Act, Respondent has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce
[Recommended Order omitted from publica-
tion. ]